Brian Waterman v. McKinney Indep School District , 642 F. App'x 363 ( 2016 )


Menu:
  •      Case: 15-40458      Document: 00513432889         Page: 1    Date Filed: 03/22/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 15-40458                       United States Court of Appeals
    Fifth Circuit
    FILED
    BRIAN WATERMAN,                                                           March 22, 2016
    Lyle W. Cayce
    Plaintiff - Appellant                                             Clerk
    v.
    MCKINNEY INDEPENDENT SCHOOL DISTRICT,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:13-CV-170
    Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
    PER CURIAM:*
    The McKinney Independent School District (“MISD”) chose not to renew
    Plaintiff-Appellant Brian Waterman’s teaching contract due to allegations that
    he behaved inappropriately toward his coworkers. Waterman sued MISD,
    contending that his non-renewal was retaliation for exercising his First
    Amendment rights to report certain of MISD’s practices.                   After the jury
    returned a verdict in favor of MISD, Waterman moved for a new trial,
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40458       Document: 00513432889     Page: 2   Date Filed: 03/22/2016
    No. 15-40458
    asserting, inter alia, that the district court deprived him of a fair trial. The
    district court denied Waterman’s motion for a new trial. Finding no reversible
    error in the district court’s pretrial and evidentiary rulings or in its conduct of
    the trial, we AFFIRM.
    I.
    During the 2010-2011 school year, Waterman taught at MISD’s Collin
    County Juvenile Center, County Residential Center (the “CRC”), a juvenile
    detention facility.     Minors incarcerated at the CRC are taught by MISD
    teachers in common areas outside the jail cells called “pods.” In February 2011,
    one of Waterman’s coworkers, Natasha Knapton, filed a sexual harassment
    complaint against Waterman with the CRC’s principal, Cynthia Morton.
    According to the complaint, on February 18, 2011, Waterman brought Knapton
    to a pod where he was teaching an all-male class and allowed the class to make
    sexually    offensive   comments.      Knapton     complained    that Waterman
    participated in the behavior and that she felt embarrassed and uncomfortable.
    Pursuant to MISD policy, Morton investigated Knapton’s complaint.
    As part of the investigation, Morton interviewed Knapton and Waterman
    and received statements from both employees. Morton also reviewed a video
    recording of the incident and took statements from other witnesses. Based on
    her investigation, Morton determined that Waterman had harassed his
    coworkers and provided these findings to Dr. Jay Davis, MISD’s Chief Human
    Resources Officer and Title IX Coordinator.
    Davis performed a follow-up investigation, during which Waterman was
    placed on paid administrative leave. At the conclusion of the investigation,
    Davis    agreed   with    Morton’s    findings   and   recommended      to   MISD
    Superintendent Dr. J.D. Kennedy that Waterman’s contract not be renewed.
    Kennedy accepted Davis’s conclusion and recommended Waterman’s non-
    renewal to the MISD Board of Trustees (the “Board”). After being notified of
    2
    Case: 15-40458        Document: 00513432889        Page: 3    Date Filed: 03/22/2016
    No. 15-40458
    the Board’s intent to non-renew his contract, Waterman appealed the proposed
    non-renewal under Section 21.207 of the Texas Education Code. Pursuant to
    this provision, Waterman received an evidentiary hearing before the Board. 1
    After the hearing, the Board voted to non-renew Waterman’s contract.
    Waterman appealed this decision to the Texas Commissioner of Education,
    who affirmed the non-renewal.
    At some point prior to the incident in the pod, Waterman reported the
    following improper practices at the CRC to Morton: (1) “social grading” of the
    CRC’s GED students without testing; (2) inflation of student enrollment to
    receive increased funding; (3) deprivation of unencumbered lunch periods; and
    (4) mishandling of the Teacher of the Year Award. Waterman contends that
    his non-renewal was actually based on these previous reports rather than the
    purported harassment.
    Waterman filed suit against MISD, asserting § 1983 claims under the
    First, Ninth, and Fourteenth Amendments. After MISD moved to dismiss the
    complaint under Rule 12(b)(6), the magistrate judge recommended that
    Waterman’s Ninth and Fourteenth Amendment claims be dismissed. The
    district court adopted this recommendation, leaving only Waterman’s First
    Amendment claim. The case proceeded to a jury trial. After the final pretrial
    conference, Waterman sought leave to amend his complaint to add a
    Fourteenth Amendment liberty interest claim. The district court denied leave
    to amend. A three-day trial resulted in a jury verdict in favor of MISD.
    Waterman moved for a new trial, and the district court denied the motion.
    Waterman now appeals, bringing a laundry list of challenges to the
    denial of his motion for a new trial, including that the district court (1) erred
    1   Waterman’s counsel was unable to attend the hearing and participated by phone.
    3
    Case: 15-40458    Document: 00513432889     Page: 4   Date Filed: 03/22/2016
    No. 15-40458
    in denying leave to amend the complaint, (2) erroneously excluded relevant
    evidence, and (3) deprived him of a fair trial through biased conduct.
    II.
    Waterman’s first asserted ground for a new trial is that he should have
    been allowed leave to amend his complaint to add a Fourteenth Amendment
    liberty interest claim. We review the district court’s denial of a motion to
    amend the complaint for abuse of discretion. Cambridge Toxicology Grp. v.
    Exnicios, 
    495 F.3d 169
    , 177 (5th Cir. 2007). Generally, “a district court does
    not abuse its discretion by refusing to allow an eleventh-hour amendment.”
    Hypes ex rel. Hypes v. First Commerce Corp., 
    134 F.3d 721
    , 728 (5th Cir. 1998).
    The district court did not abuse its discretion in denying Waterman leave
    to amend the complaint. The court’s scheduling order set December 24, 2013,
    as the deadline for Waterman to file amended pleadings. Nevertheless, on
    September 28, 2014, just two days before jury selection was to begin,
    Waterman sought leave to amend his complaint to assert a liberty interest
    claim. Waterman did not attempt to add this claim until nearly nine months
    after the amendment deadline had passed. This delay is inexcusable, as he
    could have asserted the claim much earlier: Waterman’s liberty interest claim
    is that he was deprived of a meaningful name-clearing hearing, an argument
    that he raised in replying to MISD’s motion for summary judgment on March
    31, 2014. Waterman fails to explain why he waited nearly six months after
    presenting the argument—and until the eve of trial—to attempt to add the
    claim. Waterman’s delay and the close proximity to the trial date justified
    refusing the amendment. See Banc One Capital Partners Corp. v. Kneipper,
    
    67 F.3d 1187
    , 1199–1200 (5th Cir. 1995) (finding no abuse of discretion in
    district court’s refusal to allow an amendment sought ten months after the
    amendment deadline, particularly where the new issue could have been
    discovered and asserted earlier); see also Hypes, 134 F.3d at 728.
    4
    Case: 15-40458     Document: 00513432889     Page: 5   Date Filed: 03/22/2016
    No. 15-40458
    Waterman also argues that Rule 15(a)’s liberal standard should apply
    where leave to amend is sought before the entry of any pretrial orders. We
    similarly reject this contention. As we have previously explained, Rule 16(b),
    rather than Rule 15(a), “governs amendment of pleadings after the expiration
    of a scheduling order deadline and requires a showing of good cause to amend
    the order.” Cambridge Toxicology Grp., 
    495 F.3d at 177
    . Thus, “[a]s to post-
    deadline amendment, a party must show good cause for not meeting the
    deadline before the more liberal standard of Rule 15(a) will apply to the district
    court’s denial of leave to amend.” Fahim v. Marriott Hotel Servs., Inc., 
    551 F.3d 344
    , 348 (5th Cir. 2008) (citation and internal quotation marks omitted).
    Waterman cannot show good cause: he waited until the eve of trial and offered
    no explanation for his failure to amend earlier. The district court thus did not
    abuse its discretion in refusing the amendment. See 
    id.
     (finding no abuse of
    discretion in denying amendment where plaintiff, inter alia, “offered no
    explanation for her untimely request”).
    The district court did not abuse its discretion in denying Waterman’s
    motion for a new trial on this basis.
    III.
    Waterman next contends that he is entitled to a new trial because (1) the
    district court improperly excluded admissible evidence, and (2) the district
    court’s purported bias and partiality deprived him of a fair trial. We disagree.
    A.
    We turn first to Waterman’s evidentiary challenges, where he largely
    asserts that the district court erred in granting a number of MISD’s motions
    in limine and in excluding relevant evidence.         “Generally, any error in
    admitting or excluding evidence is not grounds for a new trial.” Baisden v. I’m
    Ready Prods., Inc., 
    693 F.3d 491
    , 508 (5th Cir. 2012) (citing Fed. R. Civ. P. 61).
    5
    Case: 15-40458        Document: 00513432889           Page: 6     Date Filed: 03/22/2016
    No. 15-40458
    “We review the admission or exclusion of evidence for abuse of discretion.” 2 
    Id.
    Even if the district court’s evidentiary ruling is an abuse of discretion, it is
    subject to harmless error analysis and does not justify reversal “unless it
    affected substantial rights of the complaining party.” 
    Id.
     (citation and internal
    quotation marks omitted). “A ruling has affected the substantial rights of the
    party if, when considering all of the evidence presented at trial, the ruling had
    a substantial effect on the outcome of the trial.” U.S. Bank Nat’l Ass’n v.
    Verizon Commc’ns, Inc., 
    761 F.3d 409
    , 430 (5th Cir. 2014). Similarly, “[t]he
    grant or denial of a motion in limine is considered discretionary, and thus will
    be reversed only for an abuse of discretion and a showing of prejudice.” Hesling
    v. CSX Transp., Inc., 
    396 F.3d 632
    , 643 (5th Cir. 2005).
    1.
    We begin with the challenged evidence regarding Knapton. Waterman
    first contends that the district court erred in excluding evidence of a video of
    CRC students produced by Knapton that was posted on YouTube and shown
    at the Teacher of the Year Ceremony, because the evidence was relevant to
    show Knapton received preferential treatment. But, of course, “even relevant
    evidence ‘may be excluded if its probative value is substantially outweighed by
    the danger of unfair prejudice, confusion of the issues, or misleading the jury.’”
    United States v. Jackson, 
    549 F.3d 963
    , 978 (5th Cir. 2008) (quoting Fed. R.
    Evid. 403). Here, the district court, noting that the video was made after
    Knapton’s internal complaint, found that its “minor” probative value was
    outweighed by the danger of confusing the issues and misleading the jury. We
    cannot say that this was an abuse of discretion.
    2 MISD’s argument that Waterman failed to preserve any challenges to the motions
    in limine by making no offer of proof at trial is meritless. A pretrial objection is sufficient to
    preserve error for appellate review so long as the court rules definitively on the record. See
    United States v. Lewis, 
    796 F.3d 543
    , 545 n.6 (5th Cir. 2015) (citing Fed. R. Evid. 103(b)).
    6
    Case: 15-40458    Document: 00513432889     Page: 7   Date Filed: 03/22/2016
    No. 15-40458
    Waterman next argues that the district court erred in granting MISD’s
    motion in limine excluding evidence that Knapton allowed “contraband such
    as magic markers in the POD area of the CRC,” because such evidence is
    relevant to a pretext inquiry and shows MISD’s failure to discipline other
    employees. See Khalfani v. Balfour Beatty Cmtys., L.L.C., 595 F. App’x 363,
    367 (5th Cir. 2014) (noting that “differential treatment of similarly-situated
    employees can show pretext”). This argument is without merit. First, the
    district court required Waterman to show, outside the presence of the jury, how
    Knapton’s alleged behavior was similar conduct of a similarly situated
    employee. Waterman made no such attempt at trial. Second, Waterman still
    fails to explain how he and Knapton were similarly situated employees and
    thus has failed to show the relevance of the evidence. See Toronka v. Cont’l
    Airlines, Inc., 411 F. App’x 719, 723 (5th Cir. 2011) (“That employees’
    situations must be nearly identical means, inter alia, that the misconduct they
    engaged in must be nearly identical.”). The district court did not abuse its
    discretion in granting this motion in limine.
    Waterman’s next assertion is that the district court committed reversible
    error in granting MISD’s motion in limine to exclude evidence that Knapton
    used foul language. This contention fails to clear a similar hurdle. In granting
    MISD’s motion, the district court stated that Waterman would need to explain
    at trial, outside the presence of the jury, how the evidence was relevant.
    Because Waterman did not attempt to make this showing at trial, he cannot
    show that the grant of the motion in limine prejudiced him. See Hesling, 
    396 F.3d at
    643–44.
    Finally, Waterman challenges the district court’s exclusion of any
    hearsay statements about “what others have heard or said about
    Knapton . . . unless some exception to the rules can be shown outside the
    presence of the jury.” Waterman’s apparent contention is that this evidence
    7
    Case: 15-40458     Document: 00513432889     Page: 8   Date Filed: 03/22/2016
    No. 15-40458
    was admissible to attack Knapton’s character for truthfulness and to show that
    she was not actually upset by the CRC students’ sexually offensive comments
    in the pod. First, the district court did not abuse its discretion in excluding
    hearsay statements that suggest that Knapton was not sensitive to
    inappropriate comments.      More importantly, however, Waterman was not
    prevented from otherwise introducing proper reputation or opinion testimony
    to undermine Knapton’s character for truthfulness. Rather, the district court’s
    ruling was premised on the fact that Waterman could not rely on hearsay
    statements suggesting sexual predisposition to impeach Knapton’s character.
    This exclusion was proper. See Fed. R. Evid. 412.
    2.
    We turn next to the challenged evidence regarding Morton. Waterman
    contends that he should have been allowed to attack Morton’s credibility
    through evidence that she committed three previous policy violations: (1)
    failure to list her termination from another school district on her MISD
    employment application; (2) appointment of administrative interns without
    proper authority; and (3) authorization of the YouTube video produced by
    Knapton, allegedly in contravention of district policy.
    Waterman first asserts that he sought to introduce the evidence of past
    policy violations to show that Morton’s current investigation of Waterman was
    incomplete or otherwise false. However, character evidence is inadmissible to
    show that a person acted in accordance with that character on a particular
    occasion. See Fed. R. Evid. 404(a)(1). In addition, “[e]vidence of a crime, wrong,
    or other act is not admissible to prove a person’s character in order to show
    that on a particular occasion the person acted in accordance with the
    character.” Fed. R. Evid. 404(b)(1). The district court determined that this
    evidence was offered to show that Morton’s past violations showed that she
    might have violated policies in dealing with Waterman. Because Waterman
    8
    Case: 15-40458       Document: 00513432889          Page: 9     Date Filed: 03/22/2016
    No. 15-40458
    apparently offered this evidence to show Morton’s propensity to violate policies,
    the district court did not abuse its discretion in excluding the evidence under
    Rule 404. 3
    Second, to the extent Waterman sought to offer Morton’s past violations
    to attack her credibility, the evidence is properly characterized as relevant to
    her character for truthfulness. See United States v. Poole, 
    735 F.3d 269
    , 278
    (5th Cir. 2013) (noting that because party was a witness at trial, “his character
    for truthfulness . . . was at issue”).          “Rule 608(b) applies when extrinsic
    evidence is offered to impeach a witness, to show the character of the witness
    for untruthfulness.” United States v. Morgan, 
    505 F.3d 332
    , 339 (5th Cir. 2007)
    (citation and internal quotation marks omitted). This rule “permit[s] inquiry
    on cross examination into specific instances of conduct which may bear on a
    witness’ credibility in order to impeach the credibility of the witness.” United
    States v. Skelton, 
    514 F.3d 433
    , 443–44 (5th Cir. 2008) (citation and internal
    quotation marks omitted) (alteration in original).               “The district court has
    substantial discretion in determining the admissibility of impeachment
    evidence under Rule 608(b).” 
    Id. at 444
    .
    The district court did not abuse its discretion in refusing to permit
    questioning about Morton’s appointment of interns or her allowance of
    Knapton to produce the YouTube video. “Rule 608(b) authorizes inquiry only
    into instances of misconduct that are clearly probative of truthfulness or
    untruthfulness, such as perjury, fraud, swindling, forgery, bribery, and
    3 To some extent, Waterman suggests that Morton’s past violations show retaliatory
    motive. Rule 404(b) applies when extrinsic evidence is offered “as relevant to an issue in the
    case,” such as motive. United States v. Morgan, 
    505 F.3d 332
    , 339 (5th Cir. 2007) (citation
    omitted). This court applies a two-prong test for the admissibility of extrinsic evidence under
    Rule 404(b), first asking whether the evidence is relevant for a non-character purpose and
    then determining whether its probative value is substantially outweighed by its prejudicial
    effect. 
    Id.
     Waterman fails to explain how any of Morton’s past violations of district policy
    are relevant to her motive for firing him for reporting unrelated misconduct.
    9
    Case: 15-40458     Document: 00513432889      Page: 10   Date Filed: 03/22/2016
    No. 15-40458
    embezzlement.” United States v. Heard, 
    709 F.3d 413
    , 433 (5th Cir. 2013)
    (citation and internal quotation marks omitted). In Heard, we held that the
    witness’s prior conduct was “nothing like perjury, fraud, swindling, forgery,
    bribery, or embezzlement” and thus was “not clearly probative of truthfulness
    or untruthfulness.” 
    Id.
     The complained-of conduct here—appointing interns
    without authority or allowing Knapton to produce the video—is not “clearly
    probative” of Morton’s truthfulness or untruthfulness; any such questioning
    was not permitted under Rule 608. See 
    id.
    Waterman finally argues that the district court erred in not allowing him
    to question Morton about her failure to disclose her prior termination on her
    MISD employment application. See E.E.O.C. v. Bobrich Enters., No. 08-10162,
    
    2009 WL 577728
    , at *3–4 (5th Cir. Mar. 6, 2009) (suggesting that job-
    application-misrepresentation evidence is proper impeachment testimony
    under Rule 608 but finding no abuse of discretion in its exclusion under Rule
    403). Even if this exclusion was error, it did not have “a substantial effect on
    the outcome of the trial.” Verizon Commc’ns, 761 F.3d at 430. This was not a
    case decided on sparse evidence. Instead, the trial record is replete with
    evidence; much of it suggests that Waterman behaved inappropriately and
    made some of his coworkers feel uncomfortable and file complaints. We are
    unconvinced that Waterman’s inability to ask Morton about her employment
    application substantially affected the trial.
    Waterman’s evidentiary challenges do not merit a new trial.
    B.
    Finally, we address Waterman’s contention that the district judge’s
    conduct deprived him of a fair trial. Reviewing the record as a whole, we
    discern no prejudicial error.
    “In a trial by jury in a federal court, the judge is not a mere moderator,
    but is the governor of the trial for the purpose of assuring its proper
    10
    Case: 15-40458     Document: 00513432889     Page: 11   Date Filed: 03/22/2016
    No. 15-40458
    conduct . . . .” United States v. Jefferson, 
    258 F.3d 405
    , 411–12 (5th Cir. 2001)
    (citation and internal quotation marks omitted). The district judge “has the
    right and the duty to comment on the evidence to ensure a fair trial” and must
    “act when necessary to ensure that the trial is properly conducted and not
    subject to delay.” Johnson v. Helmerich & Payne, Inc., 
    892 F.2d 422
    , 425 (5th
    Cir. 1990) (citations and internal quotation marks omitted). “The trial judge
    must, of course, exercise these powers in a reasonable manner by maintaining
    his objectivity and neutrality.” 
    Id.
     The trial judge’s conduct “is measured
    against a standard of fairness and impartiality.” 
    Id.
     (citation and internal
    quotation marks omitted).
    “In reviewing a claim that the trial court appeared partial, this court
    must determine whether the judge’s behavior was so prejudicial that it denied
    the [complaining party] a fair, as opposed to a perfect, trial.” Rodriguez v.
    Riddell Sports, Inc., 
    242 F.3d 567
    , 579 (5th Cir. 2001) (citation and internal
    quotation marks omitted). “Our review of the trial court’s actions must be
    based on the entire trial record.” 
    Id.
     (citation and quotation marks omitted).
    “A trial judge’s comments or questions are placed in the proper context by
    viewing the ‘totality of the circumstances, considering factors such as the
    context of the remark, the person to whom it is directed, and the presence of
    curative instructions.’” 
    Id.
     (quoting United States v. Saenz, 
    134 F.3d 697
    , 702
    (5th Cir. 1998)). “The totality of the circumstances must show that the trial
    judge’s intervention was quantitatively and qualitatively substantial.” 
    Id.
    (quoting Saenz, 
    134 F.3d at 702
    ).
    Waterman did not object at trial, so our review is for plain error. See
    United States v. Lankford, 
    196 F.3d 563
    , 572 (5th Cir. 1999) (noting that where
    “no objections were raised at trial, we review challenges to judicial conduct for
    plain error”); see also Helmerich & Payne, 
    892 F.2d at
    425–26 (applying plain
    error review to judicial-bias challenge).
    11
    Case: 15-40458    Document: 00513432889       Page: 12   Date Filed: 03/22/2016
    No. 15-40458
    1.
    We begin here with Waterman’s challenge to what he describes as the
    district judge’s “arbitrary dismissal” of witnesses, which he contends merits a
    new trial.    In particular, Waterman points to two instances involving
    coworkers he called as witnesses: (1) the district court’s decision not to allow
    redirect examination of Karen Strickland, and (2) the dismissal of Tammy
    Reiter after the attorneys returned from a recess one minute late. With regard
    to preventing redirect examination of Strickland, the district judge has
    “reasonable control over the mode and order of examining witnesses and
    presenting evidence.” Fed. R. Evid. 611(a). The district judge’s disallowance
    of redirect examination was in his discretion, and regardless, Waterman does
    not explain how he was prejudiced by the ruling. See United States v. Martinez,
    
    151 F.3d 384
    , 390 (5th Cir. 1998) (“In order to show an abuse of discretion
    related to the limitations placed on cross-examination, a defendant must show
    that those limitations were clearly prejudicial.”).
    In reviewing this record, we similarly conclude that the dismissal of
    Reiter does not rise to the level of reversible error. Reiter had already testified
    that she did not feel that Waterman sexually harassed her and that she had
    not been interviewed by Morton or Davis. But, over the course of the three-
    day trial, the jury heard extensive evidence about the relevant incident and its
    effect on at least two other teachers. The jury did not need to base its verdict
    on whether all three teachers felt harassed. Moreover, Waterman made no
    offer of proof at trial—and fails to explain now—as to what further testimony
    he wished to elicit from Reiter.
    2.
    We finally address the comments by the district judge that Waterman
    asserts prejudiced him in front of the jury and deprived him of a fair trial.
    12
    Case: 15-40458     Document: 00513432889     Page: 13   Date Filed: 03/22/2016
    No. 15-40458
    Waterman points out that the district judge, at the final pretrial hearing,
    stated: “I’m not as old as you are but I did grow up in the days of trial by
    ambush . . . .” Next, Waterman posits that the ethnicity of his associate “may
    have prompted” the district judge to tell the jury about how the judge had been
    “raised in a country that did not have jury trials.” Finally, Waterman asserts
    that the district court improperly accused him of “trying to poison the jury” and
    “staring” at him. None of these claimed “errors” justify reversal. The district
    judge’s trial by ambush comment was made at a pretrial conference and thus
    could not have prejudiced Waterman before the jury. As to the district judge’s
    comment about having grown up in a country without juries, only Waterman’s
    speculation suggests anything objectionable. We refuse to infer any prejudice
    based on such speculation. The district judge’s other challenged comments
    (e.g., “poisoning the jury”), when viewed in the context of the trial record, do
    not rise to the level of reversible error.     By the time of the challenged
    statements, the district judge had already warned Waterman’s counsel several
    times against injecting excluded evidence into the jury’s mind or had otherwise
    explained what type of questioning was impermissible.              As we have
    emphasized before, “[f]ederal judges have wide discretion with respect to the
    tone and tempo of proceedings before them; they are not mere moderators or
    hosts at a symposium.” United States v. Adkins, 
    741 F.2d 744
    , 747 (5th Cir.
    1984) (citation and internal quotation marks omitted). The district court acted
    within its discretion to exercise control over the proceedings.
    Waterman’s final challenge is that the district court improperly
    commented on the evidence at trial.         Knapton complained that, in the
    underlying events in the pod, students asked her if she liked “blow jobs.”
    Waterman contends that the district court erred by remarking that the “blow
    job comment” was not at issue. This argument misstates the proceedings. In
    the challenged exchange, Waterman’s counsel asked the witness: “Did you ask
    13
    Case: 15-40458       Document: 00513432889     Page: 14   Date Filed: 03/22/2016
    No. 15-40458
    her, ‘Well, what did you do when [the student] told you that?’ Did you ask her
    that?”   The district judge then asked if the evidence established that the
    student made the comment as opposed to the comment being shouted across
    the room. We are satisfied that the district court’s comment fell within its wide
    discretion to “elicit facts not yet adduced or clarify those previously presented.”
    Rodriguez, 
    242 F.3d at 579
    ; see also Helmerich & Payne, 
    892 F.2d at 425
    (noting the district judge’s “right and . . . duty to comment on the evidence to
    ensure a fair trial”).
    Regardless, any potential prejudice from the district court’s statements
    or comments was sufficiently alleviated by the numerous curative instructions.
    In Helmerich & Payne, we held, in the context of a judicial-bias claim, that
    “[a]ny potential prejudice . . . was adequately cured by the trial court’s
    instructions to the jury both at the beginning and at the end of the trial to
    ignore his comments and to be the sole judge of the facts.” 
    892 F.2d at 426
    .
    Here, the district judge reminded the jury throughout the trial (not just at the
    beginning and end) that they were the sole judges of the facts and should not
    draw any conclusions about the case from his statements. Though limiting
    instructions do not always cure prejudice, the instructions here were sufficient.
    See United States v. Williams, 
    809 F.2d 1072
    , 1088–89 (5th Cir. 1987)
    (recognizing the importance of “clear and repeated instructions” in evaluating
    a claim that a trial was biased).
    In sum, our thorough review of the record fails to reveal the type of
    systematic bias that would satisfy our rigorous plain-error standard.           See
    Rodriguez, 
    242 F.3d at
    579–80. We conclude that Waterman was not deprived
    of a fair trial.
    AFFIRMED.
    14