United States v. Hernandez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40815

UNITED STATES OF AMERICA Plaintiff - Appellee

v

FERNANDO HERNANDEZ Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-3-1 -------------------- July 10, 2001

Before KING, Chief Judge, BARKSDALE, Circuit Judge and NOWLIN,* District Judge.

PER CURIAM:**

Defendant-Appellant Fernando Hernandez appeals his

conviction on one count of conspiracy to possess with intent to

distribute marijuana in violation of 21 U.S.C. § 846 and one

count of aiding and abetting possession with intent to distribute

approximately 37.27 kilograms of marijuana in violation of 21

U.S.C. §§ 841(a)(1)and (b)(1)(D) and 18 U.S.C. § 2.

* Chief Judge of the Western District of Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Hernandez claims that he was denied a fair trial because the

district court commented during voir dire about the seriousness

of drug crimes in general and improperly compared the quantities

in other marijuana cases with the amount in this case. He argues

that those comments might have led the jury to believe that

Hernandez was a part of a larger drug problem by associating

Hernandez with extraneous offenses committed by others. Since

there was no objection to the district court’s comments at trial,

we review only for plain error. The district court’s questions

were designed to identify any biases or prejudices the potential

jurors might have with respect to this case. The comments were

not error, plain or otherwise.

Hernandez challenges the admission of evidence, including

his oral confessions, resulting from Officer Maze’s traffic stop.

Hernandez failed to file a motion to suppress the evidence as

mandated by Fed.R.Crim.P. 12(b)(3), and therefore, he waived his

right to challenge the fruits of the stop.

Hernandez’s challenge to the jury charge, reviewed here for

plain error, is meritless. The charge given by the district

court sufficiently advised the jury that it must find beyond a

reasonable doubt that Hernandez knowingly and intentionally

committed each of the offenses on which he stands convicted.

Hernandez’s motion for a new trial, which was brought “in

the interest of justice,” and not based on newly discovered

evidence, was untimely.

-2- Hernandez also challenges the sufficiency of the evidence

supporting his conviction for conspiracy to possess with intent

to distribute marijuana. There is more than sufficient evidence

to establish that Hernandez knowingly and voluntarily joined in

an agreement with Isabel Soza and other unidentified individuals

to violate the narcotics laws.

Hernandez challenges the district court’s questions

addressed to Agent Friday. Again, we review for plain error.

Those questions were within the court’s discretion to clarify

evidence and were not so prejudicial as to deprive Hernandez of a

fair trial. Furthermore, the district court twice instructed the

jury that it should not consider the court’s questions during

trial as reflecting an opinion about the case.

Hernandez raises a number of claims of ineffective

assistance of counsel which we do not address on direct appeal.

For the above-stated reasons, Hernandez’s conviction and

sentence are AFFIRMED.

-3-