He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevancies." Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962).See ABA Standards Relating to the Administration of Criminal Justice, The Function of the Trial Judge ยง 1.1(a) (1972).
Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (citing Edgington v. United States, 164 U.S. 361, 366, 17 S.Ct. 72, 41 L.Ed. 467 (1896)). Ninth Circuit law indicates that the requirement set forth by the Supreme Court is met by โ[i]nstructing the jury that good-character testimony, โlike other testimony,โ may generate a reasonable doubt as to guilt, justifying an acquittal....โ Smith v. United States, 305 F.2d 197, 206 (9th Cir.1962); accord Carbo, 314 F.2d at 746. The Ninth Circuit does not โrequire any more than that the jury be freely permitted to consider character evidence along with all other evidence upon the issue of guilt.โ
Moreover, the Court properly instructed the jury that they were the finders of fact and should not read into any of the Court's comments. See Robinson, 401 F.2d at 252 (quoting Smith v. United States, 305 F.2d 197, 205 (9th Cir. 1962) (noting that a court may comment on the credibility of a witness provided it clearly instructed the jury that they determine the facts and may disregard the court's comments)).
He has the responsibility to preside in such a way as to promote a fair and expeditious development of the facts unencumbered by irrelevancies." United States v. Harris, 501 F.2d 1, 10 (9th Cir. 1974) (quoting Smith v. United States, 305 F.2d 197, 205 (9th Cir. 1962)). As such, a district judge has discretion to allow jurors to submit questions to witnesses.
It is well established that a trial judge is more than a moderator or umpire. United States v. McDonald, 576 F.2d 1350, 1358 (9th Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978); Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962). It is entirely proper for him to participate in the examination of witnesses for the purpose of clarifying the evidence, confining counsel to evidentiary rulings, controlling the orderly presentation of the evidence, and preventing undue repetition of testimony.
, 458 U.S. 1107, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982) (unnecessary; consider character evidence on a par with other evidence); Poliafico v. United States, 237 F.2d 97, 114 (6th Cir. 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957) (unnecessary; consider character evidence on a par with other evidence); Black v. United States, 309 F.2d 331, 343-44 (8th Cir. 1962), cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963) (disapproved in all cases); Carbo v. United States, 314 F.2d 718, 746 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498 (1964) (unnecessary); Oertle v. United States, 370 F.2d 719, 727 (10th Cir. 1966), cert. denied, 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329 (1967) (unnecessary except in certain circumstances); United States v. Borders, 693 F.2d 1318, 1328-30 (11th Cir. 1982), cert. denied, 461 U.S. 905, 103 S.Ct. 1875, 76 L.Ed.2d 807 (1983) (unnecessary; consider character evidence on a par with other evidence); Smith v. United States, 305 F.2d 197 (9th Cir. 1962) (unnecessary except in special circumstances). Our opinion in Donnelly cited the Tenth Circuit, which once required the "standing alone" instruction.
alone" charge have reached differing conclusions. Cf. United States v. Winter, 663 F.2d 1120 (1st Cir. 1981) (instruction that character evidence may of itself create reasonable doubt not required); United States v. Cramer, 447 F.2d 210 (2d Cir.), cert. denied, 404 U.S. 1024, 92 S.Ct. 680, 30 L.Ed.2d 674 (1971) (under certain circumstances defendants entitled to instruction that character evidence may alone create reasonable doubt); United States v. Hewitt, 634 F.2d 277 (5th Cir. 1981) (in some circumstances jury must be instructed that character evidence may of itself create reasonable doubt); United States v. Donnelly, 179 F.2d 227 (7th Cir. 1950) (error to refuse instruction to effect that character evidence may of itself create reasonable doubt); Gross v. United States, 394 F.2d 216 (8th Cir.), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1968) (in some circumstances jury must be instructed that character evidence alone may be sufficient to raise reasonable doubt); Smith v. United States, 305 F.2d 197 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962) (absent special circumstances, proper to refuse to instruct that character evidence alone may suffice to create reasonable doubt); United States v. McMurray, 656 F.2d 540 (10th Cir. 1980), rev'd on other grounds, 680 F.2d 697 (10th Cir. 1981) (in banc) (in some circumstances jury must be instructed that character evidence standing alone may create reasonable doubt, but not necessary if defendant relies upon other non-character evidence); and United States v. Lewis, 482 F.2d 632 (D.C.Cir. 1973) (defendant entitled to instruction that character evidence may of itself generate reasonable doubt). Here, when the district court addressed the jury, it omitted any mention of character evidence or how such testimony should be considered. Usually this kind of alleged defect in the trial proceedings would require consideration, on appeal, of whether the district court erred as a matter of law.
The judge's comments on the theories Ness claimed to rely on for his belief that he was entitled to an exemption from withholding were not inaccurate. Insofar as the judge's colorful language may have been inappropriate, his curative instruction was sufficient to offset any prejudicial inferences his comments might have suggested. See generally Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962). Ness was not entitled to have the jury instructed in precisely the form he requested.
But a judge must be aware of his sensitive judicial position and be on guard to avoid even the appearance of advocacy or partiality. See United States v. Trapnell, 512 F.2d 10, 12 (9th Cir. 1975); United States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974); United States v. Harris, 501 F.2d 1, 9-11 (9th Cir. 1974); United States v. Malcolm, 475 F.2d 420, 427 (9th Cir. 1973); Smith v. United States, 305 F.2d 197, 205 (9th Cir.), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962). Charges of judicial misconduct are not dismissed lightly.
Since validly promulgated regulations have the force of law (see Public Utilities Commission of California v. United States, 355 U.S. 534, 542-543, 78 S.Ct. 446, 2 L.Ed.2d 470; cf. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403), they satisfy the authorization requirement of 18 U.S.C. ยง 1905. Cf. Smith v. United States, 305 F.2d 197, 201-202 (9th Cir. 1962), certiorari denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124; Laughlin v. United States, 154 U.S.App. D.C. 196, 205, 474 F.2d 444, 453, n. 12 (1972), certiorari denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402. As the Chrysler opinion demonstrates, contrary to Sears' assertion and the opinion of the D.C. Circuit in Charles River Park "A", Inc. v. Department of Housing and Urban Development, 171 U.S.App.D.C. 286, 293-294, 519 F.2d 935, 942-943 (1975), such a holding is consistent with the legislative history of the 1958 amendment to Section 301 (see 565 F.2d at 1187); in fact if there were doubt about Congress' purpose in Section 301 it could be argued that the second sentence of that statute, added in the 1958 amendment, punctures Sears' position about agencies' inability to authorize disclosure.