IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10180
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARISELA BEJAR SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
March 21, 2003
Before JOLLY, HIGGINBOTHAM, and MAGILL,* Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
A jury found Marisela Bejar Sanchez guilty of one count of
conspiracy to commit offenses against the United States in
violation of 18 U.S.C. § 371 and five counts of making and using
false statements and documents in a matter within the jurisdiction
of the Small Business Administration, and aiding and abetting, in
violation of 18 U.S.C. §§ 1001-02. Sanchez urges here that the
district court deprived her of a fair trial by making comments and
*
Circuit Judge of the Eighth Circuit, sitting by designation.
questioning witnesses in a manner partial to the prosecution and
that the questions and comments had the cumulative effect of
prejudicing the jury against her. We cannot agree, and affirm her
conviction.
I.
Sanchez, her husband, Willie Sanchez, and her father, Luis
Bejar, were partners in an auto repair business, known originally
as “Slick Rick’s Automotive Repair” and later as “R.A.C.E.,” Rick’s
Automotive Car Experts. Rita Barton was an accountant hired by the
partners to provide bookkeeping services for the business and
prepare individual and partnership income tax returns for the
partners.
When, in June 1994, the partners’ automotive repair business
fell into financial distress, Barton suggested to Sanchez that the
partners could apply for a federally guaranteed small business loan
to expand to include vehicle emissions inspections. Barton advised
Sanchez that the partnership would not qualify for the small
business loan if Sanchez and her husband were listed on the loan
application because Sanchez and her husband both had bad credit
histories; however, because Bejar had a good credit history, he
could qualify for the small business loan if he was listed as the
sole proprietor of the automotive repair business.
Sanchez allegedly spoke to Bejar about Barton’s suggestion,
and Bejar agreed to apply for a small business loan as the sole
2
proprietor of the family’s automotive repair business. On June 4,
1994, Sanchez caused an assumed name certificate to be filed in
Dallas County, Texas, showing Bejar as the sole owner of an
automotive repair business named “R.A.C.E.” On December 30, 1994,
Bejar applied to the Money Store, a preferred lender for the Small
Business Administration, for a federally guaranteed small business
loan in the amount of $156,000. According to the application, the
loan was supposed to be used for the acquisition or repair of
machinery, or both, and other business expenses related to the
operation of the automotive repair business. The application
indicated that Bejar was the sole owner of the business.
Bejar had good credit, but apparently Bejar did not have an
adequate income history to qualify for the small business loan. To
overcome this problem, in late 1994 Barton created false income tax
returns for Bejar that exaggerated Bejar’s income for 1991, 1992,
and 1993. Bejar signed these false returns, and Barton obtained
false IRS verifications for these returns from an IRS employee whom
Barton bribed.
While Barton was preparing Bejar’s small business loan
application, Sanchez approached Robert Roy Cook, a salesman for
Technical Service and Equipment, Inc., an automotive service
equipment company. Sanchez told Cook that she was interested in
expanding R.A.C.E. and buying automotive service equipment. Cook
testified that Sanchez initially indicated that R.A.C.E. would use
3
the proceeds of its small business loan to buy about $100,000 of
equipment; however, Cook testified that Sanchez later told him that
R.A.C.E. would not buy that much equipment because she wanted cash
back from the loan. The loan required the borrower to provide a
cash infusion in the amount of 25% of the face value of the loan
and could only be used to purchase automotive services equipment
and pay off other legitimate business expenses. Therefore, Cook
prepared false business letters, sales invoices and other documents
showing payments of approximately $39,000 from R.A.C.E. to
Technical Service for various pieces of automotive services
equipment. At some point during this same time period, Sanchez
began working for Barton, assisting her accounting business.
The Money Store disbursed the $156,000 loan on March 15, 1995,
through three escrow checks: (1) a check in the amount of $151,500
payable to Technical Service; (2) a check in the amount of $2,184
payable to the SBA to cover the SBA’s fees; and (3) a check in the
amount of $2,316 payable to Bejar to cover miscellaneous closing
expenses. Cook deposited the $151,500 check in Technical Service’s
bank account but promptly wrote Sanchez two checks from that
account that covered most of the proceeds of the small business
loan: one check in the amount of $40,000 was payable to “Race”, and
another check in the amount of $76,500 was payable to Sanchez,
personally. Sanchez subsequently deposited the $40,000 “Race”
check in R.A.C.E.’s bank account at Compass Bank on March 20, 1995.
4
Sanchez cashed the second check for $76,500 and used it to purchase
two cashier’s checks payable to herself in the amount of $45,000
and $30,000. Sanchez ultimately deposited the $45,000 cashier’s
check in the R.A.C.E. bank account at Compass Bank and endorsed the
$30,000 check to Fairfield Investments.
From March 15, 1995, until May 23, 1996, Sanchez made about
ten payments on the small business loan. In August 1997, after
Sanchez stopped making payments on the small business loan, Bejar
was forced to file for bankruptcy, listing the small business loan
and several obligations related to R.A.C.E. as his debts. The SBA
ultimately covered the outstanding balance of Bejar’s debt to The
Money Store.
On March 8, 2000, Sanchez, Bejar, and Cook were indicted on
one count of conspiracy to commit offenses against the United
States in violation of 18 U.S.C. § 371 and on eleven counts of
making and using false statements and documents in a matter within
the jurisdiction of the SBA (and aiding and abetting the same) in
violation of 18 U.S.C. §§ 1001-02.1 Barton, the accountant, was
also charged with similar crimes in a separate indictment. She
entered into a plea agreement with the government and pled guilty
to two counts charging violations of 18 U.S.C. §§ 371 and 1001.
1
The government ultimately dismissed the charges against
Bejar after it determined that Bejar had no interest in the loan
and no knowledge of the true nature of the fraudulent loan scheme.
5
From July 10 through July 17, 2001, Sanchez was tried before
a jury in the United States District Court for the Northern
District of Texas. The jury convicted Sanchez on the conspiracy
count and on the five substantive counts related to the submission
of Bejar’s false income tax returns and Technical Service’s false
invoices. It acquitted Sanchez on six substantive counts based
upon the submission of false IRS tax verifications, false business
letters from Technical Service, and a false statement from Pain
Webber. Sanchez timely appealed.
II.
Because Sanchez’s counsel did not object to the questioning of
witnesses by the judge, we review the district court’s conduct only
for plain error.2 Plain error is “clear” or “obvious” error that
affects “substantial rights” of the defendant and “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.”3
As we explained in Saenz, a trial judge has wide discretion
over the “tone and tempo” of a trial and may elicit further
information from a witness if he believes it would benefit the
jury.4 Federal Rule of Evidence 614(b) permits the trial judge to
“interrogate witnesses, whether called by [himself] or by a
2
United States v. Saenz, 134 F.3d 697, 701 (5th Cir. 1998).
3
Id. (internal quotations and citations omitted).
4
Id.
6
party.”5 In exercising this discretion, the trial court may
question witnesses and elicit facts not yet adduced or clarify
those previously presented.6 However, a judge's questions must be
for the purpose of aiding the jury in understanding the testimony.7
Furthermore, the trial court's efforts to move the trial along may
not come at the cost of “strict impartiality.”8
In reviewing a claim that the trial court appeared partial,
this court must review the entire record and the “totality of the
circumstances” surrounding the judge’s conduct to “determine
whether the judge's behavior was so prejudicial that it denied the
defendant a fair, as opposed to a perfect, trial.”9 To rise to
the level of a constitutional error, the district judge's conduct,
viewed as a whole, must amount to a “quantitatively and
qualitatively” substantial intervention that could have led the
jury to “a predisposition of guilt by improperly confusing the
functions of judge and prosecutor.”10
5
Fed. R. Evid. 614(b).
6
Saenz, 134 F.3d at 701.
7
Id. at 702.
8
Id.
9
Id. (internal quotations and citations omitted).
10
Id. (internal quotations and citations omitted).
7
III.
Sanchez argues that, as in Saenz, the outcome of the trial
hinged on the jury’s evaluation of the credibility of the
government’s key witnesses and that the court committed plain error
by making comments and asking questions that were partial to the
prosecution and prejudiced the jury against Sanchez.
A.
The first alleged error occurred during the testimony of Rita
Barton, the accountant who helped create and package the fraudulent
loan materials for submission to the lender. The argument is that
the district court improperly rehabilitated Barton by its actions
on four occasions during Barton’s testimony. The first incident
occurred when the district court questioned the fairness of
impeaching Barton with a statement taken from investigative notes.
The second incident occurred when the district court interrupted
the defense’s cross-examination to clarify that Barton had pled
guilty to charges related to one of the fraudulent loans and
“accepted responsibility” for her actions. The third incident
involved the district court cutting short defense counsel’s
questioning about the number of false statements Barton had made
for which she had not been charged. The district court informed
the jury that Barton was a “serial fraud liar,” that she had
“plenty of motive to want to please the government,” and that “her
testimony should be weighed by you with great caution and great
8
care.” The final incident concerned defense counsel’s attempt to
impeach Barton by noting that although she agreed to take a
polygraph as part of her plea agreement, the government never asked
her to take one. The district court gave the jury an extensive
instruction that the results of polygraphs are inadmissible and
“would be a big fat goose egg and wouldn’t have anything to do with
anything going on in these four walls.”
While some of the district court’s interventions during the
cross-examination of Barton may have been inadvisable, they do not
rise to the level of plain error. The district court was
exercising its proper role of making evidentiary rulings and using
its discretion to prevent repetitive and cumulative evidence.11
Viewed in context, these questions and comments do not demonstrate
partiality on the part of the district court. In fact, the court
made several comments damaging to Barton’s credibility, including
calling her a “lying, thieving, prevaricating, false-statement-
giving thief and con person” who “obviously has plenty of motive to
lie to get the government to maybe give ... her the benefit of a
lesser sentence.” The court did not substantially interfere with
the defense’s impeachment of Barton.
B.
11
See Morre v. United States, 598 F.2d 439, 442 (5th Cir.
1979).
9
Next, Sanchez alleges that the district court interfered with
the cross-examination of Robert Cook, the employee of Technical
Service who produced false invoices and letters that were used in
the loan application. Sanchez alleges that the district court
improperly rehabilitated Cook following the defense attorney’s
impeachment of Cook with inconsistent statements.
She objects to the district court’s statement that “best I can
tell, no one can lay a glove on you, you’re in the clear, it’s over
for you.” In context, the court was trying to calm both the
witness and the lawyers, nothing more.12
As to the lecturing of defense counsel about proper
impeachment techniques, the court was not plainly in error. The
trial judge instructed defense counsel not to impeach the witness
with statements that were not his, but were instead statements from
the investigator’s interview notes. Even assuming the district
court misstated the rules of evidence, which is by no means clear,
making evidentiary rulings is entirely appropriate and the
instructions were invited by the defense counsel’s question to the
12
The comment by the court followed a heated exchange between
defense and prosecution counsel and reads:
What did everyone have for lunch? First of all, just –
chill out. And – and your [the witness’s] overall
demeanor, best I an tell, no one can lay a glove on you,
you’re in the clear, it’s over for you. So everybody
needs to relax, listen to the question and answer the
question.
10
court on how he was to proceed. The district court did not stray
from neutrality or act improperly.13
C.
Sanchez’s third complaint is that the district court
improperly interfered with the impeachment of investigating agent
Jones. Defense counsel was impeaching the witness by referencing
the witness’s testimony before the grand jury. Throughout the
trial, defense counsel and the district court had numerous
discussions on the proper technique for impeaching a witness with
a prior inconsistent statement. In questioning agent Jones,
defense counsel apparently attempted to impeach her by attacking
her character pursuant to Rule 608(b) by pointing out that she had
misled the grand jury. The district court interrupted, assuming
that defense counsel was again using the grand jury testimony as an
inconsistent statement, and instructed defense counsel that agent
Jones had not yet made a statement that was inconsistent with her
grand jury testimony. Defense counsel noted his objection for the
record, and the district court overruled the objection stating that
it was “improper impeachment.” Sanchez argues this exchange
created an appearance of bias.
While the district court’s ruling of “improper impeachment”
was erroneous, it was based on defense counsel’s previous conduct
and failure to object properly. The district court thought this
13
Id.
11
another attempt to impeach with an inconsistent statement, and
defense counsel did not correct the court’s error. Instead,
defense counsel invoked the rote, “goes to credibility,” rather
than urging that the effort was to show by specific acts that agent
Jones was untruthful. Given the context and the previous
discussions of impeachment with inconsistent statements, the
district court did not act improperly.
D.
The final complaint is that on several occasions the district
court questioned witnesses and elicited responses that were harmful
to the defendant. We noted in Saenz that “[t]he mere fact that the
trial court itself, not the prosecution, elicited ... damaging
information contributed to the perception that the court was
helping the government.”14 Aware of this reality, these allegations
must be examined closely.
The first incident occurred during the defense’s cross-
examination of Barton. The witness asked to clarify an answer, and
when defense counsel instructed her that the court would probably
prefer that they move on, the court interrupted and allowed the
witness to clarify her answer. The clarification implicated the
defendant when the witness testified that Sanchez knew that Barton
had to “take care of business” at the IRS, although Sanchez did not
know any details. The court then asked if this occurred while
14
United States v. Saenz, 134 F.3d 697, 707 (5th Cir. 1998).
12
Sanchez was working for Barton, and if Barton was “seeing [Sanchez]
on a daily basis,” to which Barton answered yes. This testimony
made it more likely that Sanchez knew that Barton was falsifying
documents.
Defense counsel later tried to clarify that Sanchez was not
working for Barton at the time. In response to an extended series
of questions on this point, the district court stated, “All this is
because I asked her if she was - if Marisela was working for her at
the time the documents were sent in and she said yes?” The
argument is that this comment suggested to the jury that defense
counsel’s questions were not important, minimizing the impact of
his attempt to clarify when Sanchez was working for Barton.
The next incident occurred during the cross-examination of
agent Jones. Defense counsel asked agent Jones a series of
questions to determine who approached Cook about creating the false
invoices. The court interrupted and stated:
Look, look, life’s too short for this. And I hesitate to
get involved here, but we’ve taken about eight questions
to get to the very first question you asked that she
didn’t understand, that she didn’t answer. He asked you
who dummied up – your understanding, your belief from six
years of living with this, who dummied up the invoices.
That’s what he asked you eight questions ago. And now
we’re going through all this.
In response to this statement the witness responded, “Bob Cook
dummied them up at the direction of Marisela Sanchez.”
In fact, the question defense counsel had asked agent Jones
was who had approached Cook, not who dummied up the invoices.
13
While the district court slightly misstated the question, the
answer was responsive to defense counsel’s initial question. When
defense counsel continued his questioning about who approached
Cook, the witness repeated that Sanchez had asked Cook for the
false invoices and Barton had asked for false letters in support of
the invoices. Defense counsel then attempted to impeach Jones by
pointing out that she had initially told prosecutors that Bejar,
Sanchez, and Barton had asked Cook for false documents, rather than
just Barton and Sanchez.
The final incident occurred near the end of trial, during the
cross-examination of agent Jones, and was potentially the most
damaging to the defense. Defense counsel was trying to establish
that Jones had testified to the grand jury that Bejar was involved
in the scheme and that was the reason the grand jury had indicted
Bejar. The defense was emphasizing that contrary to Jones’s grand
jury testimony implicating Bejar, Jones and the prosecution did not
implicate Bejar at trial. After both sides had finished
questioning Jones, the following exchange took place.
THE COURT: Okay. Let’s talk about the grand jury
a minute since there has been so much talk about that and
what really is going on here.
Isn’t it true that you went to the grand jury before
your investigation is complete in this series of cases?
THE WITNESS: Yes, sir.
THE COURT: And there’s a real good reason for that,
isn’t there?
14
THE WITNESS: Yes, sir.
THE COURT: Did you ever have any talk with the
government about the statute of limitations in this case?
THE WITNESS: Yes, sir.
THE COURT: From March – the indictment was
returned, I guess, on March 8 of 2000. Right?
THE WITNESS: Yes.
THE COURT: And the first funded loan was this one,
March 15?
THE WITNESS: March 15th.
THE COURT: Of ‘95?
THE WITNESS: Yes, sir.
THE COURT: A week shy of five years. Correct?
THE WITNESS: Yes, sir.
THE COURT: And after – is it true that at the time
you went to the grand jury, you did not – you had not
completed your investigation, and as an unfortunate
consequence of that, maybe some people got indicted that
shouldn’t have been?
THE WITNESS: Yes, sir.
THE COURT: Chief among them being Luis Bejar?
THE WITNESS: Yes, sir.
THE COURT: And the reason for that is you were just
going off of documents –
THE WITNESS: Yes, sir.
THE COURT: – rather than completing the
investigation and actually interviewing the people to
figure what was going on.
THE WITNESS: Yes, sir. Time was running out.
[Defense Counsel]: Ask a couple follow-up questions
to the Court’s questions?
15
THE COURT: Well, it’s the government’s turn.
Anything else?
[Prosecutor]: All right. With respect to the
statute of limitations – I don’t have any other questions
to ask.
THE COURT: When something is true, that’s probably
the best way to handle it.
[Prosecutor]: Yeah, thank you.15
It is apparent from the court’s leading questions that the
court believed that Bejar was indicted only as a result of the rush
to obtain indictments before the statute of limitations ran out,
rather than because he was guilty. The court’s final statement,
“When something is true, that’s probably the best way to handle
it,” left no doubt that the court believed this is what happened,
rather than simply putting it forward as one possible scenario of
events.
Sanchez argues that this evidence devastated the defense that
the government believed that Bejar was part of the scheme and
indicted him, and that Bejar changed his story to implicate Sanchez
in order to save himself after he was indicted. Sanchez argues
that by providing the jury with an innocent explanation for why
Bejar was indicted and the charges later dropped, the judge’s
leading questioning and comments destroyed the defense theory that
Bejar changed his story to avoid punishment.
15
Emphasis added.
16
The court’s questions and comments clearly helped the
prosecution. While the court’s explanation was apparently true,
the fact that the court elicited the information potentially gave
the appearance that the court was partial to the prosecution,
particularly because of the leading nature of the questions and the
court’s comment that “[w]hen something is true, that’s probably the
best way to handle it.”
IV.
We must consider the totality of the court’s behavior in view
of the entire record to determine if there was a constitutional
violation.16 When viewed in totality, the court’s questioning of
witnesses, comments on the evidence, and evidentiary rulings do not
amount to a “quantitatively and qualitatively” substantial
intervention that could have led the jury to “a predisposition of
guilt by improperly confusing the functions of judge and
prosecutor.”17 While Sanchez’s contentions have force and rest on
what is at best inadvisable interventions by the district court,
they are only a part of the court’s involvement in the trial. A
trial is not a scripted stage performance but rather it is a
dynamic and highly charged process which must be judged as a whole
and not in chosen segments. The number of times the court was
16
See United States v. Saenz, 134 F.3d 697, 702 (5th Cir.
1998).
17
Id. (internal quotations and citations omitted).
17
required to intervene in the trial, each in an entirely appropriate
manner, blunts the effect of the complained-of incidents. When
viewed as a whole, and the compelling case presented by the
prosecution, the district court’s conduct does not rise to the
level of plain error.
Sanchez argues that this case is indistinguishable from Saenz,
where we found that the district court’s action had deprived the
defendant of a fair trial. We do not agree, as the same “unusual
combination of circumstances” is not present here.18
In Saenz, the trial court interrogated both the defendant and
the government’s only cooperating witness extensively and elicited
testimony that damaged the defendant and bolstered the government’s
witness. We reversed, in part, because the outcome of the case
“hinged” on the jury’s assessment of the credibility of the
competing testimony of the defendant and the witness for the
prosecution.
In contrast, Sanchez did not testify on her own behalf, as
Saenz did, and faced no improper questioning from the judge.19 It
is true that the credibility of Barton, Cook, and Jones was
important, but the case did not “hinge” on the jury’s assessment of
18
Id. at 699.
19
Compare United States v. Cantu, 167 F.3d 198, 203 (5th Cir.
1999), with Saenz, 134 F.3d at 709 (noting that the court is
particularly sensitive to a trial judge’s questioning of a
defendant).
18
the credibility of two competing witnesses, as it did in Saenz. In
fact, the government’s case against Sanchez featured multiple
witnesses, including coconspirators and law enforcement officials,
as well as documentary evidence that showed that Sanchez personally
participated in the process of obtaining the small business loan
and that Sanchez personally received the proceeds of the loan from
Cook.20
Finally, in this case, the district court’s comments and
questions were not nearly as extensive or as inherently prejudicial
as the trial court’s comments and questions in Saenz.21 While the
comments concerning the indictment of Bejar brought the judge close
to the line, Sanchez overstates the importance of Bejar’s
indictment to the defendant’s case. As the defense noted in its
opening statement, “Luis Bejar may or may not have known” that Rita
Barton fabricated the loan documents. Sanchez’s defense did not
hinge on Bejar’s knowing involvement in the crime, nor did the
testimony elicited from Jones rule out the possibility that Bejar
was lying on the stand concerning his daughter’s involvement.
V.
Some of the district court’s comments were unwise, but after
a review of the entire record we cannot say that the incidents
20
See Cantu, 167 F.3d at 203 (distinguishing Saenz on similar
grounds).
21
Id. (distinguishing Saenz on similar grounds); United States
v. Lankford, 196 F.3d 563, 572-73 (5th Cir. 1999) (same).
19
complained of deprived Sanchez of her fundamental right to a fair
trial. Specifically, we are not persuaded that they seriously
affected the fairness, integrity, or public reputation of the
judicial proceeding. Therefore, we AFFIRM.
20