                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                           _____________________

                                  No. 97-11285
                             _____________________

                        UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

             ROSELLER FRANCO, also known as Roy Franco,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:97-CR-37-R-4)
_________________________________________________________________

                                 June 10, 1999

Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     For   Roseller     Franco’s     challenge   to   his     conviction    for

conspiracy     to   commit   mail   fraud,   primarily   at   issue   are   the

district court’s comments on the evidence and its criticisms of

defense counsel.      We AFFIRM.

                                      I.

     Fifteen persons and Franco, who served as office manager for

two law offices, were indicted for conspiracy to commit mail fraud,

in violation of 18 U.S.C. § 371, and for conspiracy to launder

money, in violation of 18 U.S.C. § 1956(h).                   Because all of




     *
      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this opinion should not be published and is not precedent except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.
Franco’s co-defendants were either fugitives or pleaded guilty, the

case proceeded to trial solely against Franco.

     At   trial,   the   Government   presented   evidence   of   Franco’s

participation in a scheme in which runners recruited “victims” to

participate   in   staged   automobile    accidents;   medical    providers

generated false medical records and bills for the “victims”; law

office personnel, including Franco, used the false medical records

and bills to make claims against insurance companies on behalf of

the “victims”; proceeds from settlements were divided among the

participants in the scheme; and the medical clinics and law offices

made a second round of kickback payments to investors who had

financed the scheme.

     Franco testified. He admitted filing insurance claims, making

cash payments to runners, and paying and receiving kickbacks, but

denied knowing either that the accidents were staged or that the

claims were fraudulent.

     The jury convicted Franco for conspiracy to commit mail fraud,

but acquitted him on the money laundering conspiracy charge.

Franco was sentenced, inter alia, to 60 months imprisonment and was

ordered to pay approximately $2.7 million in restitution.

                                   II.

     Franco maintains that the district court violated its duty to

conduct the trial impartially; that it erred by refusing his

requested instruction on reasonable doubt; and that a Government

witness’ testimony should have been suppressed because it was

obtained in violation of 18 U.S.C. § 201(c)(2).


                                  - 2 -
                                       A.

      Franco, represented by the Federal Public Defender on appeal,

charges that the district judge deprived him of a fair trial by

unfairly criticizing Franco’s retained trial counsel, Raymond Jobe,

and   by    improperly    commenting    on    the   evidence   in   the   jury’s

presence.     Asserting that such comments and criticisms unfairly

prejudiced his defense, he points to the initially deadlocked jury

as demonstrating that the Government’s proof was not overwhelming.

      The    Government    counters     that      Jobe’s   disruptive     conduct

(repeated refusal to follow the district court’s instructions,

inappropriate and unfair comments in the presence of the jury,

unnecessarily formal and time-consuming objections, and use of

disingenuous tactics to confuse the jury) necessitated the court’s

actions in order the control the courtroom; that the comments on

the evidence were legitimate and appropriate to avoid unnecessary

confusion     of   the    jury   caused      by   Jobe’s   inappropriate     and

unprofessional tactics; and that Franco was not prejudiced, because

the court’s comments were directed at Jobe, not Franco.

      Federal district judges “have wide discretion with respect to

the tone and tempo of proceedings before them; they are ‘not mere

moderators or hosts at a symposium’”. United States v. Adkins, 741

F.2d 744, 747 (5th Cir. 1984) (quoting United States v. Perez, 651

F.2d 268, 271 (5th Cir. 1981)), cert. denied, 471 U.S. 1053 (1985).

             The trial judge has a duty to conduct the
             trial carefully, patiently, and impartially.
             He must be above even the appearance of being
             partial to the prosecution.     On the other
             hand, a federal judge is not a mere moderator
             of proceedings.    He is a common law judge

                                      - 3 -
           having that authority historically exercised
           by judges in the common law process. He may
           comment   on   the  evidence,   may   question
           witnesses and elicit facts not yet adduced or
           clarify those previously presented, and may
           maintain the pace of the trial by interrupting
           or cutting off counsel as a matter of
           discretion.   Only when the judge’s conduct
           strays from neutrality is the defendant
           thereby denied a constitutionally fair trial.

Id. at 747-48 (footnotes omitted) (quoting Moore v. United States,

598 F.2d 439, 442 (5th Cir. 1979)).              And, “even if the trial judge

does commit error in such a respect, the complaining party must

prove that the error was substantial and that it prejudiced his

case”. Id. at 748; see also United States v. Lance, 853 F.2d 1177,

1182 (5th Cir. 1988).

     Franco lists what he considers “the more egregious examples of

the trial judge’s remarks”.          We address each; but, of course, “in

determining   whether      a    trial    judge    overstepped      the   bounds    of

acceptable conduct–that is, violated his duty to conduct the trial

impartially–we      must   view    the    proceedings    as    a   whole”.        Id.

(internal quotation marks and citation omitted).

                                         1.

                                         a.

     First, Franco complains that his counsel’s insistence on

obtaining rulings on objections antagonized and irritated the

district   judge,    resulting      in    his    criticizing    counsel     in    the

presence of the jury.          Franco quotes the following colloquy:

                MR. JOBE:     I object             to   the    Court’s
           comments respectfully.

                THE COURT: Fine.              The record is clear,
           but just move ahead.

                                        - 4 -
                MR. JOBE: I apologize. I respectfully
           object to the Court’s comment as a comment on
           the weight of the evidence. Would ask for a
           ruling respectfully on that objection.

                THE COURT: No. You know you must not
           practice in federal court. You don’t have to
           ask. The rulings are automatic. What I’ve
           done, your record is clear and you’ve got a
           record, and you can appeal on it. You don’t
           have to make those kind of objections. This
           isn’t state court. Just proceed.

                  MR. JOBE:    Your Honor --

                THE COURT: Will you ask the questions,
           please, Mr. Jobe?

                MR. JOBE: Your Honor, I’m a poor lawyer,
           but I have to do what I think is best for my
           client. Respectfully I’m doing that. So I
           object to the Court’s not making a ruling on
           the objection. I’m going to proceed.

                  THE COURT:     Please do.       Please, please
           do.

     As   the    Government    notes,    Franco   omits     what    immediately

preceded this exchange.        Most of the defendants were Filipinos.

Jobe was cross-examining Arlene Patacsil, a Filipino co-defendant,

who had   just    testified    about    her   discussions    with    other   co-

defendants regarding staging automobile accidents.             The following

occurred immediately prior to the above-quoted comments:

           Q     [by Mr. Jobe] Is it your testimony to
           this jury that everybody that has any
           Philippine blood in them is guilty in this
           case?

                  [PROSECUTOR]:    Objection.

                THE COURT:     Now that is a totally
           inappropriate question, and you know that, Mr.
           Jobe....    Now just move on to another
           question. If you want to ask her if every law
           office manager who happens to be a Philippine
           name, that’s one thing.      But she’s never

                                   - 5 -
             insinuated nor has the government insinuated
             that everybody who’s Philippine is crooked.
             That’s obviously wrong.    There are lots of
             honorable Philippines in this country. That’s
             a slam on a race, and that’s not right.
             Question hard as you want about this case.

     Franco asserts that similar exchanges occurred throughout the

trial, with Jobe objecting, the district judge telling him, “Fine”,

or “Move along”, and Jobe objecting to the lack of a ruling.                    The

Government counters that Jobe’s insistence on the formalistic and

unnecessary procedures of Texas state courts, in disregard of the

district    court’s    instructions,       was    a   disingenuous   attempt     to

provoke the court’s displeasure and thereby seek to incur sympathy

from the jury.

     In any event, based on our review of the record, the district

judge did not criticize Jobe unfairly.                   Contrary to Franco’s

portrayal, the court’s criticism was not directed solely at Jobe;

the prosecutors were also admonished by the court on quite a few

occasions.     The example cited by Franco is merely one of numerous

instances    in   which    the   district     court    diligently,   and    quite

properly, exercised its prerogative to move the trial forward

expeditiously and efficiently.

                                       b.

     Next,    Franco      complains   of    the   following   comment      by   the

district judge to Jobe, in the jury’s presence:

             You know if you poor-boy me too much more,
             I’ll give you a chance to get another lawyer
             if you think you’re having that much trouble.

     As always, this comment must be considered in context.                     When

it occurred, Jobe had been examining the case agent, Clarke, called

                                      - 6 -
by   Franco   as     a   hostile   witness,   about   other   Government

investigators’ notes of their first interview with Franco’s co-

defendant, Arlene Patacsil. Jobe sought to establish that Patacsil

had not mentioned Franco in that interview. Although both Patacsil

and Clarke had been questioned previously about that subject, Jobe

persisted:

          Q    Well, you know strangely enough, I don’t
          know whether you noticed it, but I noticed it.
          Strangely   enough,    Ms.   Patacsil    never
          implicated my client until her lawyer wasn’t
          present. If you’ll look at these reports that
          you generated --

                   [Prosecutor]:   Is that a question?

          Q    (By Mr. Jobe) Yes, I’m going to ask you
          to confirm that. Confirm that for me if you
          would.

               We have this -- first, this is when you
          raided the clinic.    This is when you first
          raided the clinic. You said, do you have a
          lawyer at that time. I shouldn’t say “you.”
          When the government raided this clinic, that’s
          the first interview, and Ms. Patacsil doesn’t
          mention my client at all. You don’t dispute
          that, do you?

          A    Again, I wasn’t present during this
          interview. I was at a different clinic.

          Q    Sir, you can look at the record and
          determine whether you dispute that, can’t you?

          A        I can take time to review it.

          Q    Well, that’s all right.         Do you doubt
          that she did?

          A        I haven’t read the memo, sir.

          Q        You never read the memo?

          A        No, sir.



                                   - 7 -
Q    You mean before you interviewed Ms.
Patacsil, you never read the memo when you did
before?

A    No, sir, I just heard she had made some
incriminating statements and that she would be
somebody we would follow up on talking to.

Q    Go ahead and take your time. Do you see
in that first interview she even mentioned Mr.
Franco?

     [Prosecutor]: Your Honor, I’m going to
object at this point.    I think it’s been
established. It’s cumulative.

     THE COURT:   Sustained.

     MR. JOBE:    Your Honor, I cannot ask the
question?

     THE COURT: No, you’ve already asked it
several times, and he has told you. There’s
nothing in here where she puts the finger on
your client on the first interview. Let’s go
on.

Q    (By Mr. Jobe) February 20, 1996, this is
the interview where you –

     [Prosecutor]:   Objection, cumulative,
Your Honor. We’ve been over and over this.

     THE COURT:    Done the same thing.    Why
don’t you pick the one where you say, Mr.
Jobe, is the first time she tried to point the
finger at him and then let him dispute.

     MR. JOBE:  Well, Your Honor, I’m doing
the best job I can with what I’ve got. I’m
sorry if –

     THE COURT: You know if you poor-boy me
too much more, I’ll give you a chance to get
another lawyer if you think you’re having that
much trouble. Now go back to the stand and
ask the question, isn’t it a fact the first
time she put the finger on my client was at
the interview of blank date.

Q    (By Mr. Jobe) Isn’t it true that the
first time Ms. Patacsil put the finger on my

                     - 8 -
              client was at the interview on July 19, 1996?

      Considered in the context of the record, and especially of

Jobe’s repetitious questioning, the district court’s criticism was

not unwarranted; again, the court was more than justified in

attempting to move the trial forward.

                                          c.

      The next example cited by Franco also occurred during Jobe’s

examination of Agent Clarke.            When Jobe objected that the witness’

answer to a question was non-responsive, the court responded:

              No, you asked him an argumentative question.
              He gave you an argumentative answer. A pox on
              both of you.

Franco asserts erroneously that the “pox” comment was directed at

his counsel, not at the Agent.

      Again, Franco has taken the quoted remark out of context. The

Agent had testified previously that he had prepared summaries of

the   fraud       amount   based   on   the    intended   loss   –   the   initial

settlement demand to the insurance company, which he estimated at

three and one half times the amount of the medical bills.                  Jobe was

attempting to establish that the settlement demand was usually

larger than either the subsequent settlement or the actual loss.

              Q    You’re basing your calculation of fraud
              on what you have calculated is what, in your
              opinion, based on Ms. Patacsil and based on
              other sources, unidentified sources in the
              insurance industry, you believe these people
              may have wanted, right?    Is that what your
              testimony is in terms of a demand?

              A    That’s   correct.       It’s           [a]    very
              conservative figure at that.

              Q      Well, it doesn’t have anything to do with

                                        - 9 -
            the actual amount of the fraud, right?     I
            mean, it’s not based on any actual amount of
            fraud, the figure you’re putting it at?

            A    Again, that’s argumentative. Again, if
            an insurance company paid out six times of
            medical bills, I don’t think that Mr. Franco
            would have turned that down.

                MR. JOBE:    Object, non-responsive.

                 THE COURT:     No.  You asked him an
            argumentative question.    He gave you an
            argumentative answer. A pox on both of you.

                 Come on.   Let’s go.       You got any more
            questions, please.

     Jobe’s examination of the Agent prior to this exchange had

been extremely contentious, prompting the court to admonish both

Jobe and the witness on several occasions.            The district court

obviously recognized that those previous admonitions had been

ineffective; that the examination had degenerated into unproductive

argument between counsel and the witness. The court understandably

expressed its irritation with both the witness’ and counsel’s

disregard of its previous attempts to move the questioning into a

more productive area.

                                     d.

     The next example used by Franco is the court’s response to

counsel’s   request   for   Jencks   Act   material   during   his   cross-

examination of one of Franco’s co-defendants:

                 THE COURT: You know, that’s not a proper
            thing to do in front of the jury. You know
            that.   All you had to do was ask it at a
            recess, and we can get that.

Franco asserts that the Government had not objected to the Jencks

request but, nevertheless, the district court, sua sponte, pointed

                                 - 10 -
out the transgression and imputed bad faith to Franco’s attorney.

     Immediately prior to the challenged statement by the court,

Jobe interrupted his cross-examination of a witness to request the

Jencks material,   implying   both    that   it   existed   and   that   the

Government had failed to produce it:

               MR. JOBE: For the record, Your Honor, we
          have been provided with out of six meetings,
          only one statement.     I would like for the
          government to reassure me that there is no
          other out of all these other meetings, there’s
          no written Jen[c]ks material that I can
          review.

     In addition to being inappropriate in front of the jury,

Jobe’s request was more than just poorly timed; it violated the

district court’s prohibition of bench conferences during trial.

The court’s mild criticism of Jobe, and its subsequent reiteration

that matters to be taken up outside the presence of the jury were

to be handled during recesses, were quite appropriate responses to

Jobe’s extremely inappropriate comments and interruption of the

trial.

                                 e.

     The final presented example of allegedly unwarranted criticism

occurred when the prosecutor mistakenly referred to Franco as a

lawyer; the court immediately pointed out that Franco is not a

lawyer, and the prosecutor apologized for the mistake.

               MR. JOBE: Your Honor, if I could. We
          object ... to the interruption and correction
          there because of the fact, I mean, I don’t
          disagree.

               THE COURT: You know something, I run my
          courtroom. You just do your job as a lawyer
          and I’ll run my courtroom. And [if] I think a

                               - 11 -
          witness is making a mistake about one of the
          people in here, I’ll correct it. If you don’t
          like it, it’s okay. The record is there and
          you’ve got every objection. Now sit down and
          let’s go.

                MR. JOBE:    Your Honor, I object –

               THE COURT: Fine.       Now sit down.   I’ve
          told you to sit down.

                MR. JOBE:    Your Honor –

                THE COURT:    Sit down and zip your lip.

               MR. JOBE: Your Honor, I object to the
          comments on the weight of the evidence, and if
          I don’t make the objection now –

               THE COURT: Now, that is not right, and
          that is not the law.     And I’m telling you
          right now, don’t you interrupt me again. I’m
          doing something to make sure that these people
          understand exactly what’s going on.       Your
          client is not a lawyer, and I pointed that out
          to them. Now that, just there it is. It’s on
          the record. You don’t need to say anything.
          Proceed, please.

     After the jury had been excused at the conclusion of that

day’s testimony, the court allowed Jobe to make a record of his

objection.   Jobe asserted that, when the court stated that Franco

was not a lawyer, the court gave the witness information that the

witness did not have previously.    Franco also complains now about

the court’s comments during the exchange that followed:

               MR. JOBE:    Your Honor, with all due
          respect, my impression was that [the] Court
          was extremely hostile and upset with me, and I
          mean –

               THE COURT: That didn’t have anything to
          do with your questioning the witness.      You
          know, you have this idea that I have to sit
          here as a deaf mute and not say anything.
          First of all, you’re dead flat wrong. I have
          a right to comment on the evidence if I please

                                - 12 -
          to do so. I rarely do, and I haven’t done in
          this case other than on some occasions I’ve
          corrected some people and I corrected him on
          this one. If you want to cross-examine any of
          the witnesses about whether they know he’s a
          lawyer or not, fine, go right ahead and cross-
          examine to your heart’s content.

               Now, if you’ve got anything else you want
          to make a record on, make it right now.

               MR. JOBE:     Your Honor, I just say
          obviously if the Court takes the position –
          tells the witness that this man is not a
          lawyer, I think it’s pretty unlikely that the
          witness is going to disagree with the Court.
          That’s my position on that.     I don’t think
          that the witness in the face of the judge in
          this case telling him this is not true, that
          he’s going to persist in that as he might if I
          had questioned him without that.

               THE COURT: You want to prove that your
          client is a lawyer?

               MR. JOBE: I don’t want to prove he’s a
          lawyer. I want to prove the witness doesn’t
          know what he was talking about, Your Honor.

               THE COURT:    This witness we just had on
          the stand?

               MR. JOBE:    Yes.

               THE COURT: You’ve done a pretty good job
          of that already.

                MR. JOBE: I appreciate it. I don’t have
          quite the confidence that the Court does about
          that.

               THE COURT: All right. You got anything
          else you want to do? He’s back tomorrow. You
          can cross-examine him all you want about being
          a lawyer.

     Franco is not a lawyer.   Accordingly, the court’s correction

of the prosecutor’s misstatement was an appropriate means to avoid

confusing the jury.   While the district judge doubtless regretted


                               - 13 -
the unfortunate “zip your lip” remark, his comments to Jobe were

not unjustified, in the light of Jobe’s objection, his repeated

interruption of the court, and his refusal to comply with the

court’s instructions.

                                         2.

     Franco also maintains that two comments signaled to the jury

the district judge’s belief in Franco’s guilt.

                                         a.

     The first comment was made during the cross-examination of co-

defendant Patacsil, a physical therapist at DFW Therapeutic Clinic.

On direct examination, Patacsil testified that she worked closely

with Franco and discussed her preparation of fraudulent medical

records with him five to ten times per week for one and one-half

years.      On cross-examination, Franco’s counsel asked Patacsil

what Franco had told her about himself.                 When the Government

objected    to   the   relevance    of    the    question,   defense   counsel

responded that the witness ought to know something about Franco if

she had talked to him 1,000 times.              Patacsil interjected: “Yeah,

but we talked about business”.

     Her comment prompted the following exchange between the court

and Jobe:

                 THE COURT:  You know they talked about
            business.   The business, we know what the
            business is.     How to defraud insurance
            companies. That’s what she’s talking about.

                 MR. JOBE:   Your Honor, we’ll object to
            that comment as a comment on the weight of the
            evidence.

                  THE COURT:       No, I’m not talking about

                                    - 14 -
          comment on the weight of the evidence. She’s
          talking   about  defrauding   the   insurance
          company. Whether they did or not, these folks
          have to object [sic] to it.

The court “noted” the objection and instructed Jobe to “move

along”. Jobe then, once again, objected to the court not ruling on

the objection.

     Franco contends that the district court’s characterization of

the contents of Franco’s discussions with Patacsil as “how to

defraud insurance      companies”    improperly    answered   the   ultimate

question the jury was being asked to determine: whether Franco had

defrauded insurance companies.        We disagree.

     Patacsil,   who    testified    that    she   had   pleaded   guilty   to

conspiracy to commit mail fraud, had also testified extensively

about her involvement in preparing fraudulent medical bills and

records for Franco’s “clients”, which Franco forwarded to insurance

carriers and through which he obtained negotiated settlements. She

testified further that Franco handled her claim after she was

involved in a staged accident, using the name “Arlene Camaclang”;

that she had prepared fraudulent medical records signed by “Arlene

Patacsil” in which she purported to provide medical treatment for

“Arlene Camaclang”; and that Franco had submitted those records to

the insurance company, knowing that Patacsil could not perform

physical therapy on herself. Thus, the court summarized Patacsil’s

previous testimony accurately, but it properly left the question of

the truth of her testimony up to the jury.

     Moreover, Franco was not prejudiced by the court’s comments.

Immediately following the objection and challenged ruling, Franco’s

                                    - 15 -
counsel asked the witness whether all of her conversations with

Franco were about how to defraud insurance companies; the witness

responded that they were not, and that Franco usually was asking

her if the medical billings were done.

                                       b.

       The other example cited by Franco as illustrating the court’s

belief in Franco’s guilt occurred during the testimony of Manuel

Dadufalza, who explained how he and Franco would pay each other

cash kickbacks or “balik”, depending on which of them had purchased

the case from a runner.        Dadufalza testified that the kickbacks

were   usually   paid   in   cash;    and   that,   usually,   the   cash   was

exchanged in the law offices. The prosecutor asked Dadufalza, “And

why did you use cash to pay balik?”              Jobe interrupted, seeking

clarification of the question:         “Your Honor, I didn’t understand.

Was it why do you or why does he?”            The court responded, “I think

it was why did he”.     Franco asserts that the court then explained:

            From what I understand, it’s a matter of not
            getting the money on the books and it’s also
            illegal.

Contrary to Franco’s assertions (both in his brief and at oral

argument), that statement was made by the witness, not by the

court.    In any event, Jobe objected; and the following colloquy

occurred:

                 MR. JOBE:     Your Honor, I’m going to
            object   to   the   statement,   the   witness
            testimony, as far as what’s illegal–what’s
            legal and what’s illegal. That’s a state of
            the law, the Court’s prerogative, and instruct
            the jury what the law is.

                 THE COURT:     Well, it’s obvious it’s all

                                     - 16 -
              illegal.   You know when you’re trading cash
              back and forth on phony claims which he says,
              that’s illegal.    You don’t contend that’s
              legal do you?

                   MR. JOBE:    Your Honor, I don’t know
              enough about the specific circumstances of
              what   he’s   talking  about  to   make  a
              determination or not.

                   THE COURT:     Well, I will make a
              determination that when they have a phony
              claim and they start trading money back and
              forth between the doctors and the lawyers,
              that’s illegal.

       Franco contends that the court’s characterization of the

claims as “phony” and the payments as “illegal” was prejudicial.

But,   once    again,   Franco   does   not   provide   the   full   context.

Significantly, he omits the next statement by the district judge:

“That doesn’t have anything to do with your client unless they

prove your client is a part of it”.

       Considered in context, the judge’s comments do not reflect a

belief that Franco was guilty of the conspiracy charges. The judge

made clear to the jury that the Government would have to prove

Franco’s participation in the scheme.          In any event, because the

payment of “balik” was part of the basis for the money laundering

conspiracy charge for which the jury acquitted Franco, and not the

mail fraud conspiracy charge for which he was convicted, Franco was

not prejudiced by the court’s comments.

       During the charge conference, Jobe summarized his difficulties

with the district judge — the resulting claimed prejudice to his

client, Franco — as follows:

              To the extent that I have ... caused the Court
              to lose its temper with me, I think there’s

                                   - 17 -
          been at least five or six times the Court has
          yelled at me in the presence of the jury. To
          the extent that has been due to something I
          have done that justify [sic] that, I believe
          that it will materially influence the outcome
          of this trial. I find in my observation the
          jury has paid very close attention to the
          Court, and to the extent that my credibility
          is undercut by that, I think it’s extremely
          damaging to the defendant’s case....

Considering   the    record    as   a   whole,   we   conclude   otherwise.

Restated, the district judge did not violate his duty to conduct

the trial fairly and impartially.

     The examples cited by Franco were isolated instances.           Other

portions of the record, not cited by Franco, reflect that the judge

treated Jobe with respect.      It is clear that the court’s criticism

stemmed from its irritation with tactics, by both the prosecutors

and defense counsel, that slowed the pace of the trial or were

likely to confuse the jury.

     Moreover,      in   its    preliminary      instructions    prior   to

commencement of testimony, the court instructed the jury that

“nothing I may say or do during the course of the trial should be

taken by you as indicating what your verdict should be.           That is a

matter entirely up to you”.          Likewise, in its jury charge, the

court reminded the jury not to read “into anything the Court may

have said or done, any suggestion from the Court as to what verdict

you should return”.

     In sum, the record as a whole reflects that the trial was

conducted in a fair and unbiased manner.              We conclude that the

jury’s verdict was based on the evidence and was not improperly

influenced in any way by the conduct of the trial judge.          But, even

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assuming arguendo that the challenged remarks were improper, Franco

has not demonstrated that any error was substantial and that it

prejudiced his case.

                                B.

     As Franco concedes, our precedent forecloses his contentions

that the district court erred by denying his requested instruction

on reasonable doubt and by refusing to suppress the testimony of a

Government witness claimed obtained in violation of 18 U.S.C. §

201(c)(2) (crime to confer a benefit on a witness in exchange for

testimony).   See United States v. Williams, 20 F.3d 125, 128-32

(5th Cir.) (approving reasonable doubt instruction substantially

identical to that given in this case), cert. denied, 513 U.S. 891

(1994); United States v. Haese, 162 F.3d 359, 367 (5th Cir. 1998)

(§ 201(c)(2) not violated when testimony obtained in exchange for

favorable plea agreement), cert. denied, ___ S. Ct. ___, 1999 WL

241837 (1999).

                               III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




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