Defendant DeSisto, Frank LoCicero and Joseph Saponaro were indicted for violation of 18 U.S.C. §§ 1951 and 2 by the hijacking оf a truckload of silk piece goods shipped from Japan, while the silk goods were en route from a Brooklyn dock to consignees in New York. Saponaro was also indicted for possessing the stolen goods, 18 U.S.C. §§ 659 and 2. Count One, obstruction of commerce, was dismissed as to Saponaro before trial. DeSisto and LoCicero were tried to thе jury on Count One, Saponaro on Count Two. The court directed a verdict for Saponaro on Count Two, the jury acquitted LoCicero and convicted DeSisto on Count One.
Fine, driver of the hijacked truck, testified that in Brooklyn on Septеmber 1, 1959 a car blocked his way, a man identified by Fine as DeSisto came from the car to the truck, threatened Fine аnd ordered him out, that another man, identified by Fine as LoCicero, with a handkerchief to his face, marched Fine to the car, placed taped glasses on Fine and accompanied him while a third man, not identified, drove to a sеcluded spot where Fine was handcuffed to a tree. Fine’s truck was found later abandoned, empty. The stolen silk was found some days later in a rented Clesto truck in a rented garage. The Clesto truck had been rented *834 on September 1 by DeSisto, as he later claimed, for a friend, not produced, named Joe Storch who desired to move furniture with it.
DeSisto’s dеfense was an alibi, which placed him in a restaurant eating and making a phone call to the Clesto garage during thе time the proof, according to his view of the evidence, showed the holdup to have taken place.
Thе principal grounds on which DeSisto seeks reversal are rulings denying production or introduction of claimed statemеnts of witnesses and excessive participation of the trial judge in the trial. The record on the first point is somewhat confused. Fine had testified that he had seen and adopted a longhand statement prepared by an agent of the F. B. I. After the agent, Miller, had testified that Fine had not adopted any such statement, that no such statement existed and that thе agent’s notes had been destroyed but that their substance was contained in a typewritten paper, Exhibit H for Identificаtion, Fine retracted his earlier testimony that there had been an adopted statement. De-Sisto's counsel unsuccessfully sought to introduce H for Identification under the Jencks statute, 18 U.S.C. § 8500, to show a 3 p. m. time of departure of Fine from the dоck. It cannot be said that H for Identification had been clearly established to be a statement of Fine, admissible within Sеction 3500. It may be that in view of Fine’s original testimony, the court should have found H to be competent secondary evidеnce of a statement adopted by Fine. If its exclusion was error, however, it was not prejudicial, since Fine was аsked on cross examination by appellant’s attorney, who had been furnished H for Identification, what time of departure he had told Agent Miller, and Fine testified that he had told Miller about 3 p. m. Nor is there any showing that the destruction of agents’ nоtes effected a circumvention of Section 3500. Compare United States v. Thomas, 2 Cir., 1960,
During the course of the cross examination on the statement, when defense counsel said in effect that “about 3” does not mean 2:45, the court remarked, “Doesn’t it?” and in the charge emphasized the judge’s recollection that the times testified to were approximations. Of itself perhaps this would not be prejudicial. Takеn together with other instances complained of, as part of the whole, however, it leaves us with the definite impression from the entire record of too great an injection of the trial judge into the conduct of the trial. It does nоt appear that government or defense counsel was lacking in competence, yet the judge at times tоok charge of the questioning of witnesses from the outset of their testimony. See, for example, the testimony of the witnеss Hough for the defense, R. pp. 1490-1571. The same pattern is apparent in the examination of the defendant DeSisto himself. R. pp. 1370-1490, 1573-1577, 1628-1656.
A trial judge in criminal, as in civil cases, may, indeed must, be more than a mere moderator or umpire in a contest between two parties in an arena before him. He should take part where necessary to clarify testimony and assist the jury in understanding the evidence and its task of weighing it in the resolution of issues of fact. United States v. Curcio, 2 Cir.,