US v. Hemza Lefsih
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:16-cr-00004-BO-1. . [16-4345]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
HEMZA MENADE LEFSIH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:16-cr-00004-BO-1)
Argued: May 10, 2017
Decided: August 14, 2017
Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge Harris wrote the opinion, in which
Judge Traxler and Judge Floyd joined.
ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for
Appellant. Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, First Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
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PAMELA HARRIS, Circuit Judge:
A jury convicted Hemza Menade Lefsih, an Algerian native who entered the
United States through the Diversity Immigrant Visa Program, of immigration fraud.
During Lefsih’s trial, the district court interjected numerous times, expressing skepticism
of the Diversity Immigrant Visa Program and a negative impression of individuals who
participate in the program. We find that this judicial intervention was improper and
denied Lefsih the opportunity for a fair and impartial trial, and therefore vacate the
judgment of conviction.
Hemza Menade Lefsih immigrated to the United States through the Diversity
Immigrant Visa Program (“Diversity Program”).
The Diversity Program awards
permanent residence immigration visas – “diversity visas” – to individuals from countries
with historically low immigration numbers, on the basis of a random lottery system.
Lefsih, from Algeria, won a Diversity Program lottery and received a diversity visa. As
allowed under the Diversity Program, he then sought United States citizenship,
submitting an N-400 form – the application form for naturalization – five years after
entering the country.
Questions 22 through 28 of the N-400 relate to an applicant’s criminal history.
Specifically, Question 22 inquires whether an applicant has “ever committed . . . a crime
or offense for which [he or she was] not arrested”; Question 24, whether an applicant has
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“ever been charged with committing . . . a crime or offense”; and Question 25, whether
an applicant has “ever been convicted of a crime or offense[.]” S.A. 375 (emphases in
original). 1 And between those questions is Question 23 – the question at issue here –
asking whether an applicant has “ever been arrested, cited, or detained by any law
enforcement officer . . . for any reason.” Id. (emphasis in original).
Lefsih answered “no” to Question 23. Id. In fact, however, Lefsih had been
“cited” by several law enforcement officers, receiving a total of 11 traffic citations while
working as a cab driver in North Carolina. Lefsih later would testify that he understood
Question 23 as referring only to serious criminal offenses that resulted in arrests or
detentions, and not to traffic tickets, and so believed that he was answering the question
truthfully. But Lefsih concedes that in actuality, his assertion that he never had been
“cited” was false.
Because Lefsih failed to acknowledge his traffic tickets in answer to Question 23,
the government charged Lefsih with two counts of making a false statement on a
naturalization form, see 18 U.S.C. § 1015(a), and two counts of immigration fraud, see 18
U.S.C. § 1546(a). In order to obtain a conviction under either provision, the government
was required to prove Lefsih’s state of mind:
that contrary to his account, Lefsih
knowingly provided a false answer to Question 23. See 18 U.S.C. §§ 1015(a), 1546(a).
Citations to the “J.A.” refer to the Joint Appendix, and citations to the “S.A.” to
the Supplemental Joint Appendix.
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Lefsih’s two-day trial began on April 27, 2016. The government could present no
direct evidence that Lefsih knew, at the time he filled out his N-400 form, that his answer
to Question 23 was false. Instead, as is common in establishing a defendant’s state of
mind, the government relied on circumstantial evidence. See United States v. Santos, 553
U.S. 507, 521 (2008) (government customarily proves knowledge with circumstantial
Through its first witness, Special Agent Tony Bell of the Immigration and
Customs Enforcement division of Homeland Security Investigations, the government
sought to establish that Lefsih was fully capable of correctly understanding Question 23.
Bell, who had investigated and interviewed Lefsih prior to Lefsih’s indictment, testified
that Lefsih was a proficient English speaker. He also reviewed Lefsih’s educational
background, including work toward a master’s degree in physics at a Paris school;
excellent performance in classes at Wake Tech Community College; and high grades on
English proficiency and placement tests.
In addition, Bell’s testimony called into question Lefsih’s motives in entering the
country through the Diversity Program. Bell testified that in his experience, it was
unusual that someone like Lefsih would apply only for a diversity visa through the
Diversity Program lottery – with low odds of success – and not for a student visa.
According to Bell, Lefsih explained this decision as turning on the “better class of entry”
offered by a diversity visa. J.A. 114. Bell understood Lefsih to be referring to the fact
that students are admitted only for the purpose of attending school and “tracked” while
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they are in the country, J.A. 115, whereas diversity-visa holders enter as legal permanent
residents and without similar restrictions.
The government’s next witness was Gary Freitas, a senior officer with the United
States Citizenship and Immigration Services, who testified about the Diversity Program
and the naturalization application process. Freitas began by explaining that the Diversity
Program was established by Congress so that people from countries with historically low
immigration rates would have an opportunity to live permanently in the United States.
Upon hearing that, the district court asked Freitas a series of pointed questions about the
District court: You’re saying that Congress has set up a law that your
agency enforces that invites people to come to America from places where
they don’t normally come to America?
District court: That’s a shorthand way of saying it?
Freitas: Yes, it is.
District court: That’s incredible. And the reason that they don’t come to
America is because they haven’t tried to come to America? Is that it?
Freitas: Usually because of – they may not have family members here from
those countries or employment opportunities.
District court: Okay. Do you think anybody in America knows about this,
other than the Committee that sent it through Congress? Probably not.
Freitas: I didn’t know it before I started –
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District court: And it’s your job. Don’t you love Congress? I mean,
unbelievable, unbelievable. I’m sitting here 32 years, first time I ever heard
J.A. 146–47, 149. The district court continued, now focused on the particular nations
covered by the Diversity Program:
District court: And you’re talking about the hundred countries that nobody
could name if they had a list of 180 countries in the world?
District court: The bottom hundred.
District court: Like Mauritania.
District court: Moldavia or something like that.
Finally, the district court turned its questioning to the individuals – like Lefsih –
who participate in the Program:
District court: And Congress is aggressively trying to bring those people to
America by creating a lottery where they have special treatment?
Freitas: The [sic] set up the lottery. It’s – I’m not sure what the percentage
overall of between total immigrants that immigrant [sic] into the United
States per year.
District court: Aren’t there quotas on people coming from countries that
send a lot of people here, and you have to show you’re a doctor, an
engineer or a rocket scientist or someone who is going to contribute to the
well-being of the United States of America and make it a better place to
live because of your skill or personal characteristics?
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Freitas: Yes, there are limits on those.
District court: But if you’re in the bottom hundred countries in the world,
just come on.
Freitas: Well, they can apply for the lottery. They get a chance.
District court: But they don’t have to be a back surgeon or anything?
Freitas: No, they just need minimum qualifications equivalent to a high
J.A. 148–49. Shortly thereafter, the district court returned to a discussion of the kind of
people who enter the United States with diversity visas:
District court: So if you get lucky and win the lottery and get a card to
come to America you can drag along your ten kids and four wives or what?
Freitas: Well, your spouse.
District court: Your spouse and your kids and your uncle and your brother?
Freitas: No, no, just immediate.
At no point did Lefsih object to any of the district court’s questions or comments.
At the close of the government’s case-in-chief, Lefsih moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29, arguing that the government had not
proved beyond a reasonable doubt that he knew he was answering falsely when he replied
“no” to Question 23. The court took the motion under advisement.
Lefsih was the only witness for the defense. And the core of Lefsih’s testimony
was that his incorrect answer to Question 23 was an honest mistake, rather than a
knowing falsity. According to Lefsih, he did not understand what the word “cited”
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meant, or that “traffic tickets are actually included in the word cited.” J.A. 229. Instead,
because the word “cited” appears between “arrested” and “detained” in Question 23,
Lefsih assumed that it carried a similar meaning: being taken into custody. Because he
had not been detained as a result of his traffic violations, Lefsih did not understand that
those infractions fell within the scope of Question 23. As Lefsih testified, “It never
occurred to [me] that [a] traffic ticket could be [a] criminal offense.” J.A. 226.
The defense sought to bolster Lefsih’s account by introducing other immigration
forms that expressly clarify whether traffic tickets are within the scope of questions
regarding criminal history. In light of Question 23’s failure to provide this clarification,
the defense argued, the government could not meet its burden of proving that Lefsih’s
answer was a knowing and purposeful false statement rather than an inadvertent error.
After closing arguments, the district court instructed the jury. Reiterating a point
made during its preliminary instructions at the start of trial, the judge told the jurors:
“My job . . . is to preside over the trial. I don’t have any position about the outcome of it.
I’m like the referee or the umpire. You’re the actual judges of the facts.” J.A. 272. Later
in the instructions, the court added: “[I]f during the course of the trial I made any
comments or asked any questions or made any rulings, you should not interpret from that
that I have any position or opinion about the outcome of the case. I simply do not.” J.A.
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274. 2 After approximately 30 minutes of deliberation, the jury returned a verdict of
guilty on all counts.
After the verdict, the government dismissed the two false statement counts against
Lefsih in order to avoid potential double jeopardy issues. Lefsih renewed his Rule 29
motion for a judgment of acquittal on the remaining immigration fraud counts. The
district court denied that motion at sentencing, and sentenced Lefsih to time served. 3
This timely appeal followed.
We begin with Lefsih’s first argument: that the district court improperly denied
his Rule 29 motion for a judgment of acquittal, because the government’s evidence was
insufficient to show that he knowingly gave a false answer to Question 23. “A defendant
challenging the sufficiency of the evidence to support his conviction bears a heavy
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotation marks omitted). In reviewing the evidence, we must draw “all reasonable
In its preliminary instructions to the jury before the start of trial, the district court
used similar language: “[N]othing that I say or do during the course of the trial is
intended to indicate, nor should you take it as indicating, what your verdict should be. In
other words, I don’t have any position about the outcome of the case. I’m the referee.
I’m not on one side or the other. So don’t think that because I make a ruling one way or
another that I think it ought to be decided a certain way; I don’t.” J.A. 82.
After sentencing, Lefsih immediately was taken into custody by ICE agents to
await deportation proceedings. Lefsih was detained in Louisiana, pending removal
proceedings before an immigration court.
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inferences from the facts proven to those sought to be established” by the government.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). And Lefsih can prevail
only if no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
We agree with the district court that Lefsih cannot meet this “high bar.” J.A. 335
(“Given this high bar and heavy burden, the Court elects not to disturb the jury’s
verdict.”) (internal quotation marks omitted).
The government started its case with a concededly false statement: Lefsih’s false
answer to Question 23. It then presented ample evidence from which a rational jury
could conclude that there was no language barrier or other impediment that would have
prevented Lefsih from understanding the correct meaning of Question 23 and applying it
properly to his numerous traffic citations. The only remaining question was whether the
jury would credit Lefsih’s testimony that he nevertheless made an honest mistake when
he answered “no” on his N-400 form. And while a reasonable jury might have believed
Lefsih’s account of confusion and misunderstanding, there is nothing that would have
compelled it to do so.
Cf. United States v. Hester, 880 F.2d 799, 803 (4th Cir. 1989)
(finding sufficient evidence where jury could have inferred knowledge from “sufficiently
strong” circumstantial evidence). Such credibility determinations fall squarely within the
purview of the jury, and are not to be reassessed on appeal. See Green, 599 F.3d at 367;
United States v. Roe, 606 F.3d 180, 186 (4th Cir. 2010). Because a rational jury could
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infer the requisite knowledge on Lefsih’s part, Lefsih cannot prevail on his claim of
insufficient evidence. 4
We turn next to Lefsih’s argument that the district court improperly conveyed
negative views of Diversity Program immigrants to the jury, thus depriving him of a fair
trial. Because Lefsih did not raise a timely objection, we review this alleged impropriety
for plain error only. See United States v. Martinovich, 810 F.3d 232, 238 (4th Cir. 2016).
Under that standard, our review is limited to plain errors that affect a defendant’s
substantial rights. Id.; United States v. Olano, 507 U.S. 725, 734 (1993). In this context,
that means that “we may not intervene unless the judge’s comments were so prejudicial
as to deny the defendant an opportunity for a fair and impartial trial.” Martinovich, 810
F.3d at 238 (quoting United States v. Smith, 452 F.3d 323, 331 (4th Cir. 2006)). We
conclude that the judicial intervention in this case was sufficiently prejudicial to meet this
For the first time on appeal, Lefsih also argues that the government’s evidence
falls short of establishing another element of immigration fraud: that a false statement be
“material” to the naturalization process. See 18 U.S.C. § 1546. We find no defect here,
let alone the kind of “plain error” that would warrant reversal where a defendant fails to
make a timely objection at trial. See United States v. Olano, 507 U.S. 725, 732 (1993).
A false statement to a government agency is “material” if “it has a natural tendency to
influence agency action or is capable of influencing agency action.” See United States v.
Ismail, 97 F.3d 50, 60 (4th Cir. 1996) (internal quotation marks omitted). Here, the
government presented unrebutted testimony that knowledge of Lefsih’s repeated traffic
violations would have allowed it to better evaluate Lefsih’s moral character and fitness
for entry by, for instance, exploring whether the incidents involved bodily injury, drugs
or alcohol, or a general “disregard for the law.” J.A. 159. A reasonable jury could have
relied on that testimony to find materiality.
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high threshold and “undermine confidence” in Lefsih’s conviction, see id. at 242, and
accordingly, we vacate the conviction. 5
The crux of Lefsih’s claim is that the district court improperly interfered with his
trial through “ill-advised” questions and comments, see Martinovich, 810 F.3d at 239
(finding error in district court’s “ill-advised comments and interference”), posed to the
government’s second witness, Gary Freitas. Specifically, Lefsih argues that the district
court impermissibly conveyed to the jury, through questions and comments that
otherwise were wholly extraneous, the court’s skepticism of the Diversity Program
through which Lefsih entered the country, as well as its negative view of the immigrants
– like Lefsih – who avail themselves of the Program. We must agree.
It is of course true, as the government reminds us, that federal judges need not sit
silently during the presentation of evidence at trial. The Federal Rules of Evidence
charge district courts with “exercis[ing] reasonable control over the mode and order of
examining witnesses and presenting evidence,” Fed. R. Evid. 611(a), and that authority
extends to both “direct participation in the examination of witnesses” and “commenting,
with proper deference to the jury, upon the evidence.” Sit-Set, A.G. v. Universal Jet
Exchange, Inc., 747 F.2d 921, 925 (4th Cir. 1984). Indeed, in discharging his or her
duties, it may be incumbent on a trial judge to question a witness “for the purpose of
In light of this ruling, we need not address Lefsih’s final argument that the
district court erred in denying his motion for a continuance and change of venue.
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developing the facts,” Hoffler v. United States, 231 F.2d 660, 661 (4th Cir. 1956), or to
ensure that the “case on trial is presented in such way as to be understood by the jury,”
United States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983). Similarly, a judge may find it
necessary to comment on the evidence presented at trial, in order to “assist the jury in
understanding the facts and issues in dispute.” United States v. Tello, 707 F.2d 85, 90
(4th Cir. 1983). And there is no question that in these core matters of trial management, a
district court is granted broad discretion. See United States v. Godwin, 272 F.3d 659, 676
(4th Cir. 2001).
But there are limits to that discretion. See id. at 677 (with respect to judicial
interventions in trial, “a judge has no ‘impregnable cloak of immunity’” (quoting Wallace
v. United States, 281 F.2d 656, 665 (4th Cir. 1960))). And as we have made clear, those
limits are breached when judicial intrusion gives rise to an “appearance of bias or
partiality,” Parodi, 703 F.2d at 776, creating for the jury “an impression of partiality” or
“apparent  favor or disfavor for one side or the other,” United States v. Head, 697 F.2d
1200, 1210 (4th Cir. 1982). If a district court, through its questions of a witness,
interjects a “negative impression” of the defendant into a trial, or conveys “skepticism” of
the defendant or his evidence, then the court has crossed the line from active trial
management to “unfairly lending the court’s credibility” to the government’s case.
Godwin, 272 F.3d at 678, 675, 674.
We have applied that principle to find error when a district court becomes “overly
involved,” id. at 679, in one party’s presentation of its case, giving rise to an appearance
of partiality. Through a pattern of one-sided interruptions and questions of defense
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witnesses, for instance, a court may convey to the jury that it is on the side of the
government. See id. Most recently, in Martinovich, we considered a court’s repeated and
unnecessary interruptions of defense counsel and questioning of defense witnesses, and
concluded that the court had “strayed too far from convention.” 810 F.3d at 240. The
concern in such cases is not necessarily with the content of the court’s questions or
comments, but rather that the jury may infer from the very fact of repeated interventions
or interruptions that the court is sympathetic to one side of the case. See Godwin, 272
F.3d at 677 (“[W]hen a judge cross-examines a defendant and his witnesses extensively
and vigorously, he may present to others an appearance of partisanship[.]”) (internal
quotation marks omitted) (emphasis removed); United States v. Cassiagnol, 420 F.2d
868, 879 (4th Cir. 1970) (“Constant or persistent interruption of defense counsel may
have the effect of contaminating the jury’s verdict by indicating the judge’s evaluation of
the weight of the evidence and the merits of the defense.”).
This is the more unusual case in which the primary problem is not the extent of
judicial participation at trial, but instead the actual content of the court’s questions and
comments. See United States v. Fuller, 162 F.3d 256, 259 (4th Cir. 1998) (describing as
“most troubling” district court statement, during jury instructions, that it did not credit
part of defendant’s testimony). This jury, in other words, would have no need to deduce
from a pattern of interruptions or questions that the district court was skeptical of the
defendant; here, the district court conveyed that skepticism directly. In the context of an
immigration-fraud case – that is, with immigration front and center before the jury – the
court began with a series of questions and comments suggesting a negative view of the
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very immigration program through which Lefsih had entered the country:
“[U]nbelievable, unbelievable.” J.A. 149. And contrary to the government’s argument,
what reasonably could have appeared to the jury as the court’s disapproval did not stop
with the Diversity Program itself, or the Congress that established it. Instead, the court
went on to provide a negative assessment of the people – like Lefsih himself – who make
use of the Diversity Program to come to the United States. According to the court, such
immigrants, unlike those admitted through other programs, need not exhibit the “skill or
personal characteristics” to “contribute to the well-being of the United States.” J.A. 148.
And the court further questioned whether these individuals – again, including Lefsih, on
trial for immigration fraud – act in good faith when participating in the Program,
suggesting that lottery winners could abuse the system by “drag[ging] along [their] ten
kids and four wives or what[.]” J.A. 152. As we have explained in reviewing the
sufficiency of the evidence, this is a case in which the credibility of the defendant was of
“crucial importance,” and as a result, aspersions cast by the court on the trustworthiness
of Diversity Program entrants would have carried special weight. See Godwin, 272 F.3d
We need not go through a line-by-line analysis of the court’s largely rhetorical
questions and comments. It is enough to say that taken together, they would have
conveyed to the jury the court’s “negative impression,” id., of the Diversity Program and
the immigrants who avail themselves of the Program, and thus of Lefsih himself. And
the impropriety of the judicial intervention here is magnified by the fact that on the other
side of the balance – the obligation of a court to keep “reasonable control” of the
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proceedings, Fed. R. Evid. 611(a), and ensure that relevant issues are comprehensible to
the jury, see Hoffler, 231 F.2d at 661 – there is nothing. A level of judicial participation
that might be understandable in a “multi-week trial that involved highly complex factual
issues . . . numerous witnesses, and several hundred exhibits,” see Martinovich, 810 F.3d
at 241, will be less appropriate in the context of the two-day, three-witness trial at issue
here. Cf. Smith, 452 F.3d at 333 (trial court intervention “crossed no line” where it
represented “attempt to cabin and control a two-week trial that featured numerous
witnesses, extensive amounts of evidence, and, even on appeal, an eight-volume joint
appendix totaling well over 2600 pages”). And the court’s interruptions and questions in
this case did nothing to elucidate important evidence that otherwise would have been
difficult for the jury to understand. Cf. Colombo v. Flemings, 43 F.3d 1465, 1994 WL
708486 at *4 (4th Cir. Dec. 14, 1994) (unpublished). On the contrary, the court’s critique
of the Diversity Program and the individuals who utilize that program had little, if
anything, to do with the actual evidence in the case against Lefsih, who was not on trial
for his method of entry into the United States but only for his answer to Question 23.
We have no reason to believe that the district court intended to convey a negative
impression of Lefsih to the jury, or to lend the “imprimatur” of its office to the case
against him. See Godwin, 272 F.3d at 678. But the court’s questions and comments –
sustained, one-sided, and in the context of this short and uncomplicated trial, wholly
gratuitous – nevertheless had that effect. Accordingly, we find that the district court’s
actions were in error.
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As noted above, because Lefsih failed to object at trial to the district court’s
interventions, we may correct the court’s error only if it is both plain and one that affects
Lefsih’s substantial rights by denying him the “opportunity for a fair and impartial trial.”
Godwin, 272 F.3d at 673, 679 (internal quotation marks omitted); see Martinovich, 810
F.3d at 238. Because “the legal principles governing judicial interference claims have
been long settled,” the district court’s error qualifies as “plain” for purposes of plain error
review. Godwin, 272 F.3d at 679. And on the facts of this case, we must also conclude
that the error was sufficiently prejudicial that it denied Lefsih the “fair and impartial
trial,” id., to which he was entitled and “undermine[d] confidence in [his] conviction,”
Martinovich, 810 F.3d at 242.
The most important factor here is the closeness of the government’s case against
Lefsih. Where the case against a defendant is “compelling and overwhelming,” we have
been prepared to infer that a jury did not convict because of a court’s erroneous
Godwin, 272 F.3d at 680 (erroneous intervention does not affect
substantial rights where “the evidence is overwhelming and a perfect trial would reach
the same result”); see Fuller, 162 F.3d at 260 (judge’s expression as to defendant’s guilt
does not warrant reversal where “facts required for conviction were admitted by the
defendant during his testimony and were not controverted by any other evidence”). In
Martinovich, for example, we denied relief under the plain error standard where
“[t]estimony from 28 witnesses and approximately 250 exhibits” added up to an
“overwhelming” case against the defendants, so that we could not conclude that the
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district court’s improper interruptions and questions had an impact on the trial’s outcome.
810 F.3d at 242.
Here, by contrast, the government’s case was substantially weaker.
government could present no direct evidence on the critical question at the heart of its
case: whether Lefsih knew when he answered Question 23 of the N-400 form that his
answer was false, or whether, as Lefsih testified, he honestly but mistakenly believed that
traffic tickets fell outside the scope of the form’s inquiry into criminal history. And while
it is not unusual for the government to rely exclusively on circumstantial evidence in
proving state of mind, see Santos, 553 U.S. at 521, the government’s circumstantial
evidence in this case was not especially strong. It may be, as the government sought to
establish, that Lefsih speaks English and excels in certain academic subjects. But there is
space between speaking the language and understanding the meaning of “arrested, cited,
or detained” as it pertains to traffic tickets, and indeed, after the jury’s verdict, the district
court here characterized as “sincere” Lefsih’s account of his “unknowing mistake.” J.A.
The evidence against Lefsih is constitutionally sufficient, but it is not “compelling
and overwhelming,” see Godwin, 272 F.3d at 680.
Additional factors point in the same direction. First, the timing and context of the
district court’s interjections could only have amplified their prejudicial effect. Lefsih’s
sole defense – that he did not believe Question 23 included traffic tickets – depended
critically on his credibility. But before Lefsih could take the stand, the district court had
negatively characterized the program through which he entered the United States and
commented on the risk that individuals like him would take undue advantage of the
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Diversity Program. And those concerns would have been especially resonant for the jury,
because the government already had cast as suspicious Lefsih’s choice to rely on the
Diversity Program for entry rather than seek a student visa. Given this context, the
court’s commentary was “potentially fatal” to Lefsih’s credibility-based defense. See id.
Second, factors we have relied on in other cases to mitigate the prejudicial effect
of improper judicial interventions are absent here. This is not a case involving a “single
comment” by a court, see United States v. Williams, 49 F. App’x 420, 426 (4th Cir. 2002)
(“single comment” by district court not so prejudicial as to warrant correction on plain
error review), or even multiple comments spread “throughout several weeks of trial” so
as to minimize their relative impact, see Martinovich, 810 F.3d at 242.
improper questions and comments were “persistent and repeated,” see Cassiagnol, 420
F.2d at 879, posed to one of only two government witnesses at a trial lasting for less than
two full days. Nor were the court’s interventions even-handed, directed at both parties
alike. See Martinovich, 810 F.3d at 241 (finding no effect on substantial rights where
district court interrupted and questioned both defense and government witnesses); Head,
697 F.2d at 1210 (finding no prejudice where court’s “patent overinvolvement” and
criticism were directed at and affected both sides). Instead, the improper questions and
comments were entirely to the government’s benefit, expressing disapproval only of the
Diversity Program and its beneficiaries. And while a lengthy jury deliberation followed
by a divided verdict may provide some assurance that a jury was not affected by
improper judicial interjections, Martinovich, 810 F.3d at 242; see United States v.
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Cornell, 780 F.3d 616, 627 (4th Cir. 2015), the jury here deliberated for only 30 minutes
before returning with a guilty verdict on all counts.
Against all of this, the government points to the district court’s “curative
instructions,” Br. for Appellee at 33, given before and after trial, instructing the jury that
the court has no “position about the outcome of the case” and that “nothing that I say or
do during the course of the trial is intended to indicate, nor should you take it as
indicating, what your verdict should be.” J.A. 82. It is true, as the government argues,
that proper curative instructions may “save [a] trial from reversal” where a district court
has improperly intervened. Fuller, 162 F.3d at 260; see Smith, 452 F.3d at 333. But we
also have recognized that instructions will not always be enough to “undo” the effects of
judicial intervention even under plain error review, see Martinovich, 810 F.3d at 241, and
the instructions here cannot bear the weight the government puts on them.
As we have explained, a curative instruction regarding a judge’s improper
expression of opinion should be given contemporaneously with or at least close in time to
the inappropriate comment itself, so that the jury readily can connect the two. See Tello,
707 F.2d at 88 (judge “should give [the curative] instruction in sufficient proximity to his
comment so that the jury will have it clearly in mind when the comment is made”). In
Fuller, for instance, we relied on the effectiveness of curative “admonitions” that were
“given to the jury immediately preceding and following the judge’s expression of
opinion” about the defendant. 162 F.3d at 260; see also Tello, 707 F.2d at 89–90 (relying
on judge’s statement at conclusion of improper comments). In this case, on the other
hand, the court did not issue a curative instruction immediately after its improper
Pg: 21 of 22
comments, or even at the conclusion of Freitas’s testimony, during which the court’s
interventions occurred. Nor, importantly, did the standard instructions ultimately given at
the close of trial make any direct reference to the court’s commentary on Diversity
Program immigrants. Neither the timing nor the content of the “boilerplate” instructions,
in other words, clearly tied those instructions to the error purportedly addressed. See
Universal Jet Exchange, Inc., 747 F.2d at 926 (finding district court’s “boilerplate final
instruction to the jury” after persistent judicial intervention insufficient to “remove the
impression . . . necessarily conveyed of judicial partiality”). As a result, and in light of
all of the factors bearing on prejudice, we cannot find these instructions sufficient to
“undo” the harm, see Martinovich, 239 F.3d at 241, caused by the district court’s error.
Again, we do not doubt that the district court in this case acted without any intent
to influence the jury improperly. And we appreciate that the defendant’s failure to object
at trial – which might have allowed the district court to correct its error in real time –
creates an especially “high bar for appellate review.” See id. at 239. But in the particular
circumstances of this case, we conclude that the court’s interventions were not only
plainly erroneous but also “so prejudicial as to deny the defendant an opportunity for a
fair and impartial trial,” thus affecting Lefsih’s “substantial rights.”
See id. at 238
(internal quotation marks omitted). And because the error here is of the kind that may
seriously affect the “fairness, integrity or public reputation of judicial proceedings,” we
will correct it by vacating Lefsih’s conviction. See Olano, 507 U.S. at 736 (describing
circumstances under which court of appeals may exercise discretion to correct a plain
error affecting substantial rights).
Pg: 22 of 22
For the foregoing reasons, we vacate the judgment of conviction and remand for
proceedings consistent with this opinion.
VACATED AND REMANDED
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