# U nit edStates C ou rt o f App eal s For t h e Firs t C ircu it

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, 2009-2- 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 a n d 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 p r i o r c r i minal record, was s e n t enced 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-3-

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 argu m e n t 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 pro h i b i t s reexamination of an acqui t t a l 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 Q u i ntana Housing Project, where his girlfriend Taishanet Falu lived. He wore a red shirt, short, black pants, and jewelry, including a bracelet watc h a nd distinctive gold chain. The chain was a thick "Cuban-type" chain with two panthers and the let t e r " K " on it. While visiting Taishanet, Kelvin received a phone call and wen t t o leave. Taishanet also left her home and went over to visit h e r sisterThe government's theory of the events of June 16 differs 1 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- 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 identif i e d them as Edwin, Taishanet's estranged husband and the father of her children, Johal, a known associate of Edwin, a n d M e l e n dez-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 t o harm Kelvin, at which point Edwin said to her: "Don't you get up close here, because I wil l h i t y o u with the gun, you little bitch." Johal grabbed Taishanet while Edwin confronted Kelvin and told him to pull up his shirt. K e l vin 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. Bondy got out of t h e v a n as 1 Edwin and Melendez-Rivas struggled with Kelvin to get him off the-5-

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,

a r r i v ed with "Pupen," co-defendant José Luis Cora-Meléndez. They tried to start the m otorcycle 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 happe n e d t o Kelvin and that she thought he had been killed. Taishanet tried to call Kelvin's c e l l p h one several times; once, Ed w i n p i c k e d u p , a n d w h e n T a i s h a n e t t o l d h i m n o t t o h a rm Kelvin, Edwin started laughing.

Taishanet testi f i e dthat later that evening, she saw Edwi n a n d M e l e n d e z - R i v a s i n t h e p r o j e c t . S h e s a w t h a t E dwin was wearing Kelvin's jewelry. Edwin said to her, "I gave him 30 because he is a pig."

Kelvin's body was found t w o days later with thirty-two gunshot wounds. There was no physical eviden c e o t h e r than the jewelry linking the death to the d e f e n d ant. The government's argume n t a t t r i a l w a s t h a t t h e d e f e n d a n t ' s p r e s e n c e a t t h e s cene where Kelvin was forced off his motorcycle and the fact that Edwin handed Melendez-Rivas Kelvin's gun proved intent to aid and abet.-6-

B. Sufficiency challenge

Defendant's argument that the district court erred in denying his motion for acquittal is based on a m i s a p p rehension of the e l e m e n t s o f t h e s t a t u t o r y o f f e n s e ; i t i s a l s o f o r e c l o sed by circuit precedent. Our r e v iew is de novo both because we are reviewing evidentiary sufficiency and b e cause 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 g u i l t y v erdict, we assess whethe r a r e a s o n a b l e f a c t f i n d e r c o u l dh a v e c o n c l u d e dt h a t t he 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), a n ds i n c e t h e m o t i v e f o r t h e k i l l i n g f o u n db yt h e j u ry here was jealousy, no federal crime was committed.-7- He is wrong. Not only does the specific language of the statute say otherwise but our case law has alread y r e j e c ted this argument. The statute reads:

Whoev e r , w i t h t h e i n t e n t t o c a u s e d e a t h or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or p r e s e n c e o f a n o t h e r b yf o r c e a n dv i o l ence or by intimidation, or attempt to do so, shall . . . (3) if death results, be fined under t h i s title or imprisoned for any number of years up to life, or bo t h , or sentenced to death. 18 U.S.C § 2119(3) (emphasis added).

The requisite intent was that firs t f o u nd by the jury: that at the time the victim's motorcycle was taken, it was done with the intent to caus e d e ath or serious bodily injury. The relevant intent may be conditional -- that is, t h e i n tent 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
. H o l l o w a yv . U n i t e dS t a t e s , 5 2 6 U . S . 1 , 1 2 ( 1 9 9 9 ) ("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 dri v e r i f n e cessary to steal the [vehicle] (or, alternatively, if unnecessary to steal the [ v ehicle])."). The statute does not require that the taking of the motor vehicle be "an-8-

ultimate motive for the crime." United States v. Rivera-Figueroa, 149 F.3d 1, 4 (1st Cir. 1998). Rather, "[i]t is e n o u g h 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-Álv a r e z, 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 crim e . G a r cía-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 ev i d e nce here, Melendez-Rivas had to be aware that he was involved in the taking of a motor vehic l e, and that Ramos had a l r e ady 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 vict i m, showing an intent to cause death or serious injury, an intent reinforced by what happened next. The evidence, viewed i n t h e light most favorable to the government, was sufficient.We affirm the denial of his motion fo r judgment of acquittal.Indeed, at closing argument, the prosecution emphasized 2 the inconsistencies and credibility contests in t h e case, characteri z i n g the defendant's account as too "convenient" to be believed, and i n sisting that Taishanet could not have simply "ma[d]e . . . up" her account.

-9- II. Questioning by the District Court and Answers Elicited
Tw o s e p a r a t e s t r a n d s o f l e g a l d o c t r i n e a r e c o mb i n e d in defe n d a n t ' s s e c o n dc h a l l e n g e . H e f i r s t a r g u e s t h a t c e r tain questions, which were asked by the trial judge, eli c i t e da nswers that were inadmissible and prejud i cial 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 turn s o n 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 s e t 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 d riving the van home,Defendant also argues that the prosecuti on engaged in 3 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- when he arrived at a spot in the street where he was blocked by the kidnappers who were confronting Kelvin. He further testified that h e o n l y b e c a m e i n v o l v e d i n d r i v i n g t h e g e t a w a y v a n b e c a u s e he had been threatened by Edwin and Johal, who car r i e d l o aded guns when they demanded he become involved a nd 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 crim i n a l r e cord and was not friendly with the other men accused of kidnapping Kelvin. The crime was m o t i v a ted by Edwin's j e a l o u s y , t h e d e f e n d a n t c l a i m e d , a n dh e c a r r i e dn o g r u d g e a g a i nst 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 t e s t imony, which was the primary evidence presented against the defendant at trial. T a i shanet's testimony 3 painted a picture of voluntary participation by the defendant. Taishanet place dthe defendant as already at the basketball court with Edwin and Johal: she testified t h a t t h e three of themAlthough witnesses and the government described Kelvin as 4 Taishanet's boyfriend, she denied havin g a romantic relationship with him and stated that they were just friends. -11- confronted Kelvin and forced him off his motorcycle. Indeed, the 4 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 i t 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 J ohal (not defendant) then got into the van and drove it away. Further, she testified that later that

ev e n i n g , s h e s a w E d w i n , a c c o mp a n i e d b y M e l e n d e z - R i v a s , a n d that Edwin (and not Melendez-Rivas) was weari n g 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 k i dnapping to the police, that she had received $2600 for her testimony, and that she associate dw i t h several notorious local criminals and had never reported t h e i r criminal activities. One of the prosecution's two other eyewitnesses, GinLin, arrived on the scene after the altercation had already begun and so-12-

could not address whether d e f e n d a n t initially had been forced to participate. Her testimony confirmed only that Melendez-Rivas had driven the v an away, a point Melendez-Rivas admitted, but that conflicte d w i t h Taishanet's testimony that Johal had driven the getaway vehicle. She further testifi e d t h a t Edwin and Johal (and not Melendez-Rivas) d r agged Kelvin into the van, which was consistent with Melendez-Rivas's te s t i m o ny. She also said that later that evenin g , s h e 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

a n dt h e d e f e n d a n t w e r e t h e re. S h e testified that she then ran upstair s i n t o 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. S h e 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 tha t she later saw Edwin, but that she could not identify who he was with.

Glenda admitted that she initially told the F B I 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-13-

not seen him. Cross-examination further elicited that two FBI agents had approached Glend a t h r e e months later and told her that they believed that Melendez-Rivas w a s involved and that she had

c o mm i t t ed a very serious crime by not giving them the information they wanted. Only a f ter 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 friend s w i th members o f t h e group which had accosted Kelvin (thus making it improbable that he was forced into participating); (2) M elendezRivas had admitted thi s connection to FBI agents who investigated the crime in the project; and ( 3 ) M e lendez-Rivas had Kelvin's distinctive jewelry, a Cuban-type chain with two panthers containing a let t e r . D espite 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. MelendezRivas 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 alter c a t i o n between Kelvin and Edwin, Johal, andGinLin t estified to having seen Edwin, Johal, and 5 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- Pupen. Defendant testified t h a t h e 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

a t t hat time, he saw Taishanet, GinLin, and Glenda in the street. At that point, defendant testified, Edwin and Johal h a d a g u n on Kelvin and they forced Kelvin into the rear of the van. Edwin then went to the front passenger door and "told me to t ake 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 wal k e d t o his mother's house, which was also in the project, and Edwin and Johal drove the

v a n a w a yw i t h K e l v i n s t i l l a l i v e i n s i d e. A l t h ough Taishanet and GinLin testified they saw defendant that evening in the project with Edwin, defendant said he did not see Edwin and Johal until the next

5 day, when they came by to threaten defendant no t t o tell anything to the police.

Melendez-Rivas furt her testified that he had no prior record and he did not "hang with" the c o nspirators. He said that although he knew Kelvin as an acquaintance from vocational school, he had carried no grudge against Kelvin and had never be e n in aWhen Rivera took the stand, the defendant had n o t yet 6 testified. The court completed the suppression hearing later in the

7 tria l , at defense counsel's request. The court determined that defendant's state m e n ts 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- fight with him. He also stated that he was af r a i d 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 Martine z , w h o was Melendez-Rivas's father-in-law. On re-direct, Rivera stated that 6 he was familiar with the neighborhood, that he knew of no c l ose relationship between Melendez-Rivas and Edwin and J o h a l, and that this was despite the fact th a t E d w i n and Johal were notorious figures at the Quintana project.

Before beginning re-cross-examination, the prosecutor

re q u e s t e d a b e n c h c o n f e r e n c e w h e r e s h e s t a t e d t h a t , i n 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 w a s t h e subject of a pending suppression motion. The district court determined that it would n o t allow

7a certain point, in favor of [defendant]." -16- questions directly about th e s t a t e ments 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 defens e ' s l ack 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 en s ued over the questioning, the court directed the prosecution to ask about rumors.

The pro s ecution then asked whether Rivera had heard rumors as to what had h a ppened 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 h e ard a rumor "[t]hat Mr. Cora, Edwin and J o h a l 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 th e prosecution's suggestion that def e ndant had earlier admitted his connection to-17-

other kidnappers to the FBI agents. The qu e s t i o n i ng went as follows: The Court: Did the FBI ever inte r v i e wyou

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, o n e of the agents com e s 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 objectio n a t this time. The C o u r t : T h a t i s w h a t t h e yt o l dy o u ? That is what they told you? Rivera: That is correct. Defe n s e 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 benc h c o n f e r e n c e e n s u e d . T h e d e f e n s e o b j e c t e da n di mm e d i a tely 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. T h at has been introduced. There is nothing to that." The court responded, "You heard what I said, 'andFollowing the suppression hearing the next day on the 8 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- you did not believe that?' And he said, 'No.'" D efense 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 m o t i on for a mistrial, which elaborated on defense counsel's objections to the testimony. In the

m e m o r a n d u ma c c o mp a n y i n gt h e m o t i o n , d e f e n s e c o u n s e l m a d e t h r ee central arguments regarding the judge's interjection into the crossexamination of Rivera. First, defense counsel argued t h at the judge's question called for a hearsay answer an d t h a t the answer elicited was hearsay. Second, defense counsel st a ted 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 prejudici a l effect on defendant's trial strateg y : "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-19-

unlikely person to have been chosen to engage i n the conduct of which he stands accused," and t h a t a s 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 c l o s e case on the evidence [where] [t]here is no overwhelming proof of gui l t , " 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 a r e i n s t r u c t e dt h a t a j u d g e m a ya sk questions during a case. However, on occasion a judge may ask a question that is not proper and which you should n o t c o nsider. This happened in this case. Thi s Court asked a question of the witness, Police Officer Victor Rivera[,] which brought about an answer that is improper for you to consider. Ther e f o re, you are instr u c t ed to strike from your minds the question asked by the C o urt and the response of the witness. It would be a violation of your oath as j u r ors to consider that question and the response to it. The district court denied the m o tion altogether, including the requested instruction. C. The district court's d e n ial 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.-20- 1. Judge's power to question witnesses The p r o s e c u t i o n a r g u e s t h a t t h e c o u r t d i dn o t h i n g m o re than to exercise its power under Fed. R. Evid. 614(b) to interrogate witnesses. It is well-es t a b l i s h ed 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 t o "be balanced; he c a n n o t become an advocate or otherwise use his judicial powers to advantage or disadvantage a party unfairly." Id.

There is pa r t i cular concern when it is the judge's questioning which brings in evidence which is both inadmissible and prejudicial he a rsay. 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 j u d i c ial sponsorship."). Defendant argues that in a close case, the risk is particularly acute: the judge's interjecti o n suggested that the court might have additional information about defendant's guilt, and cast serious doubt on Melendez-Rivas's central defenses.The problem is not one of the judge's questioning 9 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- The prosecution con t ends the court was only seeking clarity to assist the jury. S e e Rodriguez v. Banco Cent. Corp., 9 990 F.2d 7, 12 (1st Cir. 1993). Although the p rosecution 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 th e court's questioning evidenced partiality to the prosecution, we would deny rel i ef. 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 tria l ). 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 h a d made to the witness called for inadmissible hearsay. The witness's answer was

no t o n l y inadmissible, but was very harmful to the defendant: the FBI agent purportedly stated "that [Melendez-Rivas] was involved in-22-

a series of felony crimes t h a t c o u l dlead to the death penalty." The jury could easily have u n d e r s t ood this to be a representation that Melendez-Rivas was involved in other serious crimes, crimes so serious as to raise the prosp e ct of the death penalty. That was simply untrue. Seco n d , t his 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 t h e prosecution's effort to impeach a defense witness. See 4 Weinstein & Berger, supra, § 61 4 . 0 4 [ 4 ] [b], at 614-27 (suggesting that the trial court ought not conduct questioning that

r esembles a cross-examination challenging the credibility of a witness). Over counsel's objection, the c o urt 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 ag a i n . Before counsel could approach the bench, the court, perhaps realizing the potential prejudice to d e f e n d a n t , m a yh a v e a t t e mp t e dt o a m e l i o r a t e t h e p r o b l e mb ya s k ing if the witness believed the FBI, and then repeated that the witness disbelieved what the FBI agents ha d said. We cannot say with conf i d e n c e this ameliorated the harm. In addition, this thenThere wa s , for example, no instruction that the jury 10 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 no t a s s u m e 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 suf ficient to eliminate any potential prejudice stemming from judge's "facial expressions" or other signs of frustration exhibited in contentious trial). -23- created an issue for the jury of whether the defendant's father-inlaw or the FBI was lying. There was never any curative instruction given. The prejudice was not off s e t b y the judge's preliminary i n s t r u c tions at the start of trial. Those instructions were that "nothing that I may s ay or nothing that I may do is intended to indicate, nor should [it] be taken by you as indicating, what your

v e r d ict should be," a n dt h a t t h e j u r y" s h o u l dn e v e r b e i n f l u enced by any ruling that I make or for the reasons behind the ruling."

These instr u ctions are mismatches to the problem at hand. Nor were instructions given which were closer to a match.

10 The totality of the record shows that the judge's questions e l icited inadmissible, prejudicial testimony. The testimony was not stricken, nor was a curative instruct i on given. The inadm i s sible evidence contradicted one of defendant's central-24-

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.