Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

MEMORANDUM^** 

Marvin K. Cannon, Jr., appeals the district court's denial of his motion to declare a mistrial. He argues that the district judge prejudiced his defense by posing two inappropriate questions while he testified on his own behalf. We will reverse only if the judge's questions were inappropriate and if it is " 'more probable than not that the misconduct materially affected the jury's verdict.' " United States v. Mostella, 802 F.2d 358, 360-61 (9th Cir. 1986) (quoting United States v. Nadler, 698 F.2d 995, 1001 (9th Cir. 1983)).

Cannon, charged with willfully failing to file tax returns, claimed that he believed in good faith that he was not required to pay taxes. During cross-examination, the district judge asked Cannon whether his failure to consult an accountant or a lawyer had been occasioned by the fact that he had known what the answer would be. Cannon responded, "No." The judge then asked why he had not sought such advice. Cannon responded that he had believed the information he had read.

It is not inappropriate for a judge to participate in the questioning of witnesses at trial; indeed, judicial guidance is often called for in conducting an orderly trial and clarifying the evidence presented. Mostella, 802 F.2d at 361; United States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987). The district judge's questions here were entirely proper. Moreover, any potential prejudice would have been cured when the judge instructed the jury that they should not be swayed by any comments he may have made. The jury was able to "freely perform its function of independent fact finder." United States v. Hickman, 592 F.2d 931, 936 (6th Cir. 1979).

AFFIRMED.