Although jury instructions can cure certain irregularities, at least under the plain error standard, Winstead, 74 F.3d at 1319, we agree with the Second Circuit that where, as here, the trial judge asked questions, objected to by counsel, that could have influenced the jury's assessment of the defendant's veracity, such interference with jury fact-finding cannot be cured by standard jury instructions. United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996). We need not consider whether special instructions or other measures might cure such errors, for none were employed here.

When the jury's evaluation of witnesses' credibility is likely to determine the outcome of a case, questions a judge asks those witnesses implicating their credibility assume heightened importance. See United States v. Cisneros, 491 F.2d 1068, 1074 (5th Cir. 1974); United States v. Filani, 74 F.3d 378, 385-87 (2d Cir. 1996); United States v. Mazzilli, 848 F.2d 384, 388-89 (2d Cir. 1988); cf. United States v. Fischer, 531 F.2d 783, 786, 787 (5th Cir. 1976) (holding that the court's negative comment on the credibility of defense witnesses unduly prejudiced the defendant because the credibility of the witnesses was decisive to the outcome). In Filani, the defendant was stopped at a Customs inspection station in J.F.K. airport.

See id. In assessing harmlessness, we first examine the external information to which the jurors were exposed. Next, we consider whether the prejudice caused by that information was outweighed by the judge's curative instructions, see United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) (considering the effect of the court's curative instructions but concluding that they could not cure prejudice); United States v. Cisneros, 491 F.2d 1068, 1075-76 (5th Cir. 1974) (same), or by the jurors' assurances that they remained impartial, see United States v. Angiulo, 897 F.2d 1169, 1186 (1st Cir. 1990) (relying on jurors' statements of continued impartiality). Finally, we examine the record as a whole, asking whether the evidence of the defendant's guilt was overwhelming, such that the jurors' exposure to the external information was ultimately harmless.

"A trial court may ask questions for such purposes as 'clarifying ambiguities, correcting misstatements, or obtaining information needed to make rulings.'" United States v. Messina, 131 F.3d 36, 39 (2d Cir. 1997) (quoting United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996)). "And, it 'may actively participate and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side.'"

Moreover, the trial judge's curative instructions here were "too little too late" because, where the reliability of witness testimony is so strongly implicated (here, that of the cooperating witnesses against that of the defense witnesses), "such interference with jury fact-finding cannot be cured by standard jury instructions." Tilghman, 134 F.3d at 421 (citing United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) ). The analysis might be different had the judge specifically withdrawn the comment by explaining that he was by no means suggesting that the witness's testimony on direct was not relevant to the case, but that is not what transpired here.

A trial court may ask questions for such purposes as "clarifying ambiguities, correcting misstatements, or obtaining information needed to make rulings." United States v. Filani, 74 F.3d 378, 386 (2d Cir. 1996) (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir. 1985)) (quotation marks omitted). And, it "may actively participate and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side."

Id. at 932; see also Rivas v. Brattesani, 94 F.3d 802, 807 (2d Cir. 1996) (discussing whether judge "conveyed to the jury the impression that it held a fixed and unfavorable opinion of defendant, [his] counsel, and [his] position"); Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996) (basing inquiry upon whether judge's conduct "went beyond judicial skepticism"); United States v. Tilton, 714 F.2d 642, 644 (6th Cir. 1983) (explaining that "potential prejudice lurks behind every intrusion into a trial made by a presiding judge"). In United States v. Filani, 74 F.3d 378 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit found that reversal of a drug-related conviction was required where the trial judge "t[ook] over the role of the prosecutor and display[ed] bias[.]" Id. at 385.

Id. The discussion of United States Court of Appeals for the Second Circuit in United States v. Filani, 74 F.3d 378, 383-84 (2d Cir. 1996), is instructive: "The trial judge's role in our jurisprudence came to us from the common law of England. . . . [T]he English trial judge is not a passive instrument of the parties, but has an independent duty to investigate the truth and, in so doing, may put questions in whatever form he pleases to the witness to elicit the truth more fully. . . . As a consequence, English judges traditionally exercised much control over juries in matters of fact as well as law. . . . This common law practice was one that, under the [c]onstitution, descended to and has been more or less maintained by [our] courts. . . . Thus, American judges, at least in theory, have some of the same powers in the conduct of a trial as their English counterparts. . . . [However, some] experienced trial judges have championed the view that our adversarial system gives little room for trial judges' questioning of witnesses. . . . One of the reasons for allowing an English judge greater latitude to interrogate witnesses

Moreover, the People do not cite in their brief a single instance of a question asked by the trial judge that plausibly could be viewed as helpful to the defense; nor could they for there were none. As the Second Circuit has stated, "[i]t is `clear error for a trial judge to ask questions bearing on the credibility of a defendant-witness prior to the completion of direct examination'" ( United States v. Filani, 74 F3d 378, 387 [2d Cir 1996], quoting United States v. Victoria, 837 F2d 50, 55 [2d Cir 1988]). Here, the trial judge repeatedly asked precisely such questions during counsel's direct examination of defendant.

In three of the federal cases cited by our dissenting colleague, the questioning of the defendant or defense witnesses figured prominently or exclusively in compelling reversal. See United States v. Ottaviano, 738 F.3d 586, 596 (3d Cir. 2013); United States v. Filani, 74 F.3d 378, 381 (2d Cir. 1996); Bland, supra, 697 F.2d at 264-65. In United States v. Rivera-Rodriguez, 761 F.3d 105, 111, 113 (1st Cir. 2014), cert. denied, ___ U.S. ___, 136 S. Ct. 1573, 191 L. Ed. 2d 656 (2015), the offending questions were posed to the government's two cooperating witnesses.