(dissenting).
I would reverse the conviction. In my view the trial court’s charge to the jury went so far beyond the permissible limits of comment that it denied Birnbaum the fair trial to which every defendant is entitled. The lengthy and confusing charge contained many irrelevant observations and emphasized arguments which were prejudicial to the defendant. On the points other than the judge’s erroneous and unfair charge, I concur in Judge Kaufman’s opinion.
While every trial judge would have his own views on how extensively to discuss the evidence in the case in his charge to the jury, here the trial judge had the benefit of the example of a charge in this very case upon the first trial. Judge Murphy’s charge was a model of clarity and brevity; it informed the jury of the applicable statutes, the questions of fact which the jury must decide and the appropriate rules to be applied in making its decisions.1 The charge on the first trial contained a minimum of comment on the evidence; in the printed record it covered 19 pages. There was little more which the trial judge needed to cover after the second trial but his charge covers 56 printed pages of the record because of his numerous comments. If ever there were an example of the wisdom of keeping the judge’s charge down to a minimum of what the case requires it lies in the comparison of the charges to the jury on the first and the second trials of this case. Thus it is not too surprising that the additional two hours which the second jury spent in listening to the ruminations of the trial judge were freighted with much unnecessary matter. Instead of remaining an impartial arbiter instructing the jury on its duties, the judge at many points argued and emphasized the government’s contentions. A reading of the charge makes it crystal clear that the judge was strongly of the view that the defendant was one of Guterma’s gang, that he was guilty and that it was the duty of the jury to convict him. Had this been done fairly we ought still to affirm as I cannot disagree with my brethren in their conclusion that proof of guilt was overwhelming. But here the trial judge imported many extraneous considerations into the case; he emphasized matters which did not need mention; *266and he argued the government’s side of important bits of evidence.
The government’s case depended upon whether the jury believed the essentials of the testimony of Guterma, Eveleigh and Leonhardt. The defense argued that these three government witnesses were not to be believed in view of their past records and their low regard for truth-telling and because they had good reason to earn consideration from the government by implicating Birnbaum. The references to these witnesses emphasized the government’s position and omitted entirely any mention of the possible reasons for giving false testimony against Birnbaum. After stating the government’s position that, having served their sentences, they had nothing to gain in giving testimony, he suggested that the jury weigh the possibility of revenge as a motive. The trial judge made no mention of the evidence that Guterma was then on parole and that Eveleigh was under an order of deportation, and when this omission was called to his attention by defense counsel, the judge refused to correct his comment. In addition, the judge made no allusion to the fact that when Leonhardt gave his testimony he had a federal fraud indictment pending against him.
Moreover, the trial judge made it clear in several ways that it was important that the jury consider Birnbaum’s relationship with these three witnesses because Birnbaum might well be as bad a person as every one of them. Of course this was not the charge before the jury; the question was not guilt by association, but whether Birnbaum assisted in the bribing of Simon. After a detailed and lengthy summary of the government’s case, followed by numerous generalizations regarding the law applicable to the conspiracy charge, the trial judge stated:
“What manner of human beings in the main came before us? Certainly not the docile, the meek or the humble. They appear bold, aggressive, accustomed to swift financial deals with a twist. Men unacquainted with humility or sensitivity. That does not mean that it necessarily follows that their testimony is unworthy of belief. The truth emerges from the most unlikely sources. In operations of the character which confront us, the government must often rely and call to the stand even unsavory characters to count on their testimony to knit together the fragments of untainted evidence, to spell out a diabolical scheme.
“The government, in other words, mantains that these were birds of a feather who stuck together, and the defendant was one of them. But it is for you to determine how deeply involved the defendant really was with the operations of Guterma and his clique. Was he one of the gang, to use the vernacular? Did Guterma and his associates let him in on the ground floor and reveal to him the full force of their operations, or was he on the outside looking in ? Did they just use him for his particular professional skill without revealing their true objective?”
The clear implication was that it would be enough for the jury to find that Birnbaum was “one of the gang,” as he then would know what was going on and would be a party to it. While it is true that the court followed this with the suggestion that an accountant does not always know what his clients are up to and that he is not guilty if he merely gives professional advice, this did not redress the balance because somewhat later the judge returned to the theme in words which startled even the prosecutor:
“Now, take another thing. The government contends, or at least this is my suggestion, that the defendant was up to his ears in graft and corruption, with the Denver deal, with the various transactions from which he made a profit; that they were shady in character, he well knew, and this was long before Simon made his appearance on the scene. Well, the defendant eoncededly made out the returns for Leonhardt for 1955 and for a few years before. He knew Leonhardt. He said he did. He testified he knew him.
*267“Well, then, if that was the relationship between Leonhardt and the defendant as of the close of 1956 when Simon first made his appearance, what importance do you attach to two pieces of evidence: one, that the defendant was no longer Leonhardt’s accountant ? Two men, says the government, corrupt, having something on one another, yet they bust up their relationship as accountant and client. What do you make of the letter that the defendant sent around that time asking for a professional fee? What weight do you give that?”
This is the stuff of which prosecutors make their summations; it ought not to be the stuff with which judges charge juries. The issue was not whether Birnbaum was “up to his ears in graft and corruption,” or whether he had made a profit from some deals which were “shady in character.” Indeed, the government never charged this, as the prosecutor made clear after defense counsel had objected to this part of the charge during the colloquy which followed the completion of the judge’s charge. What the prosecutor then said makes it clear that the language could be and must have been construed to mean that the government was charging Birnbaum with being a corrupt man:
“I would also suggest that your Hon- or might consider Mr. Bauman’s exception with regard to your Hon- or’s statement to the contention that Birnbaum was up to his ears in corruption. A fair reading would indicate to the jury that the government is charging corruption only with respect to the particular charge mentioned in the indictment. We are not making a broad allegation of corruption. That is crystal clear in the charge as it exists now, but if your Honor wishes more precisely to define that to the jury, the government would have no objection. In other words, to say to the jury that the only charge of corruption being made is the corruption charged in the indictment. That would clean up any other implications which the jury might read from your Honor’s charge, that maybe the government is charging corruption in other areas. If your Honor wants to pinpoint that to the jury, the government would have no objection, although I will say the government thinks that fact is clear from the total charge by the court.”
Although the trial judge himself commented that the prosecutor “seems to think the expression might be misleading” and although he then took a brief recess “so I can go over it in my own mind,” he refused to make any correction whatever.
This portion of the charge was immediately followed by further argument by the court which was confusing if not irrelevant in its reference to a letter Birnbaum sent to Leonhardt asking for a fee:
“Is this from a man who has reason to believe that the fellow to whom he sent the letter got something on him? I only mention this to have you closely examine the evidence, including the exhibits. Of course, those letters could have been sent and the relationship between the two, as accountant and client, may have been for the purposes of appearance so that people wouldn’t judge what is going on between them. But you’ve got to weigh these things.”
Birnbaum further points out that the trial judge placed undue emphasis upon the October 1961 incident where it was conceded that Leonhardt, then cooperating fully with the F.B.I., went to Simon and paid him $1,250 in cash. The judge admitted this evidence under our holding on the first appeal that the evidence could be received in the discretion of the trial judge but only on the question whether in fact, the conspiracy charged had been in existence in 1957 and 1958. Judge Murphy in his charge to the first jury merely mentioned this incident as an alleged overt act. Despite the fact that we had pointed out the very limited purpose for which the evidence should be received, Judge Cooper referred to the incident on four occasions, in a manner which must have had the effect of injecting it into *268the case against Birnbaum for all purposes. In view of the very tenuous and limited nature of this evidence I think it was an abuse of the judge’s discretion to make these repeated references.
The last three references to the 1961 incident were wholly unnecessary. Thus the second reference was stated as a mere reminder: “You will remember, for example, that I have instructed you that you máy not consider as evidence of defendant’s membership in the conspiracy the stipulated fact that in 1961 money passed between Leonhardt and Simon out of the presence of the defendant.”
Nor was there any need to refer to the 1961 incident in the discussion of the overt acts, especially as the government on this second trial was not relying upon this overt act. Nevertheless, the trial judge again mentioned it in these words:
“Now the government here is not relying on the second alleged act — the passage of money in October 1961 — as an overt act in furtherance of the conspiracy. Rather it is maintaining only that proof of this act is one item of evidence, the passing of money in 1961 was just one act among others, going to the issue of whether in 1957 a conspiracy to bribe Simon did come into existence, not whether there was a conspiracy in 1961, but you may consider the passage of money in 1961, which is conceded took place in the absence of the defendant, you may take that into consideration in your assessment of the total evidence relating to the conspiracy back in 1957 and 1958. In other words, you may consider it as some evidence of the original conspiracy.”
And later, among a number of disconnected and wholly unnecessary comments, toward the end of his long charge, in suggesting “some of the things which you should consider,” the first on the list was the 1961 incident, without any explanation of its limited relevance:
“A few comments about the passage of money in 1961. What was it? Was it an innocent act, perhaps involving repayment by Leonhardt to Simon of a legitimate debt? Was it a part or whole of a bribe from Leonhardt to Simon, separate and apart from the schemes charged in this, indictment, perhaps reflecting the concern Leonhardt had for the Denver audits ? Was it a payment deferred from what Leonhardt owed Simon on the bribe for the 1957-1958 scheme? Was it a tainted payment for other matters not disclosed upon the record ?”
Placed as it was as the first on the list of matters to be considered in this further summation of the evidence regarding Birnbaum’s guilt on both counts, the judge threw it in for'consideration on the whole case. Furthermore, what was the jury to think when the judge asked the question, “Was it a tainted payment for other matters not disclosed upon the record ?” Did this imply participation by Birnbaum in the payment? After the charge was finally ended, counsel took exception to the court’s “repeated references to the passage of money in 1961,” all to no avail.
No matter how overwhelming the proof may seem to the trial judge, or to the appellate court which later passes on the case, the trial judge must keep his role of an impartial arbiter. If he is to give a balanced charge which will instruct the jury so that their role is clarified and the issues are suitably simplified, he is well advised to limit his comments on the evidence. The issues. here were simple enough and could have been simply stated. These same issues were treated by Judge Murphy in the first trial in a brief and succinct charge. Here the trial judge stepped out of his role and was carried away by his advocacy into remarks which obviously were as extemporaneous as they were unnecessary. In many respects his arguments went beyond those of the prosecution and misstated the claims of the government. There can.be no fair trial where the trial judge so abuses his power and puts his great and unquestioned influence in the scales against the defendant. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933).
Where the judge’s charge contains so many irrelevant and improper arguments *269which clearly are prejudicial to the defendant we cannot say that the defendant has been fairly tried. In such a case the verdict should be set aside. It matters not how guilty the defendant may be nor how many juries have said so. The proceedings are tainted and should not stand.
. On appeal, this court sustained one of the two objections to Judge Murphy’s charge, dealing with the appraisal of character evidence, 337 F.2d at 498-99, and the trial court had the benefit of this ruling in framing its charge.