                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1517
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Marcella M. Scharton

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                           Submitted: October 15, 2012
                             Filed: December 4, 2012
                                  [Unpublished]
                                  ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       A jury convicted Marcella M. Scharton of stealing U.S. money or property,
defrauding the Social Security Administration (SSA), and making a false statement
to the SSA — in violation of 18 U.S.C. § 641 and 42 U.S.C. § 408(a)(4), (a)(3). She
appeals, arguing the district court1 erred in denying her motion for a mistrial based on
the court’s questions and comments during trial. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.

       Scharton’s husband received Social Security Disability Insurance benefits. A
beneficiary cannot earn above the amount that the SSA considers “substantial gainful
employment.” At trial, an expert testified to this amount. After the government’s
redirect, this exchange occurred:

      COURT: Mr. Duden, before you step down, just one question. You
      used the number 810. If you earned more than 810, then the Social
      Security Administration would – if using the wages or value test, would
      conclude that you engaged in substantial gainful activity. Did I
      understand you correctly?

      WITNESS: Right. The figure at that point was $810 per month. If the
      earnings or the value of those earnings was above that amount, we would
      consider it substantial gainful work.

      COURT: And that would be calculated on a monthly basis?

      WITNESS: Yes, sir.

During Scharton’s follow-up questioning, the court interjected:

Q [by Defense Counsel]: And the determination as to what Mr. Seevers allegedly
owes to the Social Security Administration is based upon 2004?

             COURT: [Defense Counsel], the two things – they’re different
      things. The amount that [Scharton’s husband] owed back is based upon



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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      what he received. The $810 is a test for whether he’s entitled to receive
      anything.

             DEFENSE COUNSEL: I understand that, but this witness has
      made it very clear that they – it seems to me that he has made it very
      clear that [the SSA] decided to use the amount of $810 in 2004 to this
      continued benefits in 2009, so to speak. And therefore, they’re saying
      you owe X amount of money based upon the $810 in 2004, and this
      amount is $76,000, even though that amount of 810 in 2004 changed in
      2009, and we do not know what that amount is.

            COURT: Well, this is not a place for us to argue about that, but
      there are two different questions. Do you have another follow-up
      question?

              DEFENSE COUNSEL: No, Your Honor. I think I’ll leave it at
      that.

The next morning, Scharton moved for a mistrial, which the court denied. In the final
instructions, the judge admonished the jury generally that any questions or remarks
by him did not express any opinion about the case. Eighth Circuit Model Jury
Instructions § 3.02 (2001).

       Scharton argues that the district court’s two questions and comments deprived
her of a fair trial, requiring a mistrial. This court reviews for abuse of discretion the
denial of a motion for a mistrial. United States v. Brandon, 521 F.3d 1019, 1026 (8th
Cir. 2008). “The district court may question witnesses to clarify ‘legal and factual
matters’ so long as the court ‘remains impartial and does not become an advocate for
either side.’” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010), citing
United States v. Henderson, 770 F.2d 724, 729 (8th Cir. 1985). This court uses a
“balancing test . . . to evaluate whether in the context of the overall record the court’s
questions destroyed the fairness of a trial.” United States v. Flying By, 511 F.3d 773,
777 (8th Cir. 2007).


                                           -3-
       The district court’s two questions clarified how the SSA determined whether
Scharton’s husband was substantially, gainfully employed. “The district court was
permitted to ask these questions under Fed. R. Evid. 614(b).” Pickar, 616 F.3d at 827.
The comments clarified the difference between the amount Scharton’s husband owed
the SSA and the amount the SSA used to determine “substantial gainful employment.”
Neither the questions nor comments “placed the defense at a disadvantage” or “g[a]ve
the jury the impression that the court favored the government.” United States v.
Almeida-Perez, 549 F.3d 1162, 1174 (8th Cir. 2008); cf. United States v. Van Dyke,
14 F.3d 415, 418 (8th Cir. 1994) (holding that the district court’s “one-sided and
distractive” comments “throughout the trial” deprived the defendant of a fair trial);
United States v. Singer, 710 F.2d 431, 436 (8th Cir. 1983) (en banc) (“[T]he judge
injected himself into the trial throughout the entire proceeding.”).

      The judgment of the district court is affirmed.
                     ______________________________




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