In Beaty this Court was faced with similar allegations against the same trial judge. There this Court pointed out that the trial judge may elicit germane facts through interrogation of witnesses on his own initiative. See also, Riley v. Goodman, supra. The federal judge is more than a "mere moderator" or umpire in the proceeding. See Geders v. United States, 425 U.S. 80, 86-87, 96 S. Ct. 1330, 1334-1335, 47 L. Ed. 2d 592 (1976); United States v. Allsup, 566 F.2d 68, 72 (9th Cir.1977); Nordmann v. National Hotel Co., 425 F.2d 1103, 1109 (5th Cir.1970); Warner v. Transamerica Insurance Co., 739 F.2d 1347, 1351 (8th Cir.1984). However, this role is not without limitations. The trial judge must not "abandon his proper role and assume that of an advocate...." United States v. Beaty, 722 F.2d at 1093; United States v. Green, 544 F.2d 138, 147 (3rd Cir.1976), cert. denied, 430 U.S. 910, 97 S. Ct. 1185, 51 L. Ed. 2d 588 (1977).

While this Court noted that no absolute, rigid rule has been espoused by the Courts concerning the limitations of the trial judge's participation in this manner, United States v. Beaty, 722 F.2d at 1093, the Eighth Circuit Court of Appeals has held that "[i]n order to reverse on grounds of excessive judicial intervention, the record must either 'disclose actual bias on the part of the trial judge (or) leave the reviewing court with an abiding impression that the judge's remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality.' (citation omitted)." Warner v. Transamerica Insurance Co., 739 F.2d at 1351. This Court must view each case on its particular facts and circumstances in resolving allegations of denial of rights as contended here.

Although a few isolated, allegedly prejudicial comments by the trial judge are not sufficient to warrant a reversal, a balancing process must be employed to determine whether the trial judge's comments have pervaded the overall fairness of the proceeding. United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983). There the Eighth Circuit Court of Appeals, Chief Judge Lay writing for that Court, stated "[w]e think the balance is adversely tipped against the defendant in a criminal trial where the judge's role loses its color of neutrality and tends to accentuate and emphasize the prosecution's case." United States v. Bland, 697 F.2d at 265 (footnote omitted).

When unfair judicial procedures result in a denial of due process, reversal is required. Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir.1976). Good faith mistakes of judgment or misapplication of the proper rules of law by the district court are acts which do not reflect great bias on the part of the trial judge. Thus, their occurrence does not mandate reversal. Reserve Mining Co. v. Lord, 529 F.2d at 185. In Reserve Mining Co. the Eighth Circuit held that the trial judge, through extensive examination of witnesses, interspersed with comments on the evidence, by comments on the credibility of the defense witnesses, and by statements in regard to the ability, or lack thereof, of plaintiff's counsel, committed prejudicial error. Further, that Court ruled that "[a] judge best serves the administration of justice by remaining detached from the conflict between the parties." 529 F.2d at 186. By assuming the roles of judge, attorney, and witness in the same proceeding the trial judge abandons the impartiality with which he is charged.

As applied to the conduct of the trial judge in this case, it is apparent that he did overstep the bounds of prudent judicial conduct. Therefore, this Court concludes that the conduct of the trial judge was in error. However, having reviewed the record as a whole, this Court is also of the opinion that the error was not prejudicial to the defendant. The interventions by the trial judge were not so egregious as to justify reversal of the convictions.

Under the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), certain errors that have "little, if any, likelihood of having changed the result of the trial" are deemed harmless, not requiring the automatic reversal of a conviction. 386 U.S. at 22, 87 S.Ct. at 827; United States v. Hasting, 461 U.S. 499, 508, 103 S. Ct. 1974, 1980, 76 L. Ed. 2d 96 (1983).

The government presented overwhelming testimony which clearly supported the jury's verdicts of guilty on each of the three counts charged in the indictment. Furthermore, the record does not reveal, and Wilensky fails to point out any facts which convince this Court that there was actual bias on the part of the trial judge which was conveyed to the jury through the conduct of the trial. The questions and comments of the trial judge, while at times tending to prompt the inexperienced Assistant United States Attorney handling this matter, did not project an appearance of advocacy or partiality by the trial judge.

While Wilensky contends that his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process of law were violated in this proceeding, this Court concludes that, overall, he was afforded a fair trial. Under the Sixth and Fourteenth Amendments a defendant is guaranteed such rights. The record does not reflect and argument of Wilensky fails to persuade this Court that the conduct of the trial fell below the Plimsoll line of fairness or polluted the waters of justice. See United States v. Singer, 710 F.2d 431 (8th Cir.1983) (in banc), dissenting opinion, Henley, Senior Judge, 710 F.2d at 439. Furthermore, the right to a fair trial does not translate into the right to a perfect trial. United States v. Robinson, 635 F.2d 981 (2d Cir.1980). Although this Court believes that the better course would have been to refrain from examination of the witnesses except where absolutely necessary in the search for justice, the Court is not persuaded that the questions posed by the trial judge prejudiced Wilensky in this instance.

In Beaty this Court communicated its disapproval of the manner in which the trial judge intervenes in trials before him. There, this Court reversed the conviction of co-defendant Ballouz for this reason. This Court characterized the trial judge's conduct as "always troublesome." 722 F.2d at 1095. The judge's actions conveyed his skepticism about Ballouz's alibi defense to the jury. While the trial judge here thoroughly questioned the defendant's key witness, Dr. Stillman, the sole witness who might establish Wilensky's insanity defense, this Court fails to find that, as a whole, the questions were of such a character that the trial judge chilled the defense efforts.

Prior to the trial which resulted in his conviction, Wilensky had represented one of the defendants in a criminal action pending before Judge Stern, United States v. Charles Liberto, et al., United States District Court, District of New Jersey, docket number 83-109. The Liberto case involved the narcotics distribution organization that Stewart had implicated in his grand jury testimony, and was specifically mentioned in count II of the indictment returned against Wilensky. In the Liberto case, Judge Stern, upon order of Chief Judge Fisher of the District of New Jersey, was removed as trial judge following the receipt of threats against his safety. Wilensky contends that this removal is sufficient to warrant his recusal in this matter.

Although these two criminal actions are indisputedly connected as each revolves around the narcotics importation investigation and trial, the offenses are significantly separate, with charges in each stemming from different facts and involving separate violations of the law.

The trial judge commented after the granting of a mistrial in the first trial on the defense strategy. He likewise made occasional reference to the development of the facts and the strong evidence of guilt which was being produced by the government in the second trial. Following the trial judge's remarks, counsel for Wilensky made motions for mistrial for personal bias, which motions were denied. However, the comments were made out of the presence of the jury, either at side bar conference or after the jury had been excused for a recess. It cannot be said that the comments cited by Wilensky prejudiced his right, as the jury was afforded no opportunity to be influenced by such conduct.

As previously noted the trial judge's conduct and comments throughout the course of the trial were not in conformity with that which is generally expected in a criminal trial. Such actions cannot be condoned by this Court. However, coupling the overwhelming evidence of guilt, the relatively evenhanded treatment of counsel and his reasonably fair and impartial ruling on evidentiary matters indicates that Wilensky was afforded his rights to a fair and impartial trial.

The decision of whether to recuse from hearing a matter lies within the sound discretion of the trial judge and this Court will not reverse a trial court's denial of a motion to disqualify or recuse unless the trial judge abuses his discretion. United States v. Dalfonso, 707 F.2d 757 (3rd Cir.1983). This Court does not find that under the facts and circumstances of this case the trial judge abused his discretion.

Wilensky contends the trial judge was privy to extrajudicial information and knowledge which was sufficient to warrant disqualification for personal bias. The trial judge presided over the first trial in which the mistrial was granted due to governmental misconduct. Of course, he gained knowledge of the defense to be employed at trial. However, the fact the mistrial was granted does not require an automatic recusal upon retrial. Furthermore, the knowledge was gained while the trial judge was acting in his official judicial capacity. Therefore, the trial judge was not bound to recuse from the trial of the case. See United States v. Kelley, 712 F.2d 884, 889 (1st Cir.1983), citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966).

Having reviewed the record in this proceeding and the record before this Court from the first trial, this Court concludes that Wilensky has failed to demonstrate that the alleged personal bias of the trial judge actually interferred with the conduct of the second trial. A trial judge will predictably reach conclusions on the evidence put before him. Nevertheless, such does not prevent him from affording the defendant a fair and impartial trial.

While this Court finds that the trial judge's conduct in this particular case was not reversible error, this holding is so limited by the facts in the case.

For the foregoing reasons, the jury verdicts of guilty and the denials of the motion for disqualification and the motions for mistrial are affirmed in all respects.