United States v. Lozano

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 20, 2005

Charles R. Fulbruge III
Clerk
No. 03-40404

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

JUAN LOZANO

Defendant - Appellant

Appeal from the United States District Court
For the Southern District of Texas, McAllen
#00-CR-439-1

Before JOLLY, DAVIS and JONES, Circuit Judges.

W. EUGENE DAVIS:*

In this direct criminal appeal, Lozano challenges his

conviction on a number of grounds. We find no error and affirm.

I.

A number of law enforcement agencies, organized into a task

force, conducted a four-year investigation of a drug organization

*
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this opinion should not be published and is not precedent except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.
that was transporting cocaine and marijuana from the Rio Grande

Valley in Texas to other parts of the United States. The

investigation revealed that Juan Lozano, residing primarily in

Mexico (though apparently never observed traveling to or from

Mexico), organized and operated the drug organization from as early

as 1995 and employed many people to transport large quantities of

drugs -- and to distribute them to other drug-trafficking

organizations, the participants of which were separately

prosecuted.

In August 2000, Lozano, along with co-defendants Marivel

Lozano (his wife), Rumaldo Lozano (his brother-in-law), and Ray

Perez were indicted on various drug-related charges. Lozano was

charged with 17 counts: Count One charged conspiracy to possess

with intent to distribute over five kilograms of cocaine (Counts

Four and Six through Eight charged the underlying substantive

offenses); Count Two charged conspiracy to possess with intent to

distribute over 1,000 kilograms of marijuana (Counts Five, Ten, and

Fifteen through Eighteen charged the underlying substantive

offenses); Count Three charged conspiracy to commit money-

laundering (Counts Eleven through Fourteen charged the underlying

substantive offenses).

Juan Lozano was tried with his co-defendants listed above.

During trial, the Government offered the testimony of about 65

witnesses, some of whom had dealt directly with Lozano and others

who had never heard of Lozano or spoken to him. On the fourth day

2
of trial, Perez changed his plea to guilty and ultimately testified

against Lozano. After the Government rested its case, the district

court granted a motion for judgment of acquittal as to Lozano’s

wife. After a full 18-day trial, during which the court denied

Lozano’s properly preserved motions for a judgment of acquittal,

the jury acquitted Lozano’s brother-in-law of the two counts in

which he was charged, but convicted Lozano on all counts.

Several months later, the district court sentenced Lozano to:

life imprisonment for Counts One, Two, Four, Six, Seven, and Eight

(the cocaine offenses); 40 years imprisonment for Counts Five, Ten,

Fifteen, Sixteen, and Seventeen (the marijuana offenses); and 20

years imprisonment for Counts Three, Eleven, Twelve, Thirteen, and

Fourteen (the money-laundering offenses); a $25,000 fine, and a

$1,700 assessment. Lozano timely appealed his conviction and

raises a number of issues which we discuss below.

II.

A.

Lozano argues first that the magistrate judge erred in

refusing to order the Government to disclose “reports” compiled

from wire taps and witness interviews during his detention hearing.

The Jencks Act requires the Government to produce any

"relevant and competent reports and statements in the possession of

the Government touching the events and activities as to which a

Government witness has testified at the trial." Goldberg v. United

States, 425 U.S. 94, 104 (1976); 18 U.S.C. 3500(b). The magistrate

3
judge concluded that the “reports” were not “statements” the

Government was required to disclose under the Jencks Act. 18

U.S.C. §3500.

The Government argues that Lozano’s claim is moot now that he

stands convicted. That is, the granting of bail would not have

affected the outcome of the trial, and Lozano has no “current

cognizable interest” in the resolution of the report disclosure

issue. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481 (1982). In

Murphy, the Eighth Circuit, in an appeal of the detention order

that was decided after the defendant had been convicted, found that

the defendant had been wrongfully denied bail. The Supreme Court

held, however, that the claim at issue was no longer live, and that

the defendant “lack[ed] a legally cognizable interest in the

outcome.” Id. Murphy controls the resolution of this issue. Now

that Lozano has been convicted, his claim that he was wrongfully

denied Jencks Act material is no longer a live issue and does not

serve as a basis for disturbing the conviction.

B.

Lozano argues next that the district court abused its

discretion by disqualifying his first and second defense counsel

based on conflicts of interest.

In January 2001, two days after Jose “Bobby” Flores filed a

notice of appearance as Lozano’s (first) counsel, the Government

moved to disqualify Flores, alleging a conflict of interest because

of Flores’s previous representation of Lozano’s co-defendant Perez.

4
The magistrate judge observed that the previous drug trafficking

charges had been dismissed and were incorporated into the present

case as part of the overall conspiracy. Flores claimed not to have

learned anything about Lozano from Perez and Lozano and Perez

signed a waiver of any conflict, which the magistrate accepted and

denied the Government’s motion.

Two months later, the Government filed a sealed motion to

disqualify and requested reconsideration of the conflict issue,

arguing that Flores was now an unindicted co-conspirator in the

case. At the conflict hearing, several FBI agents testified as to

wire intercepts and surveillance that revealed connections between

Flores and others in the drug conspiracy. The magistrate again

advised Lozano of the potential conflict, which Lozano again

waived. The magistrate concluded that it would be inappropriate to

allow Flores to continue representing Lozano, citing the integrity

of the judicial system and based on “appearances and potential for

problems in this criminal proceeding as it goes forward,” and

disqualified him in a written order dated June 11.

Lozano then retained Jack Pytel and Robert Berg. At a

pretrial hearing on August 20, the district court questioned

Flores’s apparent continued involvement in the case. The marshals

verified that Flores had discussed a plea offer with Lozano, and

Flores apparently acknowledged that he was back on the case at the

request of Lozano’s family. The court also inquired about any

connections between Flores and Lozano’s new counsel. Berg

5
acknowledged that Flores had first contacted him about representing

Lozano should Flores be disqualified, while Lozano had apparently

hired Pytel directly. Berg claimed to have had no substantive

discussions with Flores after being hired, but that Flores had

offered to let Berg use his offices, and he did so “just to meet”

with Flores. The court advised Lozano of this serious potential

conflict, which Lozano again attempted to waive.

During a recess, Berg informed the Government that he had

previously represented Flores on a motion to quash a grand jury

subpoena. He also stated that he might call Flores as a witness in

this case, but claimed that Pytel would examine Flores. Flores

waived any attorney-client privilege he had with Berg. It was also

revealed that Berg had been paid for this case directly by Flores,

with the “understanding” that the money came from Lozano’s sister.

The payment was in cash, but Berg did not know how much money he

had received because he “had not counted it yet” and had not filed

any documents reporting the transaction. At Lozano’s request, the

court appointed Micaela Alvarez to discuss these conflicts with

him.

The court reconvened on September 20 and decided that, in the

light of the questionable connections between Flores and Berg, and

of Pytel being able to represent Lozano with no apparent conflicts,

Berg’s potential conflicts were too great. Despite Lozano’s desire

to continue with Berg as counsel, the court deemed the conflict not

waiveable and disqualified Berg.

6
 This court reviews a district court’s disqualification of a

defense attorney for conflict of interest for abuse of discretion.

United States v. Millsaps, 157 F.3d 989, 995 (5th Cir. 1998). The

Sixth Amendment guarantees a defendant’s right to effective

assistance of counsel and a “correlative right to representation

free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261,

271 (1981).2 An actual conflict exists when “defense counsel is

compelled to compromise his or her duty of loyalty or zealous

advocacy to the accused by choosing between or blending the

divergent or competing interests of a former or current client.”

Perillo v. Johnson, 205 F.3d 775, 782 (5th Cir. 2000) (citing

Srickland v. Washington, 466 U.S. 668, 692 (1984)).

Should a defendant desire to waive the conflict, the trial

court must establish a knowing, voluntary waiver. United States v.

Garcia, 517 F.2d 272, 274 (5th Cir. 1975). In determining the

validity of a waiver, the district court is afforded “substantial

latitude in refusing waivers of conflicts of interest not only if

an actual conflict is demonstrated, but in cases where a potential

for conflict exists which may result in an actual conflict as the

trial progresses.” United States v. Vasquez, 995 F.2d 40, 45 (5th

2
The right to assistance of counsel does not guarantee that
a defendant will be represented by a particular attorney. Caplin
& Drysdale v. United States, 491 U.S. 617, 624 (1989). Although
there is a presumption in favor of a defendant’s counsel of
choice, that presumption may be overcome by the existence of an
actual conflict or by evidence of a serious potential for
conflict. Wheat v. United States, 486 U.S. 153, 159 (1988).

7
Cir. 1993) (citing Wheat, 486 U.S. at 163).3 The court must also

evaluate the potential effect on the integrity of the judicial

system. United States v. Medina, 161 F.3d 867, 870 (5th Cir.

1998); United States v. Rico, 51 F.3d 495, 511 (5th Cir. 1995).

Lozano argues that for an actual conflict claim to prevail on

appeal, one’s lawyer must have been operating under an actual

conflict which adversely affected his lawyer’s performance. The

Government properly points out that the actual and/or potential

conflicts of interest in this case only begin with the conflicts

raised by prior representations and extend to almost every

conceivable conflict of interest problem. First, the conflicted

counsel potentially has privileged information unavailable to non-

conflicted counsel. Moreover, certain evidence indicated that

Flores was an indictable co-conspirator, and was advising other co-

conspirators on how to avoid detection and prosecution. Indeed,

Flores was as much a potential witness as a potential co-defendant.

And Berg’s connections to and dealings with Flores suggest that

Berg’s representation was simply a “pseudo-representation” by

Flores. The fact that Flores remained involved in the case after

his disqualification further tainted Berg’s representation.

In sum, the district court properly observed the potential

3
An accused’s right to waive conflict-free representation is
not absolute. See, e.g., United States v. Sotelo, 97 F.3d 782,
791 (5th Cir. 1996) (district court did not abuse its discretion
by refusing waiver to permit multiple representation of
defendants).

8
pitfalls during the upcoming trial and the threats to the integrity

of the judicial process inherent in Flores’s and Berg’s continued

representation of Lozano in the case. The court did not abuse its

discretion in disqualifying them.

C.

Lozano argues next that the indictment does not sufficiently

allege a money laundering conspiracy offense in violation of 18

U.S.C. §1956(h).

We review de novo the issue of whether an indictment

sufficiently alleges all elements of an offense. United States v.

Biegnaowski, 313 F.3d 264, 285 (5th Cir. 2002). The substantive

offense of money laundering is set forth in §1956(a). A separate

subsection states that “any person who conspires to commit any

offense defined in this section . . . shall be subject to the same

penalties as those prescribed for the offense the commission of

which was the object of the conspiracy.” 18 U.S.C. § 1956(h). One

of the elements of the substantive offense of money laundering is

that the defendant knew that the property used in a financial

transaction represented unlawful activity. Lozano contends that

the indictment failed to allege this essential element of the

conspiracy offense with which he was charged.

Lozano’s argument fails for a number of reasons. First, count

3 of the indictment charged the defendants with “knowing that the

transaction was designed in whole or in part to conceal and

9
disguise the nature, location, source, ownership, and control of

the proceeds of such specified unlawful activity, and that while

conducting and attempting to conduct such a financial transaction,

that the property involved in the financial transactions . . .

represented the proceeds of some form of unlawful activity in

violation of 18 U.S.C. § 1956(a)(1).” Lozano seems to argue that

Count 3 fails to allege Lozano’s knowledge that the property used

in the financial transaction represented unlawful activity because

he is not listed in the “overt acts” as having such knowledge. The

above quoted portion of the allegations of Count 3 of the

indictment adequately alleges Lozano’s knowledge that the property

involved in the financial transactions represented the proceeds of

unlawful activity.

Moreover, because Lozano is charged with conspiracy to commit

money laundering under § 1956(h), the knowledge element Lozano

claims is missing from the indictment is not even an element of the

crime. See Threadgill, 172 F.3d at 366-67. In Threadgill, we

held that charging the defendant with conspiracy to commit money

laundering was sufficient to apprise a defendant of the charged

crime without requiring the inclusion of the elements of the

substantive crime. For these reason, we conclude that Count 3 of

the indictment adequately charged Lozano with money laundering

conspiracy under § 1956(h).

D.

Lozano argues next that the district court erred by allowing

10
the Spanish speaking jury to hear and consider tapes of Lozano’s

conversations in Spanish. The district court admitted into

evidence tapes of several conversations in which Lozano

participated that were conducted in Spanish. All the jurors stated

that they spoke and understood Spanish. The court informed all

parties that English transcripts of the tapes would also be

admitted, but only as aids–-the tapes controlled in the event of a

discrepancy. The court also invited the defendants to submit their

own competing English transcripts. The court then admitted both

the Spanish tapes and the English transcripts. The Spanish tapes

were played in open court and the jurors had the English

transcripts available to read as they were listening to the tapes.

Lozano argues that the district court abused its discretion

when it admitted into evidence recordings that were in a language

other than English. He contends that such evidence allowed the

jurors to impose their own translation of colloquial expressions,

particularly with respect to “Valley Spanish.” Lozano suggests

that the English transcript should have been the primary source of

evidence and not the Spanish tapes.

We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Gutierrez-Farias, 294 F.3d 657, 661

(5th Cir. 2002). However, as in this case where the defendant

failed to object at trial, we review for plain error. United

States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995), citing United

States v. Olano, 507 U.S. 725 (1993). To prevail under this

11
standard, the appellant must show an error that was plain, that

affected his substantial rights and that seriously affects the

fairness, integrity or public reputation of judicial proceedings.

The Jones Act, 48 U.S.C. § 864, requires that court

proceedings in United States federal courts be conducted in

English. Morales-Madera, 352 F.3d at 4. However, tapes of

recorded conversations are not “testimony” but are admitted in

evidence as exhibits. This is true whether the taped conversations

are in English or some other language. Id. At 7. The law is also

clear that the tape recording itself constitutes the best evidence

and that a transcript of that tape is used as an aid to understand

the tape. United States v. Craig, 573 F.2d 455, 480 (7th Cir.

1977).

Lozano relies upon United States v. Valencia, 957 F.2d 1189

(5th Cir. 1992), where this court affirmed the exclusion of taped

conversations which took place in Spanish. That case is readily

distinguishable. In Valencia, only two of the jurors spoke Spanish

and both parties stipulated to the accuracy of the English

transcripts of the tapes. In the instant case, however, all of the

jurors spoke Spanish and the parties did not stipulate to the

accuracy of the English translation. Furthermore, because the

English translation was admitted into evidence, the jurors had

available to them the English translation of each tape as it was

played and had available both the tape and the English translation

12
in the jury room. In the light of these facts, we are satisfied

that the district court committed no plain error in allowing the

jurors to hear the Spanish tapes.

E.

Lozano argues next that the evidence was insufficient to

support his convictions for conspiracy to commit money laundering

and the substantive offense. This court reviews challenges to the

sufficiency of the evidence “in the light most favorable to the

prosecution to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Brown, 217 F.3d 247, 254 (5th Cir. 2000).

“The evidence need not exclude every reasonable hypothesis of

innocence, and the jury is free to choose among reasonable

constructions of the evidence.” United States v. Cano-Guel, 167

F.3d 900, 904 (5th Cir. 1999). If the evidence supports equally or

gives nearly equal circumstantial support to theories of guilt and

innocence, this Court will reverse because, under these

circumstances, the jury must necessarily entertain a reasonable

doubt. See, e.g., United States v. Sanchez, 961 F.2d 1169, 1173

(5th Cir. 1992).

The elements of a conspiracy to commit money laundering are:

(l) that there was an agreement between two or more persons to

commit money laundering, and (2) that the defendant joined the

agreement knowing its purpose and with the intent to further the

13
illegal purpose. United States v. Meshack, 225 F.3d 556, 573 (5th

Cir. 2000).

To establish the substantive offense of money laundering under

18 U.S.C. § 1956(a)(1)(A)(i), the Government must show the

defendant “(1) knowingly conducted a financial transaction; (2)

which involved the proceeds of an unlawful activity; and (3) with

the intent to promote or further unlawful activity.” United States

v. Dovalina, 262 F.3d 472, 475 (5th Cir. 2002).

For purposes of § 1956, a financial transaction can be

established by evidence that cash proceeds from drug trafficking

are given to the care and possession of another. United States v.

Garcia Abrego, 141 F.3d 142, 160-161 (5th Cir. 1998). To satisfy

the promotion element of a money laundering conviction, the

Government must show that a defendant conducted the financial

transaction in question with the specific intent of promoting the

specified unlawful, activity. United States v. Valuck, 286 F.3d

221, 226 (5th Cir. 2002). Payment to co-conspirators for their

participation in the conspiracy for the purpose of continuing the

unlawful activity amounts to “promoting the carrying on of the

unlawful activity.” United States v. Wilson, 249 F.3d 366, 378 (5th

Cir. 2001).

The Government produced substantial evidence to support

Lozano’s conviction for conspiracy to launder money. Multiple

witnesses place Lozano in charge of the drug organization: Casas

transported drugs, called Lozano if there was trouble with a

14
shipment, and verified that attorney Flores was on standby to

provide legal advice. Multiple phone intercepts established that

proven drug traffickers had close ties to Lozano and that they

purchased a trailer used to transport drugs with a large cash

payment. The Government produced evidence that members of the

Lozano organization transported drugs and then would receive large

cash payments for transport back to Lozano back in Texas. This

evidence established the existence of an agreement to conduct

financial transactions that promoted the drug trafficking

enterprise as well as Lozano’s knowledge and voluntary

participation in that enterprise. The jury was entitled to reject

Lozano’s evidence that his large cash purchases for property

vehicles, horses, furniture and other items were made from

legitimate income.

With respect to the substantive offenses of money laundering,

various witnesses testified as to the drug related financial

transactions pertaining to each count. Testimony and wire

intercepts established that Lozano asked certain underlings to

bring him drug proceeds on February 28, 2000. (Count 11) Testimony

and wire intercepts established drug related financial transactions

by Lozano’s co-conspirators on March 8 (Count 12), March 13 (Count

13) and March 22, 2002 (Count 14). See United States v. Garcia,

917 F.2d 1370, 1377 (5th Cir. 1990)(party to a conspiracy may be

held responsible for a substantive offense committed by a co-

conspirator even if that party has no knowledge of that particular

15
substantive offense).

Our review of the record persuades us that the Government

produced substantial evidence that would permit a rational trier of

fact to find Lozano guilty of both the conspiracy and substantive

money laundering counts.

F.

In Lozano’s final assignment of error, he argues that the

district court abused its discretion by interfering with his cross-

examination of certain witnesses, thereby depriving him of a fair

trial. Lozano’s brief points to dozens of instances in the record

where the district court interrupted his trial counsel during

cross-examination of the Government’s witnesses.4 Lozano argues

that the district court’s actions created the appearance that the

district court sided with the Government and lead the jury to

presume guilt. Lozano further argues that the district court’s

multiple statements to the jury explaining its impartiality were

insufficient to cure the constitutional error.

This court reviews a district court’s examination of witnesses

and involvement in a trial for abuse of discretion. United States

v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998). The district court

has wide discretion over the “tone and tempo” of a trial and may

elicit information from a witnesses if he believes it would benefit

4
Lozano complains of the court’s questioning of Jorge
Casas, Angel “Chago” Vela, Sergio Guerra, Ruben Vasquez, Jr.,
Mario Martinez Alejos, and FBI Agents Ernesto Cruz and Jorge
Velasco.

16
the jury. United States v. Saenz, 134 F.3d 697 (5th Cir. 1998).

In reviewing a claim of partiality by a district judge, we must

“determine whether the judge’s behavior was so prejudicial that it

denied the [defendant] a fair, as opposed to a perfect, trial.”

United States v. Williams, 809 F.2d 1072, 1086 (5th Cir. 1987). To

make this determination, we must consider the district court’s

actions as a whole, considering factors such as context, frequency,

and the presence of curative instructions. United States v. Lance,

853 F.2d 1177, 1182 (5th Cir. 1988).

Lozano, in his brief to this court, details literally dozens

of instances where the district court questioned witnesses and made

comments during Lozano’s cross-examination of Government witnesses.

Considered out of context, these numbers appear troubling; however,

when we consider the fact that this trial lasted 18 days and the

Government presented 65 witnesses, the number of interruptions by

the district court is not unreasonable on its face. The need for

a trial court to question witnesses and clarify testimony is

proportionate to the length of a trial and number of witnesses

presented. Id. at 703; Williams, 809 F.2d at 1087.

Turning to the content of the district court’s actions, a

thorough review of the record reveals that several of the district

court’s actions have been mischaracterized by Lozano in this

appeal.5 The record also reveals that many of the interruptions

5
For example, Lozano argues that the district court
interrupted his trial counsel and called him to the bench just as

17
were aimed at remedying the often repetitive questioning by

Lozano’s attorney’s.6 Interruptions of this type become more

“he was about to gain a concession” from the witness regarding
the fact that he had not mentioned [the defendant] to the agent
with whom he was cooperating before he was arrested.”
Appellant’s Brief, p. 25. The record clearly reveals that it was
Lozano’s counsel, not the district court, who requested
permission to approach the bench in order to inform the district
court that he intended to use documents not in evidence. And,
naturally, when the Government expressed concern over the
genuineness of the documents the district court reminded the
Government that they would have a chance to voir dire before the
documents were used. See R. Vol. 28, p. 82-84.
6
For example, Lozano lists the following interruption as
problematic. Here, Lozano’s counsel questions Jorge Casas on
cross and attempts to establish that he is not trustworthy:

Q: Now, Mr. Casas, you have told a lot of lies in your
lifetime, haven’t you?
A: Yes.
Q: You have lied to the DEA agents, right?
A: Yes.
Q: As a matter of fact, when you became an informant, you
signed a contract with the Drug Enforcement Administration,
correct?
A: Yes.
Q: And as part of that contract, was that you not lie,
correct?
A: Yes.
Q: Yet, you lied to them, correct?
A: Yes.
Q: Further, that you were not to be engaged in any drug
trafficking while you were an informant, yet, you went and
ventured on your own drug business while you were an
informant, correct?
A: Yes.
Q: You also lied to other drug dealers, your co-workers or
employees or cohorts, correct?
A: Yes.
Q: You have asked other people to lie, such as, your wife
and your mother-in-law, correct?
A: My ex-mother-in-law and my ex-wife.
Q: And you have asked them to lie when the only one that
would benefit form the lie would be you, correct?

18
justified as the length of a trial increases. Saenz, 134 F.3d at

704-05; United States v. Adkins, 741 F.2d 744, 748 (5th Cir. 1984).

The record further reveals that many of the Government’s witnesses

spoke very little English and needed the assistance of an

interpreter. These language difficulties sometimes required the

district court to ask questions to clarify the witnesses earlier

A: Yes.
Q: When I say “lie,” Mr. Casas, you instructed them,
actually, to commit perjury, to commit--to say--to tell a
lie under oath, correct?
A: I don’t understand. How is that?
Q: Pardon me. I’m sorry. If they were asked to come in an
testify under oath, you instructed them to lie for you,
correct?
A: Yes.
Q: And your involvement, with respect to drug dealing, you
have also threatened people, correct?
A: Yes.
Q: And it appears as though, Mr. Casas, that every time you
have a problem, that is, you’re caught in a crime, you
decide to join forces with law enforcement against other
people, correct?
A: Yes.
Q: Okay. Now, you have admitted that you have lied to DEA
agents under oath, other drug dealers, asked people to lie
for you and that’s the truth, is it not?
A: Yes.
Q: You’ve also had, for example, in your possession a
driver’s license that had your photo, yet somebody else’s
name; is that correct?
A: Yes.
Q: And you’ve admitted to telling big lies, huge lies,
correct?
THE COURT: How many times are we going to ask the same
question, Mr. Pytel? I think he as made an admission here.
I don’t think we need to be repetitive here.

19
testimony.7 In addition, the district court was sometimes required

to interject and correct the interpreter.8 Where a witness’s

testimony is confusing or misinterpreted, a court is certainly

justified in interjecting for the sake of clarity and correctness.

Saenz, 134 F.3d at 704; United States v. Adkins, 741 F.2d 744, 748

(5th Cir. 1984). The record also reveals that on some occasions

7
For example, on direct examination Sergio Guerra testified
that he had spoken directly with Lozano about hiding a shipment
of marijuana. R. Vol. 31 at 107-108. On cross examination,
however, Sergio Guerra and Lozano’s counsel had the following
exchange:

Q: Has [Lozano] been involved in the drug business? Ever
been involved in the drug business?
A: Not that I know of, but people have tell me.
* * *
THE COURT: And your testimony, you’re also saying that you
also had a conversation yourself with Mr. Lozano, or are
your taking that testimony back?
THE WITNESS: Excuse me, Your Honor.
THE COURT: You said you had a conversation with Mr. Lozano
about some marijuana.
THE WITNESS: Yes.
THE COURT: Or is that not true?
THE WITNESS: That is true.
THE COURT: Ok, go ahead.

R. Vol. 31 at 124-125.
8
During the cross-examination of Angel Vela:

Q: And it was seven months later, in March of this year that
you first met with the FBI agents about your involvement?
THE COURT (to the interpreter): I don’t think it was “the
attorneys” (sic) he said. I think he meant “the FBI and law
enforcement officials” is what he said.
Repeat the question because this wasn’t interpreted
correctly.

R. Vol. 31 at 26.

20
the district court interjected because Lozano’s counsel clearly

mischaracterized a witness’s testimony.9 Finally, the record shows

that throughout the trial the district court repeatedly instructed

the jury that nothing he said or did was to be considered as an

endorsement of either party.

We have reviewed all of the passages in the record relied upon

by Lozano in support of his claims that the district court unduly

interjected itself into the trial to Lozano’s prejudice. We

conclude that the district court had solid grounds for its comments

and questions as discussed above, and thus the district court’s

comments and questions did not amount to an abuse of discretion.

9
For example, on cross-examination of Jorge Casas:

Q: Now, what has happened to all this money that you have
made, Mr. Casas, throughout the years?
A: I’ve made investments.
Q: Such as?
A: The hotel. The shops I have in Mexico.
Q: What else?
A: I’ve bought real estate.
Q: In the United States or in Mexico?
A: In Mexico and here.
Q: Where do you have property here?
A: Right now, I don’t have any.
Q: So that’s a lie?
* * *
MS. PROFIT (Government): Your Honor, I’m going to object.
That–
* * *
THE COURT: I mean, it’s a mischaracterization to say “that’s
a lie.” He didn’t say that he owned it right now. He said
he has invested in property and so that is a
mischaracterization and that’s a proper [objection].

R. Vol. 28 at 47-48

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 III.

For the reasons stated above, we conclude that Lozano’s

assignments of error are without merit. The judgment of the

district court is

AFFIRMED

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