United States Court of Appeals For the First Circuit
No. 07-1962
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL A. MELENDEZ-RIVAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Lynch, Chief Judge, Selya and Lipez, Circuit Judges.
Rafael F. Castro Lang for appellant. Nelson Pérez-Sosa, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, was on brief for appellee.
May 15, 2009 LYNCH, Chief Judge. In a crime apparently motivated by
jealousy over a woman, the woman's suitor, Kelvin Ramos, was taken
from his motorcycle in a Puerto Rican housing project, forced into
a van by a group of assailants, including defendant, and murdered
by the father of her children. The murderer was killed, perhaps by
Ramos's friends, before any federal charges were brought.
The defendant here, Angel Melendez-Rivas, maintained his
innocence on the stand and said he was forced to participate in the
crime. He was convicted of conspiracy and of aiding and abetting
a motor vehicle hijacking with intent to cause death, as well as of
a firearms offense during and in relation to the crime. Three
other co-defendants were also charged, but the indictments against
them were dismissed without prejudice, at the government's request,
on the eve of trial. Melendez-Rivas, who had no prior criminal
record, was sentenced to 50 years' imprisonment, after the
government declined to seek the death penalty.
Melendez-Rivas appeals, primarily arguing that the
evidence was insufficient to meet the elements of the offenses of
conviction and that he is entitled to an acquittal. We disagree.
Defendant's second argument is that the intervention of the trial
court in questioning a defense witness went beyond the appropriate
limits and put prejudicial, inadmissible hearsay before the jury,
to his detriment. We are sufficiently concerned about the possible
interference with defendant's fair trial rights engendered by the
-2- particular questions and answers that we vacate the conviction and
remand for a new trial.
I.
Appeal From Denial of Rule 29 Motion
We first address the defendant's argument that the
evidence was insufficient. If defendant is correct, then the case
ends and he may not be tried again. See Smith v. Massachusetts,
543 U.S. 462, 467 (2005) ("[T]he Double Jeopardy Clause of the
Fifth Amendment prohibits reexamination of a court-decreed
acquittal to the same extent it prohibits reexamination of an
acquittal by jury verdict."). "For purposes of assessing the
sufficiency claim, we recite the facts in the light most favorable
to the verdict." United States v. Upton, 559 F.3d 3, 6 (1st Cir.
2009).
A. Factual background
On the evening of June 16, 2005, Kelvin Ramos drove his
Hyabusa Suzuki motorcycle to the Quintana Housing Project, where
his girlfriend Taishanet Falu lived. He wore a red shirt, short,
black pants, and jewelry, including a bracelet watch and
distinctive gold chain. The chain was a thick "Cuban-type" chain
with two panthers and the letter "K" on it. While visiting
Taishanet, Kelvin received a phone call and went to leave.
Taishanet also left her home and went over to visit her sister
-3- GinLin Falu Garcia and her cousin Glenda Falu Rivera, both of whom
also lived at the Quintana Project.
As Kelvin got on his motorcycle, three men surrounded
him. At trial, Taishanet identified them as Edwin, Taishanet's
estranged husband and the father of her children, Johal, a known
associate of Edwin, and Melendez-Rivas. Edwin held a gun up to
Kelvin's face on one side of the motorcycle, while Johal stood on
the other side of the motorcycle, and Melendez-Rivas stood behind
Johal. Taishanet yelled at Edwin and begged him not to harm
Kelvin, at which point Edwin said to her: "Don't you get up close
here, because I will hit you with the gun, you little bitch."
Johal grabbed Taishanet while Edwin confronted Kelvin and told him
to pull up his shirt. Kelvin pulled out his gun from under his
shirt and gave it to Edwin, who handed the gun to Melendez-Rivas.
Taishanet continued to beg Edwin not to hurt Kelvin. Kelvin told
her he would be fine and asked her to leave.
Soon after, "Bondy," co-defendant Luis Nieves-Burgos,
arrived in a white and gray van.1 Bondy got out of the van as
Edwin and Melendez-Rivas struggled with Kelvin to get him off the
1 The government's theory of the events of June 16 differs substantially from the defendant's account of the events that evening, as we discuss later in more detail. The government theorized based on Taishanet's testimony that Bondy drove the van to the scene of the kidnapping, that Johal drove the van away, and that the defendant was already there with Edwin and Johal before the van arrived. The defendant testified that he drove the van to and from the scene, an account consistent with the testimony of one government eyewitness.
-4- motorcycle and into the back of the van. Edwin and Melendez-Rivas
forced Kelvin into the van, which Johal then drove away.
Shortly afterward, "Jonty," co-defendant John T. Ayala,
arrived with "Pupen," co-defendant José Luis Cora-Meléndez. They
tried to start the motorcycle but were unable to ride it. Later,
Guillermo Rodriguez arrived and drove the motorcycle away.
Taishanet then returned to her house with her sister, who
contacted Kelvin's wife, Irysa García-Reyes to let her know what had
happened to Kelvin and that she thought he had been killed.
Taishanet tried to call Kelvin's cell phone several times; once,
Edwin picked up, and when Taishanet told him not to harm Kelvin,
Edwin started laughing.
Taishanet testified that later that evening, she saw
Edwin and Melendez-Rivas in the project. She saw that Edwin was
wearing Kelvin's jewelry. Edwin said to her, "I gave him 30 because
he is a pig."
Kelvin's body was found two days later with thirty-two
gunshot wounds. There was no physical evidence other than the
jewelry linking the death to the defendant. The government's
argument at trial was that the defendant's presence at the scene
where Kelvin was forced off his motorcycle and the fact that Edwin
handed Melendez-Rivas Kelvin's gun proved intent to aid and abet.
-5- B. Sufficiency challenge
Defendant's argument that the district court erred in
denying his motion for acquittal is based on a misapprehension of
the elements of the statutory offense; it is also foreclosed by
circuit precedent. Our review is de novo both because we are
reviewing evidentiary sufficiency and because we are interpreting
the terms of a statute. United States v. Teleguz, 492 F.3d 80, 86
(1st Cir. 2007) ("Our review of legal questions is de novo, and we
review the entire record on [the defendant's] sufficiency claim.").
If a reasonable factfinder could have found the defendant
guilty beyond a reasonable doubt, we must affirm. United States v.
Lipscomb, 539 F.3d 31, 40 (1st Cir. 2008) ("Viewing the evidence in
the light most flattering to the jury's guilty verdict, we assess
whether a reasonable factfinder could have concluded that the
defendant was guilty beyond a reasonable doubt.").
Here, the jury answered a special verdict that "the
taking of the motorcycle occur[red] with the intent to cause death
or serious bodily injury [to Kelvin Ramos]" and that "[t]he intent
or motive behind the killing of [Ramos] was . . . jealousy."
Melendez-Rivas argues from this second finding. He says
the relevant motive which separates the federal crime from a state
crime is the motive for the ultimate killing (not the taking of the
vehicle), and since the motive for the killing found by the jury
here was jealousy, no federal crime was committed.
-6- He is wrong. Not only does the specific language of the
statute say otherwise but our case law has already rejected this
argument.
The statute reads:
Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempt to do so, shall . . . (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.
18 U.S.C § 2119(3) (emphasis added).
The requisite intent was that first found by the jury:
that at the time the victim's motorcycle was taken, it was done with
the intent to cause death or serious bodily injury. The relevant
intent may be conditional -- that is, the intent requirement is
satisfied if at the time Melendez-Rivas took control of the
motorcycle, he had an intent to kill or cause serious bodily injury
to the driver, whether or not the intent was necessary to take the
vehicle. Holloway v. United States, 526 U.S. 1, 12 (1999) ("The
intent requirement of § 2119 is satisfied when the Government proves
that at the moment the defendant demanded or took control over the
driver's [vehicle] the defendant possessed the intent to seriously
harm or kill the driver if necessary to steal the [vehicle] (or,
alternatively, if unnecessary to steal the [vehicle])."). The
statute does not require that the taking of the motor vehicle be "an
-7- ultimate motive for the crime." United States v. Rivera-Figueroa,
149 F.3d 1, 4 (1st Cir. 1998). Rather, "[i]t is enough that the
defendant be aware that the action in which he is engaged, whether
by himself or through direction or assistance to another, involves
the taking of a motor vehicle." Id.
More recently, in United States v. García-Álvarez, 541
F.3d 8 (1st Cir. 2008), this court rejected an argument similar to
defendant's. Defendant there argued that he took the victim's car
solely for use as a getaway vehicle and that the taking of the car
was never the motive for the crime. García-Álvarez affirmed the
Rivera-Figueroa holding that the taking of a vehicle need not be the
ultimate motive for the crime under § 2119(3). Id. at 6.
Based on the evidence here, Melendez-Rivas had to be
aware that he was involved in the taking of a motor vehicle, and
that Ramos had already started the motorcycle when Melendez-Rivas
and his co-defendants surrounded him. They had to take control of
the motorcycle in order to subdue Ramos. In doing so, they pointed
a gun at the victim, showing an intent to cause death or serious
injury, an intent reinforced by what happened next. The evidence,
viewed in the light most favorable to the government, was
sufficient.
We affirm the denial of his motion for judgment of
acquittal.
-8- II.
Questioning by the District Court and Answers Elicited
Two separate strands of legal doctrine are combined in
defendant's second challenge. He first argues that certain
questions, which were asked by the trial judge, elicited answers
that were inadmissible and prejudicial because the responses
erroneously suggested to the jury that Melendez-Rivas was involved
in other crimes not charged in the instant indictment.
Secondly, defendant argues, the prejudicial effect on
defendant was made worse by the fact that it was the trial judge who
asked the questions sua sponte and then refused to give any curative
instruction. In reviewing the district court's questioning, our
"inquiry . . . necessarily turns on the question of whether the
complaining party can show serious prejudice." Logue v. Dore, 103
F.3d 1040, 1045 (1st Cir. 1997).
A. Conflicting testimony presented at trial
We set the stage. The evidence presented was largely
testimonial, and the witnesses' accounts often conflicted. The jury
faced credibility contests on several central issues in the case.2
First, Melendez-Rivas testified that he was driving the van home,
2 Indeed, at closing argument, the prosecution emphasized the inconsistencies and credibility contests in the case, characterizing the defendant's account as too "convenient" to be believed, and insisting that Taishanet could not have simply "ma[d]e . . . up" her account.
-9- when he arrived at a spot in the street where he was blocked by the
kidnappers who were confronting Kelvin. He further testified that
he only became involved in driving the getaway van because he had
been threatened by Edwin and Johal, who carried loaded guns when
they demanded he become involved and drive the van. He feared he
would be killed if he did not participate. He said he did not force
Kelvin into the van. Finally, he also testified that he had no
prior criminal record and was not friendly with the other men
accused of kidnapping Kelvin. The crime was motivated by Edwin's
jealousy, the defendant claimed, and he carried no grudge against
Kelvin and had no reason to be involved in killing him. We describe
the testimony in more detail below.
The prosecution anticipated and countered defendant's
themes with Taishanet's testimony, which was the primary evidence
presented against the defendant at trial.3 Taishanet's testimony
painted a picture of voluntary participation by the defendant.
Taishanet placed the defendant as already at the basketball court
with Edwin and Johal: she testified that the three of them
3 Defendant also argues that the prosecution engaged in improper vouching during its questioning of Taishanet and that the district court erred in admitting her testimony that the FBI had instructed her to tell the truth. The defendant did not object on this basis in the district court, and therefore our review is for plain error. There was no error in this regard, let alone plain error.
-10- confronted Kelvin and forced him off his motorcycle.4 Indeed, the
defendant took the gun from Edwin when Edwin disarmed Kelvin. This
was the strongest evidence at trial contradicting defendant's claim
of coercion.
Taishanet testified that Bondy, not Melendez-Rivas, then
arrived in a white van and that it was Edwin, Johal, and the
defendant who forced Kelvin into the van. She stated that Bondy got
out of the truck, that Edwin and Melendez-Rivas forced Kelvin into
the back of the van, and that Johal (not defendant) then got into
the van and drove it away. Further, she testified that later that
evening, she saw Edwin, accompanied by Melendez-Rivas, and that
Edwin (and not Melendez-Rivas) was wearing Kelvin's jewelry. The
defendant, by contrast, claimed he did not see Edwin and Johal until
the next day.
To attack Taishanet's credibility, defense counsel on
cross-examination elicited testimony from Taishanet that she never
reported Kelvin's kidnapping to the police, that she had received
$2600 for her testimony, and that she associated with several
notorious local criminals and had never reported their criminal
activities.
One of the prosecution's two other eyewitnesses, GinLin,
arrived on the scene after the altercation had already begun and so
4 Although witnesses and the government described Kelvin as Taishanet's boyfriend, she denied having a romantic relationship with him and stated that they were just friends.
-11- could not address whether defendant initially had been forced to
participate. Her testimony confirmed only that Melendez-Rivas had
driven the van away, a point Melendez-Rivas admitted, but that
conflicted with Taishanet's testimony that Johal had driven the
getaway vehicle. She further testified that Edwin and Johal (and
not Melendez-Rivas) dragged Kelvin into the van, which was
consistent with Melendez-Rivas's testimony. She also said that
later that evening, she saw the defendant (rather than Edwin, as
Taishanet had testified) wearing Kelvin's "K" necklace, and that he
was standing with Edwin and Johal.
The prosecution's third eyewitness, Glenda, whose
credibility was under heavy attack at trial, testified she saw Edwin
point a gun at Kelvin to force him off the motorcycle and that Johal
and the defendant were there. She testified that she then ran
upstairs into her aunt's house. Her testimony did not address
whether defendant was participating voluntarily. She testified that
she then ran out onto the balcony and saw Edwin put Kelvin into the
van. She stated that Melendez-Rivas got into the front passenger
door of the van before it drove away. She did not see who drove the
van away. She testified that she later saw Edwin, but that she
could not identify who he was with.
Glenda admitted that she initially told the FBI agents
that she only saw Edwin and Johal on June 16, and that after being
shown a picture of Melendez-Rivas she told the agents that she had
-12- not seen him. Cross-examination further elicited that two FBI
agents had approached Glenda three months later and told her that
they believed that Melendez-Rivas was involved and that she had
committed a very serious crime by not giving them the information
they wanted. Only after that did she say that she had seen the
defendant on the evening of June 16.
The prosecution presented additional evidence in an
effort to refute Melendez-Rivas's defense theories in several ways.
It tried to establish that: (1) Melendez-Rivas was friends with
members of the group which had accosted Kelvin (thus making it
improbable that he was forced into participating); (2) Melendez-
Rivas had admitted this connection to FBI agents who investigated
the crime in the project; and (3) Melendez-Rivas had Kelvin's
distinctive jewelry, a Cuban-type chain with two panthers containing
a letter. Despite the difference between "A" and "K," the
prosecution's theory was that defendant's "A" necklace was the same
"K" necklace that originally belonged to Kelvin, and that defendant,
prior to Kelvin's murder, had worn a simpler gold chain. Melendez-
Rivas denied the first two and put on evidence (including from his
wife and two jewelers who claimed to have made the necklace) of his
prior ownership of the similar Cuban-type "A" chain.
During the defense case, Melendez-Rivas testified that
although he was driving the white van, he was coerced into becoming
involved in the altercation between Kelvin and Edwin, Johal, and
-13- Pupen. Defendant testified that he was driving from the project
basketball court when he stopped the van near where the others were
already confronting Kelvin on his motorcycle. Defendant stated that
at that time, he saw Taishanet, GinLin, and Glenda in the street.
At that point, defendant testified, Edwin and Johal had a gun on
Kelvin and they forced Kelvin into the rear of the van. Edwin then
went to the front passenger door and "told me to take off."
Melendez-Rivas said he obeyed because Edwin "had two weapons and I
understood that if I didn't take off, they were going to kill me."
He testified that Edwin and Johal let him out of the van once they
left the housing project with Kelvin, he walked to his mother's
house, which was also in the project, and Edwin and Johal drove the
van away with Kelvin still alive inside. Although Taishanet and
GinLin testified they saw defendant that evening in the project with
Edwin,5 defendant said he did not see Edwin and Johal until the next
day, when they came by to threaten defendant not to tell anything
to the police.
Melendez-Rivas further testified that he had no prior
record and he did not "hang with" the conspirators. He said that
although he knew Kelvin as an acquaintance from vocational school,
he had carried no grudge against Kelvin and had never been in a
5 GinLin testified to having seen Edwin, Johal, and defendant, while Taishanet testified she saw only Edwin and defendant. Glenda saw Edwin that evening, but she testified that she could not identify who was with Edwin.
-14- fight with him. He also stated that he was afraid to go to the
police because he was afraid of Edwin and Johal because they ran the
drug point at the Quintana project.
B. Questioning by the district court
The district court's questioning, challenged by the
defendant, occurred during the re-cross-examination of a defense
witness and police officer, Victor Rivera Martinez, who was
Melendez-Rivas's father-in-law.6 On re-direct, Rivera stated that
he was familiar with the neighborhood, that he knew of no close
relationship between Melendez-Rivas and Edwin and Johal, and that
this was despite the fact that Edwin and Johal were notorious
figures at the Quintana project.
Before beginning re-cross-examination, the prosecutor
requested a bench conference where she stated that, in order to
undermine the defense's lack of connection theory, she wanted to ask
Rivera about whether he knew that defendant had admitted to the FBI
that he was in the van with Edwin and Johal on the evening of June
16. This statement was the subject of a pending suppression
motion.7 The district court determined that it would not allow
6 When Rivera took the stand, the defendant had not yet testified. 7 The court completed the suppression hearing later in the trial, at defense counsel's request. The court determined that defendant's statements to the FBI during two separate interviews were voluntary admissions, that the statements to the FBI only confirmed what was already in the record, and that not only was the information admissible, "some of it [was] even exculpatory, up to
-15- questions directly about the statements to the FBI, but that the
prosecution could ask about rumors regarding connections between
Melendez-Rivas and the kidnappers on the evening of the kidnapping.
On re-cross-examination, the prosecution, trying to
undermine the defense's lack of connection theory, asked Rivera
about whether he had heard that the defendant, Edwin, and Johal had
taken Kelvin outside the project on the night of June 16. A bench
conference ensued over the questioning, the court directed the
prosecution to ask about rumors.
The prosecution then asked whether Rivera had heard
rumors as to what had happened to Kelvin on June 16. Rivera
answered "yes, that's right." The district court then asked "what
have you heard?" Rivera stated that he had heard a rumor "[t]hat
Mr. Cora, Edwin and Johal took [Kelvin] out [of] the housing
project." Defendant was not mentioned. The prosecution then asked
whether Rivera had heard that it was Melendez-Rivas who took Kelvin
out of the project. Rivera responded "Never" and proceeded to deny
hearing about any connection between the defendant and the men who
had kidnapped Kelvin.
At that point the district court intervened and asked
questions, apparently meant to refer back to the prosecution's
suggestion that defendant had earlier admitted his connection to
a certain point, in favor of [defendant]."
-16- other kidnappers to the FBI agents. The questioning went as
follows:
The Court: Did the FBI ever interview you about the facts of this case?
Rivera: They made a comment to me one time when they came by the front of my house.
The Court: And can I ask you what the comment was?
Rivera: They went to the house of a neighbor, and when I am coming to my house, one of the agents comes up to me and says to me that my son-in-law was involved in a series of felony crimes that could lead to the death penalty.
Defense Counsel: I have an objection at this time.
The Court: That is what they told you? That is what they told you?
Rivera: That is correct.
Defense Counsel: I have an objection and a motion.
The Court: You can make your motion. Please approach.
The Court: And, of course, you did not believe that?
Rivera: No, never in my life.
A bench conference ensued. The defense objected and immediately
moved for a mistrial on the grounds that "[Rivera] has now said that
the FBI told him that there were a series of felonies that could
lead to the death penalty. That has been introduced. There is
nothing to that." The court responded, "You heard what I said, 'and
-17- you did not believe that?' And he said, 'No.'" Defense counsel
responded, "But the FBI said it." The court then overruled defense
counsel's objection and denied his motion for a mistrial.8
The court also denied a subsequent written motion for
reconsideration of the defendant's motion for a mistrial, which
elaborated on defense counsel's objections to the testimony. In the
memorandum accompanying the motion, defense counsel made three
central arguments regarding the judge's interjection into the cross-
examination of Rivera. First, defense counsel argued that the
judge's question called for a hearsay answer and that the answer
elicited was hearsay. Second, defense counsel stated that the
departure from the district court's otherwise neutral conduct during
the trial posed particular risks:
The Court has more credibility than either party before a jury. The manner in which this was done would reasonably make it seem to a juror that the Court is imparting information to them that it wants them especially to have because of its importance.
Finally, defense counsel explained the prejudicial effect on
defendant's trial strategy: "A crucial element for the defense
. . . was to highlight the fact that the defendant had no prior
involvement with the criminal justice system, and was therefore an
8 Following the suppression hearing the next day on the admissibility of defendant's statements to the FBI, the prosecution recalled Rivera to ask only whether it would surprise him to learn that the defendant had admitted to the FBI that he was with Edwin and Johal in the van on the evening of June 16 and that defendant had "hung out" with them. Rivera said it would surprise him.
-18- unlikely person to have been chosen to engage in the conduct of
which he stands accused," and that as a result of the district
court's question, "the average juror will [receive] the impression
that the Court has doubts about a key element of the defense." In
what defense counsel described as "a close case on the evidence
[where] [t]here is no overwhelming proof of guilt," any such
influence by the district court must affect the jury's verdict.
In the same written motion, defense counsel requested, in
the alternative, a curative instruction as follows:
You are instructed that a judge may ask questions during a case. However, on occasion a judge may ask a question that is not proper and which you should not consider. This happened in this case. This Court asked a question of the witness, Police Officer Victor Rivera[,] which brought about an answer that is improper for you to consider. Therefore, you are instructed to strike from your minds the question asked by the Court and the response of the witness. It would be a violation of your oath as jurors to consider that question and the response to it.
The district court denied the motion altogether, including the
requested instruction.
C. The district court's denial of the motions for a mistrial and curative instruction
We consider the court's questions, the elicited answers,
the refusal to give any curative instructions, and what impact they
may have had.
-19- 1. Judge's power to question witnesses
The prosecution argues that the court did nothing more
than to exercise its power under Fed. R. Evid. 614(b) to interrogate
witnesses. It is well-established that judges are free to ask
questions to elicit facts to facilitate a "clear presentation of the
issues." United States v. Rosario-Peralta, 199 F.3d 552, 560 (1st
Cir. 1999). Nonetheless, the judge's right to ask questions should
be "exercised with care," Logue, 103 F.3d at 1045, particularly when
doing so may affect the rights of a criminal defendant. The need
for restraint is related to the need for a judge to "be balanced;
he cannot become an advocate or otherwise use his judicial powers
to advantage or disadvantage a party unfairly." Id.
There is particular concern when it is the judge's
questioning which brings in evidence which is both inadmissible and
prejudicial hearsay. 4 J.B. Weinstein & M.A. Berger, Weinstein's
Federal Evidence § 614.04[1][b], at 614-15 (J.M. McLaughlin ed., 2d
ed. 2006) ("There is . . . the danger that the judge may elicit from
the witness responses hurtful to the accused, and to which the jury
may assign peculiar weight because of their ostensible judicial
sponsorship."). Defendant argues that in a close case, the risk is
particularly acute: the judge's interjection suggested that the
court might have additional information about defendant's guilt, and
cast serious doubt on Melendez-Rivas's central defenses.
-20- The prosecution contends the court was only seeking
clarity to assist the jury.9 See Rodriguez v. Banco Cent. Corp.,
990 F.2d 7, 12 (1st Cir. 1993). Although the prosecution did not
create the problem, it is held accountable for it.
The mere crossing of the line by a diligent trial judge
will not itself lead to reversal. United States v. Paiva, 892 F.2d
148, 159 (1st Cir. 1989). In evaluating whether defendant has shown
sufficient prejudice, we consider all the factors in the case. If
this case were solely to rest on a claim that the court's
questioning evidenced partiality to the prosecution, we would deny
relief. Cf. Deary v. City of Gloucester, 9 F.3d 191, 194-95 (1st
Cir. 1993) (rejecting allegation that trial judge was so biased as
to deprive defendant of a fair trial). A different type of
prejudice is at issue here, as we explain below.
2. Introduction of inadmissible and prejudicial hearsay
We conclude that defendant was seriously prejudiced.
First, the question about what comments the FBI had made to the
witness called for inadmissible hearsay. The witness's answer was
not only inadmissible, but was very harmful to the defendant: the
FBI agent purportedly stated "that [Melendez-Rivas] was involved in
9 The problem is not one of the judge's questioning interfering with the jury's proper role. See United States v. Ofray-Campos, 534 F.3d 1, 18 (1st Cir. 2008). Nor is the problem really one of the judge becoming a witness. See Quercia v. United States, 289 U.S. 466, 470 (1933).
-21- a series of felony crimes that could lead to the death penalty."
The jury could easily have understood this to be a representation
that Melendez-Rivas was involved in other serious crimes, crimes so
serious as to raise the prospect of the death penalty. That was
simply untrue. Second, this certainly undercut the defendant's
testimony that he had no criminal record or charges against him and
did not associate with two notorious criminals in the project.
Further, the jurors could have perceived the question as
enhancing the prosecution's effort to impeach a defense witness.
See 4 Weinstein & Berger, supra, § 614.04[4][b], at 614-27
(suggesting that the trial court ought not conduct questioning that
resembles a cross-examination challenging the credibility of a
witness).
Over counsel's objection, the court did not strike the
answer and tell the jury to disregard it. Instead, the court asked
again whether that is what the FBI agents had told the witness. The
witness answered, "That is correct." This repetition, made within
earshot of the jurors, reinforced the prejudicial effect.
Counsel objected again. Before counsel could approach
the bench, the court, perhaps realizing the potential prejudice to
defendant, may have attempted to ameliorate the problem by asking
if the witness believed the FBI, and then repeated that the witness
disbelieved what the FBI agents had said. We cannot say with
confidence this ameliorated the harm. In addition, this then
-22- created an issue for the jury of whether the defendant's father-in-
law or the FBI was lying. There was never any curative instruction
given. The prejudice was not offset by the judge's preliminary
instructions at the start of trial. Those instructions were that
"nothing that I may say or nothing that I may do is intended to
indicate, nor should [it] be taken by you as indicating, what your
verdict should be," and that the jury "should never be influenced
by any ruling that I make or for the reasons behind the ruling."
These instructions are mismatches to the problem at
hand.10 Nor were instructions given which were closer to a match.
The totality of the record shows that the judge's
questions elicited inadmissible, prejudicial testimony. The
testimony was not stricken, nor was a curative instruction given.
The inadmissible evidence contradicted one of defendant's central
10 There was, for example, no instruction that the jury should not assume the court had any view on the subject of the court's questions and that the jury could disregard all the court's questions. 4 Weinstein & Berger, supra, § 614.04[4][c], at 614- 28.1 to -28.2 ("The risk that a judge's questioning conveys a message regarding a defendant's guilt may be reduced by instructing the jurors that they should not assume that the judge holds any opinion on the subject of the court's questions and that the jury may disregard all the court's comments in arriving at its findings of fact."); see also Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 100 (1st Cir. 2003) ("[A]ny possible risk of prejudice to [defendant] as a result of the judge's questions was abated by the clear instruction to the jury that it should ignore any impression that his questions might have had on them." (alterations in original) (quoting United States v. Henry, 136 F.3d 12, 19 (1st Cir. 1998))); United States v. Candelaria-Silva, 166 F.3d 19, 36 (1st Cir. 1999) (strong jury instructions sufficient to eliminate any potential prejudice stemming from judge's "facial expressions" or other signs of frustration exhibited in contentious trial).
-23- defenses and cast doubt on the credibility of his coercion defense.
We cannot say this error was harmless.
III.
We vacate and remand to the district court for a new
trial.
-24-