US v. Hemza Lefsih, 4th Cir., filed 8/14/17: Improper Judicial Comments Results in Reversal of Immigration Fraud Conviction

Holy cow, what a case.  Lefsih is an Algerian native who entered the country through the Diversity Immigrant Visa Program, a well-known program to many Americans, but not to this federal judge apparently.  The Government alleged that Lefsih committed federal crimes when he failed to identify some traffic citations on his immigration forms. Lefsih’s very compelling defense was that he did not realize that traffic citations were crimes that needed to be disclosed.  Seriously people, your tax dollars at work in this important federal prosecution.  One of the government’s witnesses was a senior official with the United States Citizenship and Immigration Services who testified about the Diversity Program and the naturalization application process.  The judge, who apparently knows nothing of immigration issues, asked this witness a number of questions:

District court:  “You’re saying that Congress has set up a law that your agency enforces that invites people to come to America from places where they don’t normally come to America…That’s incredible.  And the reason that they don’t come to America is because they haven’t tried to come to America?  Is that it…Do you think anybody in America knows about this, other than the Committee that sent it through Congress?  Probably not.”

But it got worse– the judge remarked on how “those people” are coming here because they’re from a particular country and not to “make it a better place to live because of your skill or personal characteristics.”

And then, this jaw-dropper:

“So if you get lucky and win the lottery and get a card to come to America you can drag along your ten kids and four wives or what?”

The Court found all of this to be a problem because obviously it is.

Lefsih’s claim on appeal as that the district court improperly interfered with his trial through “ill-advised” questions and comments posed to the government’s second witness.

The Court found that even though federal judges are not required to sit silently during the presentation of evidence at trial, there are limits to that discretion.  Those limits are breached when judicial intrusion gives rise to an “appearance of bias or partiality”, United States v. Parodi, 703 F.2d 768, 776 (4th Cir. 1983), creating for the jury “an impression of partiality” or “apparent[] favor or disfavor for one side or the other,”  United States v. Head, 697 F.2d 1200, 1210 (4th Cir. 1982).  If a district court, through its questions of a witness, interjects a “negative impression” of the defendant into a trial, or conveys “skepticism” of the defendant or his evidence, then the court has crossed the line from active trial management to “unfairly lending the court’s credibility” to the government’s case.  United States v. Godwin, 272 F.3d 659, 678.

Assessing the remarks in this case, the Court found that the district court’s comments suggested a negative view of the immigration program through which Lefsih had entered the country.  The court also provided a negative assessment of people, like Lefsih, who make use of the Diversity Program.  The Court additionally found that the judge even questioned the good faith of people who participated in the program, suggesting that the “lottery winners” could abuse the system by “drag[ging] along [their] ten kids and four wives or what[.]” All of this was highly improper.

Incredible. The Court declined to reverse on a sufficiency of the evidence claim, but it did reverse on the improper judicial comments claim.  It’s comforting, in my humble opinion, to see the Court take such a firm stance on protecting the dignity of defendants who come before our federal courts.