District court testified as a witness when it instructed jury that only one video of defendant's drug deal existed. Error was harmless, though.

United States v. Andasola, __F.4th__, 2021 WL 4166671 (10th Cir. 2021) On redirect, the defendant—who was on the witness stand and facing charges for distributing methamphetamine and heroin—questioned whether the video played for the jury (of him providing drugs to an informant) was the same video the government produced pretrial. Over defense counsel’s objection, the district court followed the government’s suggestion to instruct the jury that only one video existed. On appeal, everyone agrees that the district court erred under Federal Rule of Evidence 605, which prohibits a judge from testifying as a witness at trial. The district court impermissibly commented on a factual issue for the jury. Yet, the error is harmless. Why? Because (1) the district court’s comment didn’t establish an element of the crime; (2) the other evidence of guilt was overwhelming; and (3) the defendant’s credibility was not diminished, again, because there was a lot of other evidence reflecting his orchestration of the video-recorded drug deal.