UNITED STATES COURT OF APPEALS For the Fifth Circuit ________________________________

No. 99-40748 _________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ESTANISLADO MONTALVO-TORRES,

Defendant-Appellant. _________________________________________

Appeal from the United States District Court For the Southern District of Texas No. CR-L-98-904 __________________________________________ November 22, 2000

Before: GOODWIN1, GARWOOD and JONES, Circuit Judges.

PER CURIAM:2

Estanislado Montalvo-Torres appeals his conviction for possession with

1 Circuit Judge of the Ninth Circuit, sitting by designation. 2 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. intent to distribute approximately 129 pounds of marijuana. Montalvo argues that

the district court’s questioning of him during his trial deprived him of a fair trial

because it improperly influenced the jury’s determination of his credibility. We

agree.

Because Montalvo did not object to the district court’s questioning, review is

for plain error. This Court may correct forfeited errors only when the appellant

shows the existence of an error, that the error was clear or obvious, and that the

error affected his substantial rights. See United States v. Calverley,

(5th Cir. 1994) (en banc). Even if these factors are established, the Court

will not exercise its discretion to correct a forfeited error unless it “seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” See United

States v. Olano,

(1993) (quoting United States v. Atkinson,

(1936)).

At times the judge’s questioning of the defendant gave an appearance of

partiality toward the prosecution’s case. The court questioned Montalvo

extensively about his claim that his fear of the the drug dealers caused him to

transport the marijuana:

The Court: Why didn’t you simply tell the people at the Border Patrol, “Those people in that car”-- certainly you knew what kind of car they were driving– “they forced me to

-2- have this marijuana?” Montalvo: I was again feeling fear for my security and my family at that time. The Court: Did you ever feel any fear about being charged with a hundred some-odd pounds of marijuana? Montalvo: Yes. The Court: But it wasn’t as much fear as you had– as would regard those other persons? Montalvo: No.

Later, the judge seemed determined to drive home the idea that the defendant had

given inconsistent accounts of his experience.

The Court: Okay. But where you picked up the controlled substance, the drugs, and how that took place would not have required you to reveal the names of the persons, would it have? Montalvo: They were asking for it. The Court: Oh, well, how could they be asking for names if you had told them it was all yours? Montalvo: I never said it was all mine. I said I was being paid. The Court: Did you not at one time tell somebody it was yours? Montalvo: No. The Court: No one? Montalvo: No. The Court: You never said, “It’s mine?” Montalvo: No. The Court: Okay. Why did you tell different stories to different people?

These exchanges demonstrate the district court’s apparent disbelief of Montalvo’s

defense.

The district court asked similarly skeptical questions of other defense

-3- witnesses. After Montalvo’s wife had testified about her husband’s church

attendance and strong moral character, the judge asked: “Ma’am, if he is all these

things your attorney keeps asking him about, why would he allow himself to be

used?” After Montalvo’s friend testified that he saw Montalvo enter a truck with the

drug dealers, the court again interjected in a seemingly adversarial manner.

The Court: Why didn’t you do anything about it? Witness: The reason I didn’t do anything about it [is] because I am a calm person. I believe in- [t]he Bible says patience is a virtue. Patience is a virtue. I am a patient man. I don’t jump into action like other people. I sort of like tend to wait. I tend to wait. The Court: Do we read the same Bible?

Again, the judge’s questions give room for the interpretation that he did not believe

the defense’s story.

In United States v. Saenz,

(5th Cir. 1998), we reversed the

defendant’s conviction because the judge, in fact the same judge whose questioning

is at issue here, questioned the defendant in a manner that amounted to plain error.

As here, in Saenz, the judge took over the interrogation of the defendant when the

latter testified on his own behalf. See

. We held that the court’s

questioning had the effect of expressing the judge’s disbelief in the defendant’s

explanation of events. See

. The judge’s questioning of Montalvo

-4- likely had the same effect in this case– that of expressing the judge’s disbelief in

Montalvo’s coercion defense-- an effect likely not lost on the jury. We express no

opinion on the merits of the defense.

Defense counsel’s hesitation to make timely objections while a district court

is questioning a witness is sometimes understandable, but risks forfeiture of review.

In this case, the plain error rule should not be rigorously employed to prevent

review. The court’s extensive questioning of Montalvo could have given the jury

the impression that the judge did not believe Montalvo’s testimony. That was plain

error.

REVERSED and REMANDED.

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