the the main issue here assuming that the judge here asked questions that cross the line and that the judge became in effect you know more of an advocate than one merely trying to aid the process isn't that none the less even with that assumption harmless error in light of all of the evidence of guilt know and i could run through a host of things that it appears that there is no way that i can see that he question the veracity the truth telling ability of mr tabio and juries give a lot of credence to things that judges say let's say that was a bad thing but there is that so take the trial that these other items of evidence should be disregarded so the answer is yes that and here's why  defense all the rest of it sensually on his own credibility obviously had a constitutional right to remain silent and he opted to give up that right to sit in front of the jury to look them in the eye and explain to them but let's just take it one by one let's go with the shore trust organizations government to do some actual binder that was given to customers and it contained a quote secret section for getting what the judge did here i mean the judge got upset with you know many may have asked a few questions too many but just on the p t o s when we get to the the the the b i c's in a minute oh you're like the rest of us but the fact is that the right to present a defense means something and the defense in this case was mr tabi and of sitting in front the jury and saying listen i get that there that the government's presented evidence but i'm telling you that i did that to break the law that i honestly believe that what i was doing was both lawful and effective and notwithstanding that evidence you should believe me that i'm much on the truth teller that it isn't your point essentially that mr tabi on his own testimony is so basic and fundamental  that the harassment from the questioning struck at the heart of your defense it's the most it's the most basic fundamental it's a criminal defendant taking his own life in his hands essentially and trying to persuade his fellow mean the fact that he had a he was trying to get into law school roger that he had represented that he had they had law credentials and he didn't i know that they were admitted by by the prosecutor you the prosecutor who it seems would have asked questions along those lines well except that just more of his cross examination of atomic top ya know began under direct examination continued after the government had finished its cross examination and then resumed on redirect examination so when when the when the court asked whether the governor would have asked the questions one could read the transcript and see the questions that the government asked and then the judge mark he came him again and hammered him on other areas that the government perhaps it approached a different way and that's simply not the role of a trial judge to become a second prosecutor big that's the language in this court's cases over and over again the judge cannot be second prosecutor the judge and more significantly as a as an institutional matter structural matter he had a constitutional right to present that defense you should believe me defense without having to prosecutors impeaching his his doesn't say in so many words but the question becomes the one that the government itself asked in united states versus kennedy which involved judge markey just a year ago where the government asked this court to reassign judge judge marty because he had asked questions that the government felt suggested an appearance of partiality and that standard is could a reasonable observer detect distrust and disfavor of defendant the t the standard that the government asked for in this court applied in kennedy and if it's good enough for the government then it's good enough for the defendants look at mr tabio know properly preserved his complaint so that it takes it out of the plane air review and the answer the answer is yes first of all he raised the issue by moving for a mistrial outside the presence of the jury which was an appropriate way to resolve the issue and when did he do it he did it then  first available opportunity which would have been at the conclusion that they said we would need to give him which he might be entitled to a grossly litigant a little bit of latitude we would not give a council the you agree with that well i'm not one hundred percent sure that a tourney would have been too not during the direct examination and by all accounts was in effect i think if he actually was the attorney and in fact all of the attorneys stood mute i mean that the judge or judge martinez cross examining cross examination of this witness but this is it this is you get back to judge embryo's initial question of harmless error or are you arguing that this case is not susceptible to harmless error analysis because what happened here is structural i think i'd like be able to set up but i think the case law factors the court has considered certain factors become clearer so for example the court has considered whether the trial court's involvement was just isolated comments or whether his and his involvement persuasive whether his his questioning was to clarify an ambiguity or whether it was to emphasize the government's proof or to a peach to defend its credibility well but those are questions about whether what he did was wrong right we're suing what he did was wrong right but i don't then where in the in the difficult speculative land just as you candidly acknowledged wisely and professionally i don't know what would happen but harmless error analysis always requires this court to go through that looking las week and try to determine whether it would make a difference right and what i'm saying is that those factors are also relevant to consideration as to whether the error was harmless and i'll just go through them and also explain why the court cases i've also looked to whether the comments were directed at an attorney or whether the question was directed at the planet itself whether the comments were made outside the presence of the jury or in front of a jury whether the court's question was even handed that he did the same thing for the governor's witnesses or whether was one sided partisan if you consider those factors which i gathered from the case law in each one judge martini's involvement in this case else his questioning was extensive and pervasive it emphasized the government's proof and impeach the defense credibility was directed at the himself it took place in from the jury and it was one sided and partisan and when all of those factors coalesced together i think it becomes much harder for the court to say that the error that the error was harmless and in fact if one looks at the cases actually that's a very good place for us to turn the ask mr quinn to respond to what you just said thank your honor thank you the overwhelming evidence of guilt and i think i don't disagree with the factors that would with the relevance of factors that might very capable colleague has articulated for the court but there are additional factors as well which include the length of the trial in this case three and a half weeks the amount of evidence against the defendant in which as this your honor has already indicated overwhelming evidence of guilt concerning this defendant including coming from his very own mouth even before he takes the stand even before he's making an opening statement in front of so right after he's making his opening statement and from the jury well before he takes the stand the government has already introduced evidence of this defendant on a tape recorded call among other things saying with respect to being a look post is delaware a beach house as security to get out of to get out on bail we have his stamp are you can stamp it and i'll swear on a stack of bibles that this profanity signed that's coming from the defendant's own mouth played in front of a jury and so his credibility as a man your honor was shot long before you ever took the stand you have that so overwhelming evidence of guilt together with a very long trial you also have from our know i think in early october of two thousand and twelve and i've had a long time to think about what i would have done could have done had i been in the shoes of my colleagues at trial i'd like to think although i can't say with absolute certainty that at that moment i would have been able to articulate the objection or at least to stand up and try to put a brake on things and i would be wary of imposing upon prosecutors an absolute duty to do that i think we always all prosecutors including this trial team are cognizant that their first and foremost duties to see that justice is done irrespective of what happens at a trial it's not the verdict that matters what matters is that justice is done but i don't honestly believe that these prosecutors should shirk that duty here i mean i think the problem we're dealing with is we have a pro is the right to is the is the right the core right is to control the presentation of your case in front of the jury and so i think any counsel when a pro se is involved in court in front of the jurors jury has to be very careful about doing certainly wish that the judge had not asked questions after my colleague concluded his cross examination of the judge didn't ask further questions after we direct but i think when you view those questions in their totality i think it all told those questions of these the portions that are quoted by my colleague in his opening brief and sort of related question that's about twenty pages of trial transcript and i think this way pages are too much of just in my view the questioning should have been far less than that i think all of us can agree on that but when you when you compare you let's just excise all of those questions out of it and you're left with a quasi examination by a prosecutor that was like shooting fish in a barrel absolutely like shooting fish in a barrel this was sort of easy target after easy target after easy target and then on top of the cross examination by the prosecutor you have a copy in only of hobby and his own words that are damning that are introduced against in the trial during the prosecution's case in chief you have a tabio on those statements during the course of the trial for example in cross examining ms mcdermott the employee who became sort of very important government with this explain what was going on in this in this workshop of fraud he tried to contradict happens you wouldn't be here if this if this were shooting fish in a barrel and we didn't have things like the questioning that took place here we would be here today absolutely your honor what will be what do you do the next time i know i think with the benefit of having a credit and and i don't want to go to such truck on that but i guess the judge got him back in and then it's clear that at the end of the day mr tabio prevail on what he wants the extent and so i can't think anybody could say that this is really an infringement a fundamental you certainly could have said after you stepped down and said i'm done with the witness and judge has additional questions you certainly could have said that and i think again with the benefit of hindsight and i want to i must confess i've only tried a couple of criminal cases in principle in appellate lawyer but i do have the benefit of looking at an awful lot of transcripts and acknowledging that this is at least in my experience this is this level judicial question is not something that i've often confronted and so yes a prosecutor could have said that simply i'll get to that or if if you may your honor like to continue on that or at some point i would like to think and certainly armed with what we saw here that i and my colleagues would find a way to just simply ask for a short recess and i think what i probably would have said had there been a short recess is your honor we recognize that you have the absolute right to ask questions and to oversee a police search for truth we recognize that we're not disputing that we would just ask that you review the baby and once the decisions because i think those decisions made pretty clear that the kinds of question that was going on here were they were improper and when i say what's that i think then i would have handed the decisions are and i would have had them with me and everyone in my office is far more sensitive to that and we always were sense of those decisions but i think you know how it's easy for poll workers around a lot president not necessarily all criminal criminal practitioners are as versed in the president as we are and that's why we have a poet lawyers at least in my office but so i think this is absolutely regrettable and i do wish fervently wish that we have the wherewithal the time to try to do more to stop it but all that being sad you have to view this and this goes back to the judge members first question which is assess the factors that your colleagues pointed out those are some of the factors but there rule of evidence six fourteen b wasn't that timely enough i respectfully i don't think it was and i i will i will point in a related context two hundred  and the of this court's opinion read the roses offer reason why he did not raise the issues before his suppression hearing he has offered no explanation other than that he was proceeding pro se why he did not raise the issues after the hearing  prior to this if you will in this context we conclude that rose has not shown good cause force failure to raise the suppression issues to the district court that's us euros five three eight one seventy five one hundred five i believe in one eighty six and that's in a context suppression where there's an absolute would say would be pretty close to rule six fourteen b even if it was counsel would six fourteen be those as is the next available opportunity and there were intervening recess if there was even an intervening recess during the middle of cross examination issue was sufficiently preserved whether he was per se or whether it be sufficiently preserve even if it was counsel that i respectfully i think more needs to be done in part because the reason for that the prompt objection requirement yes you don't have to raise it in front of the jury because of the time and already gone all the choice at that point with mistrial i think the purpose of all six fourteen is to put litigants on notice that they have reservations issues with the nature of the questions that a judge just posed in that they've got to raise them sufficiently timely so the judge can do something about it before damage or more damage is done but even assuming that this is a preserved claim of error and even assuming it's not just simply the ordinary students substantially contribute to the verdict but rather even the most stringent form of harmless review which is almost beyond reasonable doubt our position is the errors here the abuse of discretion or the last of judgment imposing these questions was still harmless beyond reasonable doubt in light of the absolutely utterly overwhelming guilt there's not a doubt in my mind as you said if this case were to try ten times the outcome would be the same every single time i also think in judging whether this rose a level depriving him of your soon there are no tax protestors and you're assuming they're no tax protesters but i think rw do our best to try to weed them out as it was one beer actually designed to do that but putting that aside i think in judging whether that was if you process violation you have to look at why would implore the court to look at the entirety of the judge's management of its trial in the words of beatty were aspects of the judge just wrong management regrettable yes but when you compare what this judge did against say with the judge did in beatty where in beatty from beginning to end it comes across at least from reading that opinion to judge in gauge an unrelenting evidence if anything but nonetheless the judge did that the judge also not only cut short one trial date but then the next friday before the defense case begins based counsel's court that day is mr todd you know that day off so we can better prepare for the presentation of this case and also to ensure that he would comply with the discovery ward of the judge issued prior trial requiring setting a timetable for disclosure defense exhibits and even when mr coffey on the flouted that and then produces on the stand the following wednesday a letter he clearly a copy of a letter he claims you've sent to the secretary of the treasury the judge ultimately lets that evidence in rather than keep it out which the judge could have because of the violation of the discovery order and so i think you have to judge what the judged you have to judge w i was just just three very quick points mr coyne stated his comment that what matters is that justice is done actually is more than that the supreme court's made clear that justice must at all must also satisfy the appearance of justice and if and appearances matter i do try criminal cases and particularly to juries appearances matter yuri's know that defense counsel the hired gun they know that government counsel is a hired gun the district court judge above it all almost as a god to jurors so when you have a case like this one where the judge repeatedly excessively pervasively in a partisan factual in a three week trial i mean the this particular area it was a fairly lengthy questioning but in the course of a three week trial what portion of the time was actually spent on this objectionable question in the most critical part of the trial the trial where the defendant got to speak to himself directly to the jury and explained this is why i'm not going well but the issue was primarily relating to his attempts to get into law school and passing himself off as having a legal background is that right which went directly to the defendant's credibility and whether the jury sh believe that i do i'm in if this case involves credibility vattel in such a way that the question for the jury to decide was did a t v at all commit the crime or did somebody case is going back for a new trial if we don't we don't know we cannot in that case say it's harmless or how do you get around the fact here that the credibility isn't a tab you know saying i didn't do it as i read the record tell me if i'm misinterpreting the record as i see the record of tevye innocent oh i i didn't intend to violate any laws and that is countermanded with a tevye hanno on a tape talking about violating the law and copious amounts of documentary evidence and other witness testimony pocking about exactly how he violated the law so i'm not sure you have that sort of conflict like because in white collar cases it comes down to intent and the defendant by taking the stand put that issue squarely in the dirt the jury's lap to say you should believe me and that's why this records cross examination on the issue of credibility through direct examination and where although he was cross examined repeatedly by the district court and i know several of your honor's have not for public publication opinions on this issue and if you look at those you those are cases involving you know there were a handful of questions that were br comments that's not this case and where the district court judges excessive involvement in questioning the jury question was there a cases where we said the district judge erd or those cases where we said the district judge is limited question it was not a violation it's it's even those those are cases where the where the court held that that limited go look at that cases this is a different case i would agree this is a different case if the defendant does not testify and judge martini's examination of the was limited to the defense witnesses which is something we haven't even really discussed at issue then that wasn't district court judges own skepticism was was communicated to the jury that at least in this case to support as the supreme court says that justice has to satisfy an appearance of justice that this court cannot let that conviction stand whether takes another three weeks to try this defendant or