Revised September 28, 2000

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

____________

No. 99-41027 ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

VERONICA REYES, FRANCISCO REYES

Defendants-Appellants.

_______________________________________________________

Appeal from the United States District Court For the Southern District of Texas _______________________________________________________

September 11, 2000

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Francisco and Veronica Reyes were convicted following a jury trial on one count of

conspiracy to possess with intent to distribute marijuana, in violation of

, 841(a)(1)

and 841(b)(1)(D), and one count of possession with intent to distribute marijuana, in violation of

(a)(1), 841(b)(1)(D) and

. The Reyeses now appeal their convictions

principally on the basis that the district court improperly questioned witnesses in a fashion that so favored the prosecution as to deprive the Reyeses of a fair trial. For the reasons set forth below, we

affirm the convictions.

Francisco and Veronica Reyes (brother and sister) were convicted following a series of events

that began at a United States Border Patrol Checkpoint south of Hebbronville, Texas. The Reyeses’

car, a Mercury, was sent to a secondary inspection area after an agent’s dog alerted to the presence

of narcotics. Border Patrol Agent Garza ascertained the identity of the Reyeses and inquired as to

their destination (north to San Antonio) and, when a search of the car produced no narcotics, allowed

the Reyeses to proceed north.

Nearly simultaneously, a local rancher informed Border Patrol that a suspicious-looking

pickup truck had been traveling through the Green Hill Cemetery area))an area of local repute for

evading the checkpoints. Checks on the information provided by the rancher showed that the truck

belonged to Francisco Reyes. Other agents from the Border Patrol departed to seek out the truck,

relaying this information via radio communication to all local agents. Agent Garza, now traveling in

his vehicle away from the checkpoint into Hebbronville, heard this communication, and again nearly

simultaneously, noticed the Mercury on the road. Recalling the name Francisco Reyes from the just-

completed inspection of the car, Agent Garza became suspicious and attempted to follow the

Reyeses, but lost them in traffic. When a second radio communication announced that agents had

found the pickup truck and seized 67 pounds of marijuana, Agent Garza requested assistance in

locating the Mercury. Agent Garza himself then spotted the car, which was now traveling slowly

west down the highway. He waited to see whether the car would reach a later checkpoint down that

highway; it did not. Another agent eventually located the car traveling south away from San Antonio.

-2- The Mercury ultimately proved to be registered to the driver of the pickup truck))and the

common law husband of Veronica Reyes))Rolando Rodriguez. A search of the Mercury produced

a receipt for two-way family radios purchased three days before the incident and a cellular phone

registered in the name of Veronica Reyes. A further search of the truck produced an instruction book

for the radios, a cellular phone registered in the name of Roxanne Reyes (Veronica’s sister), and one

of the two-way radios. The apparent companion two-way radio was found on the side of the road

near where the Mercury was stopped. Although the timing of the calls was disputed at trial,

testimony and phone company records indicated that several calls were made from the phone in the

Mercury to the phone in the truck in the two hours before the arrests.

Rolando Rodriguez pleaded guilty to possession of marijuana. Francisco and Veronica Reyes

were convicted in a jury trial.

Because the Reyeses’ trial counsel did not object contemporaneously to the district court’s

questions to the witnesses, we now review the district court’s interrogations for plain error. See

United States v. Saenz,

(5th Cir. 1998). “Plain error occurs when the error is so

obvious and substantial that failure to notice and correct it would affect the fairness, integrity, or

public reputation of judicial proceedings and would result in manifest injustice.” United States v.

Mizell,

(5th Cir.), cert. denied,

,

,

(1996) .

It is within the prerogative of a federal judge to manage the pace of a trial, to comment on

the evidence, and even to “question witnesses and elicit facts not yet adduced or clarify those

previously presented.” United States v. Williams,

(5th Cir. 1987) (quoting

Moore v. United States,

(5th Cir. 1979)); see also Fed.R.Evid. 614(b) (“The court

-3- may interrogate witnesses, whether called by itself or by a party.”). The primary limitation on this

judicial investigatory power is that it must be undertaken for the purpose of benefitting the jury in its

understanding of the evidence, and the court may not appear to be partial. See Saenz,

. A determination on the appearance of partiality is made by reviewing the record in its entirety.

See United States v. Cantu,

(5th Cir.), cert. denied sub nom. Lopez Cantu v.

United States,

,

(1999). Specifically, “[t]o rise to the level of a

constitutional error, the district judge’s actions, viewed as a whole, must amount to an intervention

that could have led the jury to a predisposition of guilt by improperly confusing the functions of judge

and prosecutor.” United States v. Bermea,

(5th Cir. 1994).

To facilitate this determination, we have in t he past looked to certain factors to assess the

propriety of the judicial interro gation. In a “complex or lengthy case with multiple witnesses,” or

where there is a “need to expedite testimony on certain issues or by certain witnesses,” judicial

intervention is most appropriate. Saenz,

. On the other end of the spectrum, as

in United States v. Saenz, judicial interrogation is least appropriate where the questioning centers on

the credibility of crucial witnesses and there is little other evidence to support conviction. See Saenz,

; see also Cantu,

(emphasizing the uniqueness of the Saenz case).

The instant case contains none of these factors. The Reyeses were convicted following a one

day trial, in which seven witnesses for the government testified, and there were no defense witnesses.

The issues presented in the trial were neither complex, nor did they implicate decisions on credibility.

Instead, the case against the Reyeses consisted entirely of circumstantial evidence. The Government

put forth a theory that the numerous pieces of evidence illustrated that the Mercury was acting as

-4- a “scout” vehicle for the “load” truck containing the marijuana.1 The defense, on the other hand,

argued that the cars were linked because of the close family ties between the occupants, but that the

marijuana belonged to Rodriguez alone, and the Reyeses were on a trip north to deliver a birthday

present to Francisco’s daughter, doubling back south only because they forgot the gift.

During the trial, the court interjected itself into the questioning of six of the seven witnesses.

Often the questioning was lengthy and involved the details of several key pieces of evidence: the

walkie-talkies, the cellular phone calls, the alert by Agent Garza’s dog, the testing of marijuana

samples, and the radio communication of the rancher’s identification of the pickup truck. A

substantial portion of the interrogation can only be described as proper clarification))including how

the identity of a caller on a cellular phone is established, and the directions each car was driving at

any given moment. Other instances of questioning were collateral to the issues presented in the

case))including the procedure for testing drug samples and who had control over the seized

evidence,2 and how the Border Patrol radio communication system works.3 Finally, a number of the

questioning episodes also presumably favored the defense))including inquiries to two witnesses that

highlighted discrepancies in the cellular phone records of incoming and outgoing calls.

The difficulty arises, however, with two particular instances of questioning. The first episode

1 A “scout” vehicle, as described at trial testimony in this case, is one which precedes a “load” vehicle in transit through checkpoints. Load vehicles carry the principal shipment of narcotics, whereas scout vehicles either serve as decoys by distracting border agents with a smaller amount of narcotics, or as lookouts by informing the load vehicles when agents are nearby. 2 There was no allegation of evidence tampering in this case, and all parties conceded that marijuana was found in the pickup. 3 There was no challenge to the assertion that Agent Garza was alerted to the possibility that the Reyeses may have been implicated via radio communication.

-5- was an interrogation of Agent Garza, in which the district court brought out first that the dog had

alerted to the Mercury, and then, more specifically, that dogs may sometimes alert when drugs have

once been in the vehicle but no longer are. The second episode was a series of questions put to

another agent attempting to link the walkie-talkies found to the receipt in the car and to each other.4

Such questioning goes beyond mere clarification and into the realm advancing a theory of the case

compatible with that of the prosecution))specifically, that the Mercury was a scout car, and that the

walkie-t alkies were used in each of the vehicles to communicate with each other. It is of course

possible that the Government would have brought out each of these points on its own, but the court’s

questions had the effect of emphasizing for the jury that the court thought it incredulous both that the

dog had alerted falsely and that the walkie-talkie found at the roadside did not belong to the Reyeses.

See Saenz,

(“The court’s questions did not elicit information that the prosecution

was likely to have missed. The mere fact that the trial court itself, not the prosecution elicited such

damaging information contributed to the perception that the court was helping the government.”)

But our inquiry does not end with the propriety of particular questions asked. Even if the

implications from the district court’s questions regarding the dog alert and the walkie-talkies

bolstered the government’s theory of the case, we must still look to the cumulative effect of the

questioning based on an examination of the entire record. Here, even casting aside the reasons why

a dog may alert to a car that does not contain drugs and the possibility of a match between the

4 For example, THE COURT: The question then, wo uld be: Why would you buy two radios that didn’t have the same frequency? THE WITNESS: That’s correct, sir. THE COURT: That–that wouldn’t make any sense, would it? THE WITNESS: That wouldn’t make any sense.

-6- walkie-talkies, the jury would still be left with the following pieces of evidence: (1) the relationship

of the occupants of the truck and the Mercury, (2) the load of marijuana in the truck, (3) the

Mercury’s failure to reach its stated destination, (4) the presence of both vehicles in an area of repute

for drug trafficking, (5) the cellular phone calls between the Mercury and the truck, and (7) the

instruction book and receipt for the walkie-talkies. Such circumstantial evidence, all tending to point

to the “scout/load” scenario rather than the defense’s birthday gift scenario, is itself adequate to

suppo rt the Reyeses’ conviction. In addition, the district court was careful to issue a curative

instruction in his introduction of the case that cautioned the jury to disregard any perceived partiality.

See United States v. Wallace,

(5th Cir. 1994) (holding that a curative instruction

may overcome the resulting prejudice from improper commentary by a trial judge).

In sum, while recognizing that any implication by the court that it may favor one theory of the

case over another in a case based entirely on circumstantial evidence is potentially highly prejudicial,

we cannot say that in this case the prejudice was so pervasive as to deprive the defendants of their

constitutional rights.

The Reyeses also advance brief arguments that, first, the evidence against them is not

sufficient to support a conviction of conspiracy, and secondly that the second stop of the Mercury

was not supported by reasonable articulable suspicion. Both of these arguments are dispensed with

easily. A challenge to the sufficiency of evidence is reviewed “in the light most favorable to the jury

verdict. It is considered sufficient if a rational trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.” United States v. Martinez,

(5th Cir.

1999). In addition, we have repeatedly held that circumstantial evidence alone is adequate to support

a conviction of conspiracy. See, e.g., United States v. Soape,

(5th Cir.), cert.

-7- denied

,

,

(1999). As discussed above, the evidence

in this case is such that a rational trier of fact could infer from the various pieces of circumstantial

evidence that the Reyeses intended to join the agreement to traffic marijuana.

The final issue is whether the district court improperly denied the Reyeses’ motion to suppress

the evidence seized from the Mercury. We review a district court’s findings of fact on a motion to

suppress for clear error only, and legal conclusions de novo. We view the evidence introduced at the

suppression hearing in the light most favorable to the prevailing party, here, the prosecution. See

United States v. Ceniceros,

(5th Cir. 2000). The district court held two hearings

on the Reyeses’ motion to suppress, and made three separate fact findings which the Reyeses do not

now contest. We therefore hold that the district court did not err in finding that the agents had

reasonable suspicion to support a stop of the Mercury.

For the foregoing reasons, the convictions of Francisco and Veronica Reyes are

AFFIRMED.

-8-