United States v. Avalos ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50036
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIRA AVALOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CR-1553-2-H
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October 23, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Elvira Avalos (“Elvira”) appeals her conviction for one
count of conspiracy to possess and one count of possession with
the intent to distribute an unspecified quantity of marijuana, in
violation of 21 U.S.C. §§ 846 & 841(a)(1). She contends that the
district court’s questioning of her and Loraine Avalos, the only
other favorable witness to her during trial, demonstrated a lack
of impartiality and denied her a fair trial. Because Avalos
raises this issue for the first time on direct appeal, our review
*
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that this opinion should not be published and is not precedent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.
No. 00-50036
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is limited to plain error only. See United States v. Saenz, 134
F.3d 697, 701 (5th Cir. 1998).
A federal judge need not act merely as a moderator of the
proceedings. United States v. Moore, 598 F.2d 439, 442 (5th Cir.
1979). The district judge may comment on the evidence, clarify
facts presented, maintain the pace of the parties, and interrupt
the parties. Id. The trial transcript shows that the district
court interrupted Loraine Avalos’ direct testimony seven times
and at no time during cross, redirect, or recross examinations.
These interruptions amounted to 42 lines out of 782 lines (or
nine percent) of her testimony, and, therefore, were not
quantitatively substantial. See Saenz, 134 F.3d at 704 n.3.
Although the district court admonished Loraine Avalos to be
forthcoming in her responses to the government’s questions, it is
not error for a judge to comment on the evidence. See Moore, 598
F.2d at 442. The defendant has not demonstrated clear or obvious
error in the district court’s questioning of Loraine Avalos.
Likewise, the district court did not commit plain error by
interrupting Elvira Avalos’ testimony. The trial transcript
reveals that the district judge interrupted Elvira’s direct and
cross examinations eight times. These exchanges amounted to 49
lines out of 366 lines (or 13.4 percent) of her entire testimony.
Although the interruptions were more frequent than with Loraine’s
testimony, they also were not quantitatively substantial. See
Saenz, 134 F.3d at 704 n.3. Although the defendant argues that
one particular exchange resulted in her being badgered into
making a statement that could be interpreted as incriminating by
No. 00-50036
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the jury, this does not prove partiality by the district court
because the judge may elicit new facts, even harmful facts,
through its questioning. See United States v. Cantu, 167 F.3d
198, 202 (5th Cir.), cert. denied, 120 S. Ct. 58 (1999); Saenz,
134 F.3d at 708.
Outside of these two specific instances, Elvira has not
pointed to any other questioning by the district court that would
show partiality. The trial transcript reveals that the remaining
interruptions by district court occurred in order to clarify the
witnesses’ answers or to get the witnesses to focus on the
questions posed. This is well within the district court’s
authority. See id. The defendant has not shown error, much less
plain error with respect to this contention. Accordingly, the
district court’s judgment is AFFIRMED.