APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00205-01)
Before Garth and Higginbotham, Circuit Judges and Schwartz, District Judge.*fn*
The question presented on this appeal is whether the district court judge may state in his charge to the jury that he regarded the defendant "as devoid of credibility" and that he "did not believe (the defendant's testimony) absolutely and in all respects." We hold that inclusion of this statement in the charge deprived the defendant of his right to have questions of credibility decided by a jury. United States v. Gaines, 450 F.2d 186, 189 (3d Cir. 1971), Cert. denied, 405 U.S. 927, 92 S. Ct. 978, 30 L. Ed. 2d 801 (1972).
The defendant, James Anton, was charged in a fifteen-count indictment with use of the mails in furtherance of a fraudulent scheme. 18 U.S.C. § 1341 (1976). The government alleged that Anton and Carl Budde (who pled guilty prior to trial) had formed the Neumann Canonization Committee. The government further alleged that, in letters and telephone calls soliciting funds for this organization, Anton and Budde (or persons acting under their supervision) represented that the funds were for the Archdiocese of Philadelphia or the Roman Catholic Church, when in fact neither organization had authorized the solicitation.
At trial, Anton testified in his own behalf for approximately an hour and a half. The district court judge commented on that testimony in his charge to the jury:
The law of the United States permits the judge to comment to the jury on the evidence in the case. Such comments are only expressions of the judge's opinion as to the facts, and the jury may disregard them entirely, since the jurors are the sole judges of the facts.
The defendant testified without interruption. There was no question that his counsel asked of him that was not permitted of him to answer.
It is my recollection that his testimony absorbed approximately an hour and a half, and from that there was sufficient basis to assess his credibility.
The Court that is, the Trial Judge regarded him as devoid of credibility, and I do not believe James Anton absolutely and in all respects; however, you, as the jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves and the comment of mine is only the expression of my opinion.
During the course of a trial I occasionally ask questions of a witness in order to bring out facts not then fully covered in the testimony. Do not assume that I hold any opinion on the matters to which my questions may have related. Remember at all times that you, as jurors, are at liberty to disregard all comments of the Court in arriving at your own findings as to the facts. (emphasis supplied).
Both before and after these comments, the district court judge carefully instructed the jurors that they were the sole arbiters of the witnesses' credibility and that they were free to disregard his views.
After the charge had been given, the defendant made an objection at sidebar:
I take an exception to the charge insofar as the comments on the credibility of the defendant and state further that the prejudicial effect of this part of the charge is a basis for the motion for ...