District court judge erred by stating belief that witness bank employee intended to misapply bank funds

EVIDENCE/SENTENCING United States v. Nikl, No. 04-3499, ___ F.3d ___ (10th Cir. Nov. 1, 2005)(Kansas). Appeal of conviction and sentence for aiding and abetting bank employee in misapplication of bank funds in violation of 18 U.S.C. §§ 656 and 2. HELD: (1) Where intent element of defendant’s charged offense of aiding and abetting bank employee in misapplication of bank funds depended on intent of bank employee witness, district court judge committed prejudicial error in violation of Rule 605 of Federal Rules of Evidence when he interjected his own comments indicating that he would have not have accepted witness’s guilty plea if he was not convinced by her during plea hearing that she intended to misapply bank funds. (2) District court’s mandatory application of federal sentencing guidelines was non-constitutional Booker error requiring remand where judge sentenced defendant at bottom of applicable guideline range but gave no indication of whether he would have given same or lower sentence if guidelines were discretionary. Read the opinion here.