                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 29 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-50438

              Plaintiff - Appellee,              D.C. No. 8:08-cr-00267-R-2

  v.
                                                 MEMORANDUM*
JOSEPH GRANSON PRITCHARD,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50459

              Plaintiff - Appellee,              D.C. No. 8:08-cr-00267-R-3

  v.

RONNIE JOSEPH JOHNSON, AKA
Ronnie Johnson,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50490

              Plaintiff - Appellee,              D.C. No. 2:99-cr-01214-R-1



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

RONNIE JOSEPH JOHNSON,

                Defendant - Appellant.


                      Appeal from the United States District Court
                         for the Central District of California
                       Manuel L. Real, District Judge, Presiding

                          Argued and Submitted March 7, 2012
                                 Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

         Joseph Granson Pritchard and Ronnie Joseph Johnson appeal their

convictions for conspiracy to commit bank robbery (18 U.S.C. § 371), armed bank

robbery (18 U.S.C. § 2113(a); (d)), and using a firearm during a crime of violence

(18 U.S.C. § 924(c)). We reverse. Because the parties are familiar with the factual

and procedural history of the case, we need not recount it here.

         Appellants contend that the trial judge interfered with the trial so extensively

as to render it unfair. After a thorough review of the record, we agree.

Accordingly, we reverse and remand this case for a new trial before a different

judge.

         While a district court judge has considerable discretion in the management

of his courtroom, the judge “must be ever mindful of the sensitive role [he] plays

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in a jury trial and avoid even the appearance of advocacy or partiality.” United

States v. Harris, 501 F.2d 1, 10 (9th Cir. 1974). A trial court’s participation in the

proceedings warrants reversal “if the record ... leaves the reviewing court with an

abiding impression that the judge’s remarks and questioning of witnesses projected

to the jury an appearance of advocacy or partiality.” United States v. Mostella, 802

F.2d 358, 361 (9th Cir. 1986) (internal quotation marks omitted).

      The trial judge interrupted the defense over 70 times, but he interrupted the

government only once. His interruptions of the defense’s cross-examination of a

cooperating witness effectively prevented the defense from presenting its theory of

impeachment. He referred to “gang members” in front of the jury; although the

statement was ambiguous, the jury could well have understood it as applying to the

defendants. We have criticized some of the trial judge’s statements in the past, and

he repeated them here, almost verbatim. Compare United States v. Scott, 642 F.3d

791, 799 (9th Cir. 2011) (noting the trial judge’s criticism of defense counsel for

“failing to ‘give th[e] jury [ ] credit for brains’”) with the judge’s statement in this

case (“THE COURT: Counsel, the jury can see it. Please. Give them some

principles of brains.”). He also accused defense counsel of “playing games” for

legitimately cross-examining a witness. During Johnson’s closing argument, the

trial judge sua sponte instructed the jury that “[t]he investigation [of the


                                           -3-
government] is not on trial here; the defendants are” – erroneously implying that

the jury was not to scrutinize the government’s investigation or consider the

absence of evidence in reaching its verdict.

      Considered in isolation, these errors might not warrant reversal. However,

considered cumulatively, they lead us to conclude that the trial judge “created an

atmosphere in which an objectively fair trial could not be conducted.” Harris, 501

F.2d at 11 n. 20. “[T]he cumulative effect was so pervasive and prejudicial as to

require a new trial.” United States v. Pena–Garcia, 505 F.2d 964, 967 (9th Cir.

1974).

      We therefore REVERSE Appellants’ convictions, VACATE their sentences,

and REMAND for a new trial with instructions that the Clerk of the Court for the

Central District of California reassign this case to a different judge.

      REVERSED AND REMANDED WITH INSTRUCTIONS.




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