United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS November 1, 1999 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 97-41505
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAGOBERTO RODRIGUEZ, RENE RODRIQUEZ and RICARDO BLANCO,
Defendants-Appellants.
Appeals from the United States District Court for the Southern District of Texas (M-97-CR-125-1)
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dagoberto Rodriguez (“Dagoberto”), Rene Rodriguez (“Rene”),
and Ricardo Blanco (“Blanco”) (collectively “Appellants”) were
convicted of conspiracy to possess marijuana. In addition, both Rodriguez brothers were found guilty of possession of more than 100
kilograms of marijuana. On appeal, Appellants challenge the
district court’s allegedly excessive and prejudicial intervention
in the questioning of witnesses. Finding no plain error, we
affirm.
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.
On January 6, 1997, Narciso Leo Reyes (“Reyes”) was asked by
the Rodriguez brothers to dig two holes on their ranch. A few days
later on January 12, 1997, after the holes had been filled in,
Reyes investigated those holes and unearthed several bundles of
marijuana. He recovered one of those bundles and allowed his
companion, who had driven him to the ranch, to take a portion of
it. Reyes then returned to town, where he futilely attempted to
sell the marijuana. After these unsuccessful efforts, Reyes
returned to the ranch and reburied the opened bundle. The next
day, unbeknownst to Reyes and the Rodriguez brothers, federal and
Texas agents executed a search warrant on the ranch and seized all
the marijuana in the two holes. A search warrant was reportedly
posted on the property.
That same day, the Rodriguez brothers called Reyes to ask if
he had been out to the ranch. Fearing that they were inquiring
about the marijuana taken by his companion, Reyes denied having
been at the location. For several weeks, Reyes continued to avoid
the Rodriguez brothers’ frequent attempts to speak with him. But
on the evening of February 10, Blanco and two individuals struck
Reyes in the back of the neck with a baseball bat and threw him
into a car trunk as he was returning home. They then transported
Reyes to a place near Rene’s house. There, both Rodriguez brothers
questioned Reyes about the marijuana while Dagoberto and Blanco
punched and kicked him.
2 Afterwards, Reyes was taken to the garage at the house of
Blanco’s mother in La Feria, where Blanco continued to beat and to
interrogate Reyes about the marijuana. At one point, Blanco tied
Reyes to a bunk-bed ladder with duct tape and poured gasoline on
Reyes’s bare feet and set them on fire. The following morning,
Reyes managed to escape and make his way to a nearby schoolyard,
from which he was taken to a hospital for treatment of his numerous
injuries, including his blistered and blackened feet. Noticeably,
he still had duct tape around his head. Later that day, police
officers searching Blanco’s mother’s garage found duct tape on a
bunk-bed ladder, hair on other pieces of used duct tape, and a
gasoline can.
At trial, Blanco gave a different account of the events of
February 10-11. He said that he was at his mother’s house,
drinking beer leftover from his twenty-first birthday party that
weekend, when Reyes was dropped off by someone driving a red car.
Blanco testified that Reyes was obviously high or drunk, as he was
barefoot on a cold night, and asking for money and information
about where he could buy some drugs. Reyes said that he could pay
Blanco back because he had some marijuana that he would be able to
sell. Blanco, however, refused to lend Reyes any money because
Reyes still owed him money for a gold bracelet that Reyes had
bought from him in a bar two months before. Blanco claimed that
this argument over money escalated into a fistfight, that Blanco
knocked Reyes out, and that Blanco dragged Reyes into the garage
and taped his feet to a ladder to keep him from waking up and
3 breaking the windows in Blanco’s mother’s house. Blanco said he
inadvertently knocked over a gas can in this process, but mentioned
nothing about a fire. Later that night, Blanco removed the tape on
Reyes’s feet and covered him with a blanket to let him “sleep it
off.” The next morning, when Blanco awoke and went to the garage,
he saw that Reyes was gone. Thereafter, Blanco called his wife to
say he had spent the night at his mother’s house and was coming
home. A few days after hearing that a warrant was out for his
arrest, Blanco turned himself in, giving a statement that his trial
testimony mirrored.
Despite the conflicting testimony and the limited physical
evidence, the jury found Blanco and the Rodriguez brothers guilty
of the crimes charged. This appeal followed.
II.
Relying primarily on our decision in United States v. Saenz,
134 F.3d 697 (5th Cir. 1998), Appellants argue that the district
court’s frequent and extensive questioning of Reyes and the defense
witnesses prejudiced the jury against them. Because Appellants
failed to object at trial, we review the district court’s
questioning for plain error. See United States v. Cantu, 167 F.3d
198, 202 (5th Cir.), cert. denied, 68 U.S.L.W. 3200 (U.S. Oct. 4,
1999) (No. 98-1928). Plain error exists only if “the district
judge’s actions, viewed as a whole, ... amount to an intervention
that could have led the jury to a predisposition of guilt by
improperly confusing the functions of judge and prosecutor.”
4 Bermea, 30 F.3d at 1569. We must “review the entire record” to
determine whether the district court’s interventions were “‘so
prejudicial’” as to deny the defendants “‘a fair, as opposed to a
perfect, trial.’” Cantu, 167 F.3d at 202 (quoting Bermea, 30 F.3d
at 1569).
A careful examination of the entire record convinces us that
the district court’s questions were not so prejudicial as to
conflate the roles of judge and prosecutor or to deny Appellants a
fair trial. The district court asked extensive questions of Reyes,
the lead government witness, and of Blanco, the only defendant who
testified.2 But many of those interruptions were due to the
government’s and the defense counsel’s inability to lay a proper
foundation for certain testimony, or those interruptions served to
clear up potentially confusing testimony. See United States v.
Bartlett, 633 F.2d 1184, 1188 (5th Cir. Jan. 1981) (“[A] trial
judge may elicit facts not yet adduced or clarify those previously
presented . . . .”). Although in the case of a testifying
defendant “this Court is particularly sensitive to a trial judge’s
questioning,” United States v. Carpenter, 776 F.2d 1291, 1294 (5th
Cir. 1985), we conclude that the district court did not
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS November 1, 1999 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 97-41505
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAGOBERTO RODRIGUEZ, RENE RODRIQUEZ and RICARDO BLANCO,
Defendants-Appellants.
Appeals from the United States District Court for the Southern District of Texas (M-97-CR-125-1)
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dagoberto Rodriguez (“Dagoberto”), Rene Rodriguez (“Rene”),
and Ricardo Blanco (“Blanco”) (collectively “Appellants”) were
convicted of conspiracy to possess marijuana. In addition, both Rodriguez brothers were found guilty of possession of more than 100
kilograms of marijuana. On appeal, Appellants challenge the
district court’s allegedly excessive and prejudicial intervention
in the questioning of witnesses. Finding no plain error, we
affirm.
* 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. I.
On January 6, 1997, Narciso Leo Reyes (“Reyes”) was asked by
the Rodriguez brothers to dig two holes on their ranch. A few days
later on January 12, 1997, after the holes had been filled in,
Reyes investigated those holes and unearthed several bundles of
marijuana. He recovered one of those bundles and allowed his
companion, who had driven him to the ranch, to take a portion of
it. Reyes then returned to town, where he futilely attempted to
sell the marijuana. After these unsuccessful efforts, Reyes
returned to the ranch and reburied the opened bundle. The next
day, unbeknownst to Reyes and the Rodriguez brothers, federal and
Texas agents executed a search warrant on the ranch and seized all
the marijuana in the two holes. A search warrant was reportedly
posted on the property.
That same day, the Rodriguez brothers called Reyes to ask if
he had been out to the ranch. Fearing that they were inquiring
about the marijuana taken by his companion, Reyes denied having
been at the location. For several weeks, Reyes continued to avoid
the Rodriguez brothers’ frequent attempts to speak with him. But
on the evening of February 10, Blanco and two individuals struck
Reyes in the back of the neck with a baseball bat and threw him
into a car trunk as he was returning home. They then transported
Reyes to a place near Rene’s house. There, both Rodriguez brothers
questioned Reyes about the marijuana while Dagoberto and Blanco
punched and kicked him.
2 Afterwards, Reyes was taken to the garage at the house of
Blanco’s mother in La Feria, where Blanco continued to beat and to
interrogate Reyes about the marijuana. At one point, Blanco tied
Reyes to a bunk-bed ladder with duct tape and poured gasoline on
Reyes’s bare feet and set them on fire. The following morning,
Reyes managed to escape and make his way to a nearby schoolyard,
from which he was taken to a hospital for treatment of his numerous
injuries, including his blistered and blackened feet. Noticeably,
he still had duct tape around his head. Later that day, police
officers searching Blanco’s mother’s garage found duct tape on a
bunk-bed ladder, hair on other pieces of used duct tape, and a
gasoline can.
At trial, Blanco gave a different account of the events of
February 10-11. He said that he was at his mother’s house,
drinking beer leftover from his twenty-first birthday party that
weekend, when Reyes was dropped off by someone driving a red car.
Blanco testified that Reyes was obviously high or drunk, as he was
barefoot on a cold night, and asking for money and information
about where he could buy some drugs. Reyes said that he could pay
Blanco back because he had some marijuana that he would be able to
sell. Blanco, however, refused to lend Reyes any money because
Reyes still owed him money for a gold bracelet that Reyes had
bought from him in a bar two months before. Blanco claimed that
this argument over money escalated into a fistfight, that Blanco
knocked Reyes out, and that Blanco dragged Reyes into the garage
and taped his feet to a ladder to keep him from waking up and
3 breaking the windows in Blanco’s mother’s house. Blanco said he
inadvertently knocked over a gas can in this process, but mentioned
nothing about a fire. Later that night, Blanco removed the tape on
Reyes’s feet and covered him with a blanket to let him “sleep it
off.” The next morning, when Blanco awoke and went to the garage,
he saw that Reyes was gone. Thereafter, Blanco called his wife to
say he had spent the night at his mother’s house and was coming
home. A few days after hearing that a warrant was out for his
arrest, Blanco turned himself in, giving a statement that his trial
testimony mirrored.
Despite the conflicting testimony and the limited physical
evidence, the jury found Blanco and the Rodriguez brothers guilty
of the crimes charged. This appeal followed.
II.
Relying primarily on our decision in United States v. Saenz,
134 F.3d 697 (5th Cir. 1998), Appellants argue that the district
court’s frequent and extensive questioning of Reyes and the defense
witnesses prejudiced the jury against them. Because Appellants
failed to object at trial, we review the district court’s
questioning for plain error. See United States v. Cantu, 167 F.3d
198, 202 (5th Cir.), cert. denied, 68 U.S.L.W. 3200 (U.S. Oct. 4,
1999) (No. 98-1928). Plain error exists only if “the district
judge’s actions, viewed as a whole, ... amount to an intervention
that could have led the jury to a predisposition of guilt by
improperly confusing the functions of judge and prosecutor.”
4 Bermea, 30 F.3d at 1569. We must “review the entire record” to
determine whether the district court’s interventions were “‘so
prejudicial’” as to deny the defendants “‘a fair, as opposed to a
perfect, trial.’” Cantu, 167 F.3d at 202 (quoting Bermea, 30 F.3d
at 1569).
A careful examination of the entire record convinces us that
the district court’s questions were not so prejudicial as to
conflate the roles of judge and prosecutor or to deny Appellants a
fair trial. The district court asked extensive questions of Reyes,
the lead government witness, and of Blanco, the only defendant who
testified.2 But many of those interruptions were due to the
government’s and the defense counsel’s inability to lay a proper
foundation for certain testimony, or those interruptions served to
clear up potentially confusing testimony. See United States v.
Bartlett, 633 F.2d 1184, 1188 (5th Cir. Jan. 1981) (“[A] trial
judge may elicit facts not yet adduced or clarify those previously
presented . . . .”). Although in the case of a testifying
defendant “this Court is particularly sensitive to a trial judge’s
questioning,” United States v. Carpenter, 776 F.2d 1291, 1294 (5th
Cir. 1985), we conclude that the district court did not
sufficiently impugn Blanco’s credibility to prejudice the jury.
Where a defendant, as in this case, gave plainly inconsistent
2 Appellants also complain of the district court’s questioning of two defense witnesses: a Mexican newspaper photographer and Pedro Martinez III, a neighbor of Blanco’s mother. The former testified to a collateral matter while, in the case of Martinez, the court merely exercised its discretion to elicit testimony from him. Appellants fail to allege how such questioning strayed from the lines of judicial impartiality.
5 answers, misunderstood several questions, and ultimately was shown
to have a different assumption about what constituted legal divorce
than the judge, the district court had an obligation and a duty to
question the defendant and did not depart from the bounds of
neutrality in its attempts to elucidate the evidence. See
Bartlett, 633 F.2d at 1188. Indeed, the district court’s questions
fell within the scope of its authority to clarify the evidence,
determine admissibility, and explore the possibility of Blanco’s
perjury about his marital status. Unlike Saenz, the district
court’s questions did not make the government’s case for it or
anticipate testimony on elements of the offenses.
Based on a review of the entire record, including the two
instructions to the jury to disregard anything the judge said about
the facts, we find that the judge’s questioning did not lead the
jury to a “predisposition of guilt” and that the district court
committed no plain error.
III.
Appellants raise several other issues relating to the
sufficiency of the evidence to convict Rene and Blanco and to all
Appellants’ sentences. These are meritless. Accordingly,
Appellants’ convictions and sentences are AFFIRMED.