Trial Judge's Comments About Immigration Program (and the People Who Use It) Require Reversal

US v. Lefsih: Lefsih came to the United States from Algeria via the Diversity Immigrant Visa Program ("DIVP") - a program that provides chances for people from countries without a lot of immigration to the United States to qualify for a lottery and, if they win the lottery, to legally enter the United States. After five years in the United States, Lefsih sought citizenship. On an application form he answered "no" to a question about whether he had "ever been arrested, cited, or detained" by law enforcement. In truth, he had received multiple traffic citations while working as a cab driver. Lefsih claimed that he didn't think such tickets fit the definition of "arrested, cited, or detained" and didn't knowingly provide a false answer. Lefsih was charged with two counts each of making a false statement and immigration fraud and went to trial.

At trial the Government presented testimony from an immigration officer who explained how the DIVP worked. During his testimony the district court repeatedly interjected with its feelings on the program, expressing its amazement that such a thing existed: "Do you think anybody in American knows about this, other than the Committee that sent it through Congress? Probably not."; "Don't you love Congress? I mean, unbelievable, unbelievable. I'm sitting here 32 years, first time I ever heard this." The district court later asked if the witness was "talking about the hundred countries that nobody could name," which were "the bottom hundred," such as Mauritania or Moldova. The court contrasted immigration policies involving "countries that send a lot of people here" and where "you have to show you're . . . someone who is going to contributed to the well-being of the"country with those in the DIVP who "don't have to be a back surgeon or anything."  Finally, the court asked "if you get luck and win the lottery and get a card to come to America you can drag along you ten kids and four wives or what?" Lefsih didn't object to any of this and was eventually convicted on all counts. The district court dismissed the two false statement counts to avoid double jeopardy issues and imposed a sentence of time served (Lefsih was turned over to ICE custody for deportation).

The Fourth Circuit reversed Lefsih's convictions. Although the court found that Lefsih's convictions were supported by sufficient evidence, the court concluded that the district court's repeated interjections about the DIVP denied Lefsih of his right to a fair trial (even applying plain error review). The district court's interjections had the effect of "unfairly lending credibility to the government's case." That was particularly true because the comments went beyond isolated statements about DIVP itself to include criticism of the people who took advantage of the program, like Lefsih. The problem was not "the extent of the judicial participation at trial, but instead the actual content of the court's questions and comments." Lefsih was able to demonstrate prejudice because the Government's case was "substantially weaker" than the "compelling and overwhelming" evidence in similar cases. Furthermore, the district court's belated instruction to the jury that anything it says should not impact their decision was insufficient to cure the prejudice.