United States v. Eustorgio Pena-Garcia
Opinion
OPINION
Having been convicted on four counts of transporting illegally admitted aliens [8 U.S.C. § 1324(a)], defendant on this appeal argues two points: (a) the trial court erred in failing to suppress evidence taken in a roving checkpoint search 55 to 60 miles north of the Mexican border, and (b) the defendant was denied a fair trial and the effective assistance of counsel because of conduct of the trial judge. While we conclude that we must reverse and direct a new trial on appellant’s second point, we direct that the mandate be stayed pending decision by the Supreme Court in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974) (en banc), cert. granted, - U.S. -, 95 S.Ct. 40, 42 L.Ed.2d 48, Oct. 15, 1974, or United States v. Guana-Sanchez, 484 F.2d 590 (7th Cir. 1973), cert. granted, 417 U.S. 967, 94 S.Ct. 3169, 41 L.Ed.2d 1138, June 17, 1974.
Two border patrol agents operated a roving checkpoint in July 1973 well north of the international border with Mexico on California highway S22. Pursuant to their practice of stopping every northbound vehicle, they followed and stopped an automobile driven by defendant. One passenger in the front seat and three others lying down in the rear were found to be Mexican citizens who were illegally within the country. Upon being arrested, the defendant indicated that he had picked up the passengers as hitchhikers. At trial he reiterated this explanation and denied having learned at the time that they were illegally admitted aliens or having agreed to accept payment in return for the ride.
The aliens supported the hitchhiker theory at trial, testifying that they had climbed a fence at the border, walked some distance, hailed a passing car, begged for a ride and promised to pay money to defendant after obtaining work. One alien witness was cross-examined about a statement given to the arresting agents, and indicated that he had not first been warned of his rights. The trial judge interrupted and continued to interrogate, cross-examine, threaten and intimidate the witness and to threaten defense counsel with contempt. 1
*966 The trial judge persisted. The witness corroborated his written statement except the portion which stated that he had made prior arrangements with the defendant in Mexico to pay $200 for transportation. Again, the judge interrupted cross-examination by the defense counsel. 2 He continued to cross-examine and threaten. 3 Finally, having intimidated the witness and defense counsel, the court concluded:
THE COURT: We will leave it to the jury. I have never seen such — I want to keep under control but it urks *967 (sic) me when there is any attempted perjury. Do you hear me — and perjury is telling the untruth under oath.
We conclude that the trial judge went too far. A federal judge has the right and duty to facilitate the orderly progress of a trial by direct participation. Questions which aid in clarifying testimony of a witness, expedite examination or confine it to relevant matters are proper if made in a nonprejudicial manner. 4 However, the judge cannot conduct his questioning in such manner as to convey to the jury the impression that he has formed an opinion as to the truth of the witness’ statement or the verdict that should be returned. 5 Where the parties are represented by competent counsel, the judge cannot usurp their role. And most certainly he cannot take on the task of the prosecution. 6 This happened here. Without detailing all of the instances of undue interruption, we conclude that the cumulative effect was so pervasive and prejudicial as to require a new trial. 7
We held in United States v. Brignoni-Ponee, supra,, that a stop and interrogation by a roving patrol without “founded suspicion” were illegal and the fruits thereof were inadmissible. The opinion referred to United States v. Guana-San- *968 chez, supra. We are now informed cer-tiorari has been granted by the Supreme Court in each of these cases.
Reversed and remanded, but the mandate herein will not be issued until the Supreme Court has acted.
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