IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40815
UNITED STATES OF AMERICA
Plaintiff - Appellee
v
FERNANDO HERNANDEZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-3-1
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July 10, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge and NOWLIN,*
District Judge.
PER CURIAM:**
Defendant-Appellant Fernando Hernandez appeals his
conviction on one count of conspiracy to possess with intent to
distribute marijuana in violation of 21 U.S.C. § 846 and one
count of aiding and abetting possession with intent to distribute
approximately 37.27 kilograms of marijuana in violation of 21
U.S.C. §§ 841(a)(1)and (b)(1)(D) and 18 U.S.C. § 2.
*
Chief Judge of the Western District of Texas, sitting by
designation.
**
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that this opinion should not be published and is not precedent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.
Hernandez claims that he was denied a fair trial because the
district court commented during voir dire about the seriousness
of drug crimes in general and improperly compared the quantities
in other marijuana cases with the amount in this case. He argues
that those comments might have led the jury to believe that
Hernandez was a part of a larger drug problem by associating
Hernandez with extraneous offenses committed by others. Since
there was no objection to the district court’s comments at trial,
we review only for plain error. The district court’s questions
were designed to identify any biases or prejudices the potential
jurors might have with respect to this case. The comments were
not error, plain or otherwise.
Hernandez challenges the admission of evidence, including
his oral confessions, resulting from Officer Maze’s traffic stop.
Hernandez failed to file a motion to suppress the evidence as
mandated by Fed.R.Crim.P. 12(b)(3), and therefore, he waived his
right to challenge the fruits of the stop.
Hernandez’s challenge to the jury charge, reviewed here for
plain error, is meritless. The charge given by the district
court sufficiently advised the jury that it must find beyond a
reasonable doubt that Hernandez knowingly and intentionally
committed each of the offenses on which he stands convicted.
Hernandez’s motion for a new trial, which was brought “in
the interest of justice,” and not based on newly discovered
evidence, was untimely.
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Hernandez also challenges the sufficiency of the evidence
supporting his conviction for conspiracy to possess with intent
to distribute marijuana. There is more than sufficient evidence
to establish that Hernandez knowingly and voluntarily joined in
an agreement with Isabel Soza and other unidentified individuals
to violate the narcotics laws.
Hernandez challenges the district court’s questions
addressed to Agent Friday. Again, we review for plain error.
Those questions were within the court’s discretion to clarify
evidence and were not so prejudicial as to deprive Hernandez of a
fair trial. Furthermore, the district court twice instructed the
jury that it should not consider the court’s questions during
trial as reflecting an opinion about the case.
Hernandez raises a number of claims of ineffective
assistance of counsel which we do not address on direct appeal.
For the above-stated reasons, Hernandez’s conviction and
sentence are AFFIRMED.
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