          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                November 18, 2008
                               No. 08-50116
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CRYSTAL MUNOZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:07-CR-119-8


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Crystal Munoz appeals her conviction following a jury trial for conspiracy
to possess with intent to distribute 1000 kilograms of marijuana. Munoz was
sentenced to a term of imprisonment of 235 months.
      Munoz argues that her Sixth Amendment right to confront and cross-
examine witnesses was violated by the district court’s prohibiting her counsel
from questioning accomplice witnesses about their motive for testifying, in
particular, about the potential reduction of their sentences if they cooperated

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 08-50116

with law enforcement authorities. Munoz further asserts that the district court
did not permit her counsel to cross-examine Rosa Sanchez about her motive for
testifying. She contends that due to the district court’s ruling, counsel did not
approach the motive topic with the other Government witnesses and, thus, could
not point out their motivation during closing argument.
         The Government argues that review is for plain error because defense
counsel did not object when the district court disallowed a question to Sanchez
and did not request a clarification of the ruling. The Government asserts that
even if the issue is deemed preserved, the error was harmless because the
motivation of the witnesses was fully disclosed to the jury on direct examination
and because the evidence as a whole was overwhelming with respect to Munoz’s
guilt.
         The Confrontation Clause guarantees a defendant a right to conduct
effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
However, courts have the discretion to impose reasonable limits on cross-
examination based on concerns such as harassment, prejudice, confusion,
relevance, or repetition. Id. The court will consider if counsel was allowed to
present facts from which the jury could appropriately draw inferences regarding
the reliability of witnesses. United States v. Restivo, 8 F.3d 274, 278 (5th Cir.
1993).
         An alleged violation of the Confrontation Clause resulting from the total
denial of cross-examination of a witness are reviewed de novo, but are subject to
a harmless error analysis.” United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.
2006).     In determining whether the error was harmless, the court must
determine whether, “assuming that the damaging potential of the cross-
examination was fully realized, a reviewing court might nonetheless say that the
error was harmless beyond a reasonable doubt.” Id. at 562 (internal quotation
and citation omitted).



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                                   No. 08-50116

        If the district court merely limits the cross-examination of a witness, the
standard of review is for an abuse of discretion. Id. at 558-59. To show an abuse
of discretion, the defendant must show that the limitations on cross-examination
were clearly prejudicial. Restivo, 8 F.3d at 278. A determination of whether the
trial court’s restrictions on cross-examination are “clearly prejudicial” requires
consideration of “the overall strength of the prosecution’s case, the circumstances
surrounding the challenged testimony, the importance of that testimony, and its
corroboration or contradiction elsewhere at trial.” United States v. Gray, 105
F.3d 956, 965 (5th Cir. 1997).
        It is not clear that counsel preserved an objection to the district court’s
denial or limitation of cross-examination.        However, the court need not
determine whether defense counsel preserved the issue because Munoz has not
shown that she is entitled to relief even under a de novo standard of review
because any error was harmless.
        The Government’s questioning of the accomplice witnesses established
that the witnesses were or had been in prison and that several of the witnesses
understood that their testimony might result in a reduction of their sentences.
Thus, the jury was aware that these witnesses had a motive to testify favorably
for the Government. Secondly, the district court instructed the jury that the
accomplice witnesses and the Government had entered into a plea bargain
providing for a possible lesser sentence if the witnesses cooperated and that the
accomplices’s testimony must be received with caution and weighed with great
care.    Finally, in his closing argument, defense counsel argued that Rosa
Sanchez’s motivation for testifying was to obtain a reduced sentence. Defense
counsel could have relied on the Government’s direct examination of the
accomplice witnesses to argue that the other witnesses had the same motive.
The jurors could have readily inferred that the other accomplice witnesses had
the same motive for testifying as Sanchez.



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                                    No. 08-50116

         The jury had sufficient facts presented to them to weigh the credibility of
the accomplice witnesses. Restivo, 8 F.3d at 278. Any denial or limitation on
counsel’s cross-examination of the accomplice witness was at most harmless
error.
         Munoz argues that during the trial, the district court improperly
admonished her in front of the jury on several occasions. She contends that this
conduct in conjunction with the limited cross-examination resulted in harmful
error. Because Munoz did not object to the district court’s comments, review is
for plain error. See United States v. Sanchez, 325 F.3d 600, 603 (5th Cir. 2003).
A trial court has discretion over the “tone and tempo” of a trial, but may not
attempt to move a trial along at the “cost of strict impartiality.” Id. To show
that the district court was not impartial, Munoz must demonstrate that the
district court’s behavior was so prejudicial as to deprive her of a fair trial. Id.
         The statements made by the district court that Munoz complains about
were generally just explanations for the district court’s evidentiary rulings.
Further, the district court instructed the jury to disregard anything it said or did
during the trial, except for the legal instructions given, and not to assume that
it had any opinion on any of the issues in the case. After the Government rested
its case, the district court gave counsel the opportunity to recall the accomplice
witnesses to question them on any matters that had not been covered.
Considering the record as a whole, any error that may have occurred was
harmless.
         Munoz’s conviction is AFFIRMED.




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