     Case: 11-50413     Document: 00511813900         Page: 1     Date Filed: 04/06/2012




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

                                                                            FILED
                                                                            April 6, 2012
                                     No. 11-50413
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL MELGOZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CR-900-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Daniel Melgoza, a detention officer at the Bexar County Detention Center
(BCDC), appeals his convictions for depriving a person of civil rights with bodily
injury while acting under color of state law in violation of 18 U.S.C. § 242 and
making false entries in a document with the intent to obstruct a federal
investigation in violation of 18 U.S.C. § 1519. Melgoza was convicted by a jury
of violating § 242 and § 1519 in relation to an assault on Joe Sanchez, an inmate
at the BCDC.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                      No. 11-50413

       Melgoza argues that the evidence was insufficient to support his
convictions. He asserts that the evidence presented at trial did not prove beyond
a reasonable doubt that he assaulted Sanchez, that he caused bodily injury to
Sanchez, or that he made false statements in his use-of-force report regarding
the incident. He maintains that there was no direct or physical evidence
showing that he kicked or struck Sanchez and falsely reported that he had not.
In support of this argument, Sanchez cites to favorable testimony given at trial
without mentioning unfavorable testimony. He maintains that the red mark on
Sanchez’s face could have been caused by Sanchez’s face being on the ground
while he was being restrained. The only challenges Melgoza makes to his § 1519
conviction are an argument that the evidence was insufficient to support that
conviction because there was insufficient evidence to prove that he kicked or
struck Sanchez and his recitation of his testimony that his use-of-force report
was truthful and accepted by his supervisor. He also suggests that the evidence
was insufficient to support his convictions because the jury’s verdicts were
inconsistent because he was acquitted on charges relating to an incident with
another inmate.1
       Four witnesses testified that Melgoza unnecessarily and repeatedly kicked
Sanchez in the face and head after he had been secured and had stopped
resisting. This evidence was sufficient to support Melgoza’s conviction under
§ 242 for willfully violating Sanchez’s constitutional rights by subjecting him to
excessive force. See United States v. Brugman, 364 F.3d 613, 616-18 (5th Cir.
2004). While Melgoza testified that he did not kick Sanchez or otherwise use
excessive force against him, the jury was free to reject this evidence and accept
the evidence of the other eyewitnesses. See United States v. Williams, 132 F.3d
1055, 1059 (5th Cir. 1998). Even if the jury’s verdicts acquitting Melgoza on


       1
        Because the evidence was sufficient to support Melgoza’s convictions assuming
arguendo that he properly preserved and briefed his claims, we do not reach the Government’s
arguments that Melgoza did not properly brief or preserve some of his claims.

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                                  No. 11-50413

charges regarding another inmate and convicting Melgoza of the offenses
regarding Sanchez were somehow inconsistent, this does not invalidate the
convictions because there was sufficient evidence to support the convictions. See
United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999).
      Sanchez testified that Melgoza’s kicks caused pain in his face, head, and
ribs. A nurse at the BCDC stated that Sanchez had redness on his cheek shortly
after the incident as a result of an injury. In the context of an officer assaulting
an inmate or suspect who is not fleeing or resisting, evidence that the inmate
suffered pain without any physical manifestation of injury is sufficient to prove
bodily injury. Brugman, 364 F.3d at 618-19. Accordingly, the evidence was
sufficient for the jury to find that the Government proved bodily injury. See id.
      In his use-of-force report, Melgoza stated that he stepped on Sanchez’s
hand because Sanchez had a pen in his hand, and he did not state that he kicked
Sanchez in the face or head. At trial, four witnesses testified that Melgoza
kicked Sanchez in the face and head, and two witnesses stated that Melgoza’s
report was false. Thus, while Melgoza testified that he did not make any false
statements, the jury was free to disregard this testimony and convict Melgoza
on the § 1519 violation based upon the testimony of the witnesses who
contradicted Melgoza’s testimony. See Williams, 132 F.3d at 1059.
      Melgoza argues that the district court abused its discretion by not granting
him a mistrial based upon juror misconduct relating to exposure to mid-trial
publicity. He asserts that the district court should have questioned all of the
members of the jury regarding their exposure to mid-trial publicity. Melgoza
merges a challenge to the denial of a mistrial with a challenge to the manner in
which the district court dealt with the problem juror.
      Melgoza moved for a mistrial based upon the possibility that a juror or
jurors could believe that the removed juror was dismissed because he was in
favor of Melgoza. Accordingly, we review this issue for abuse of discretion. See
United States v. Rasco, 123 F.3d 222, 230 (5th Cir. 1997). Melgoza, however, did

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not request that the district court question all of the jurors about their exposure
to mid-trial publicity or move for a mistrial on this ground. Accordingly, this
issue is reviewed for plain error only. See Puckett v. United States, 556 U.S. 129,
135 (2009).
      The newspaper article that one juror read did not mention any
inadmissible prior convictions, and Melgoza has not shown that the article was
actually prejudicial. See Rasco, 123 F.3d at 230-31. As the article was not
innately prejudicial and Melgoza was acquitted on two of the four counts against
him, Melgoza cannot show that the district court committed error, plain or
otherwise, by not questioning all of the members of the jury. See United States
v. Manzella, 782 F.2d 533, 541-43 (5th Cir. 1986).
      The record shows that only two jurors were exposed to the dismissed
juror’s comments that indicated that he favored Melgoza. Only one juror was
present when the district court made the comment indicating that the dismissed
juror might be incarcerated. The district court questioned both exposed jurors
about the dismissal of the juror. One of the jurors stated that the dismissal of
the juror would not affect her opinion on the merits of the case, and the other
stated that it would not affect his opinion because he did not know what had
happened. The district court then instructed the entire jury that it should not
consider in its deliberations that the juror was dismissed or why the juror was
dismissed. Given these facts, Melgoza has not shown that the district court
abused its discretion by not declaring a mistrial. See Milam v. United States,
322 F.2d 104, 110-11 (5th Cir. 1963).
      AFFIRMED.




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