Prison Cells

A federal judge inappropriately told a jury that the defendant was lying on the witness stand, the federal appeals court in Denver concluded on Monday,  while simultaneously finding the error was not sufficient to overturn his convictions.

The federal government admitted that U.S. District Court Judge William J. Martínez committed the error, but argued the evidence to convict Jose Burciaga-Andasola was so overwhelming that the U.S. Court of Appeals for the 10th Circuit should decline to grant a new trial. A three-judge panel agreed.

“[W]e do not downplay the seriousness of the district court’s error. Improper judicial testimony that impacts the credibility of the defendant or a key witness can, in some cases, operate to undermine the defendant’s entire defense,” wrote Judge Nancy L. Moritz in the panel’s Sept. 13 opinion. But, she added, “this is not such a case.”

Andasola challenged his 2019 convictions for distributing heroin and methamphetamine, which earned him a 150-month prison sentence. At trial, the jury heard about Andasola’s sales to a federal informant, which included testimony from agents, audio of taped phone conversations and footage from a hidden camera capturing a transaction made between Colorado Springs and Pueblo.

But on the witness stand, Andasola, though a Spanish interpreter, claimed the video played in the courtroom depicting him handing over packages had “been changed.” He questioned whether the video was “the original one” he had seen in jail and repeatedly referenced differences between “that video and this video.”

Martínez took both sets of lawyers aside and asked whether there were, in fact, two videos. Andasola’s lawyer said they did not think so. The prosecutor definitively said no, and Andasola’s statement was “essentially a lie in front of the jury.”

The judge agreed that Andasola had created an impression for the jury that there was a second video.

Andasola “could think there’s a flying spaghetti monster in the courtroom. But we’re talking ... about what exists,” Martínez said, before asking the defense if there was any proof of a second video. After hearing none, he and the parties discussed what he would tell the jury. Eventually, he informed jurors: “To the extent there was any implication that another video exists, that is not an accurate statement. There is only one video.”

On appeal to the 10th Circuit, Andasola argued Martínez had violated the rule that prohibits a judge from testifying as a witness at trial.

"The judge just told the jury a fact that was directly contradictory to what the defendant himself had testified," Jacob Rasch-Chabot, an assistant federal public defender, told the panel. "The defendant still has the Sixth Amendment right to have the jury be the lie detector and the fact finder."

The U.S. Attorney's Office maintained that Andasola's defense attorney at trial had agreed that Martínez could instruct the jury about there being only one video.

"There’s more than that," Moritz quickly responded, quoting the judge's further comment that it was "not an accurate statement" for Andasola to say another video existed.

"So the court does more than what defense counsel agreed to," she said. "There’s a difference between saying there’s no other video and the defendant has lied, essentially."

The panel ultimately decided Martínez himself introduced evidence to the jury by deciding for them a factual issue: whether the video had been altered. But the panel disagreed with Andasola that the judge's comments "decimated" his defense. The jury heard Andasola discussing drug prices and quantities, telling the informant how to best evade police and arranging for the purchase.

Because the evidence against him was overwhelming, there were not sufficient grounds to believe Martínez's instruction affected the verdict.

The case is United States v. Andasola.

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