Constitutional Booker Error Found; Trial Claims Rejected

U.S. v. Nickl, 2005 WL 2858035 (10th Cir. Nov. 1, 2005).
During trial for a cluster of bank fraud charges, trial judge answered question for co-defrauding witness and interjected his opinion, violating Fed. R. Evid.605 and committing reversible error on aiding and abetting count of conviction. Other behavior by judge did not rise to plain error, and judge was not required to recuse himself: repeating prosecution examination of another witness, analogizing homosexuality to drug use during voir dire (defendant was gay), throwing defendant's partner out of the courtroom in front of the jury (10th: while judge’s behavior injudicious, he “did not display deep-seated antagonism which would make fair judgment impossible”). No due process problems with superceding indictment and bifurcated trial, since both done to deal with Blakely problems. 10th douses claims relating to exclusion of evidence, insufficient evidence, multiplicity of charges. Remand for re-sentencing on non-constitutional Booker error. Not harmless error: court sentenced at bottom end of guidelines, said sentence fair, said no discretion to depart on ground argued by Defendant, but did not “announce explicitly it would impose the same sentence if the guidelines were not mandatory.”