     Case: 11-50541     Document: 00511859446         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-50541
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN ZAPATA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-636-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Ruben Zapata appeals his jury trial conviction of
being a felon in possession of a firearm. He argues that the district court, by
making disparaging remarks about his trial attorney in front of the jury, and by
making other remarks outside the jury’s presence, deprived him of a fair trial
and the effective assistance of counsel. Zapata did not contemporaneously object
to the district court’s remarks; however, he raised the judicial misconduct claim
advanced in the instant appeal in a motion for a new trial under Rule 33 of the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50541

Federal Rules of Civil Procedure. The district court addressed the merits of
Zapata’s claim and denied the new trial motion.
      The government asserts that Zapata’s new trial motion was untimely and
that, in view of Zapata’s failure to object to the district court’s remarks, review
should be for plain error. We need not address the timeliness issue because
Zapata fails to establish reversible error under the abuse of discretion standard
applicable to the denial of new trial motions. See United States v. Franklin, 561
F.3d 398, 405 (5th Cir. 2009).
      “[A] trial judge has enormous influence on the jury and therefore must act
with a corresponding responsibility.” United States v. Williams, 809 F.2d 1072,
1086 (5th Cir. 1987). Where a defendant asserts a claim of judicial misconduct,
we review to “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.
Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994) (citations omitted). We examine the
trial court’s actions in the context of the entire record. See United States v.
Saenz, 134 F.3d 697, 702 (5th Cir. 1998).
      We briefly summarize the allegedly disparaging remarks made before the
jury, which came during efforts by Zapata’s counsel to cross-examine the
government’s witness, Judy Larios, regarding her prior inconsistent statements.
As Zapata’s counsel attempted to play a tape recording that was not in evidence,
the district court commented “You know better than that.” When counsel argued
that an exception to the hearsay rule applied, the district court stated “I went
to law school before y’all were born, so don’t try to tell me that.” Finally, when
the district court ascertained that a recess would be necessary so that the
witness could refresh her recollection by listening to the 25-minute long
recording, it dismissed the jury for the day, commenting, “Obviously [we] have
a lack of preparation here.”
      The district court appropriately instructed the jury that it should
disregard anything it had said in determining Zapata’s guilt or innocence. We

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                                 No. 11-50541

have determined that a similar curative instruction operated against a finding
of constitutional error. See Bermea, 30 F.3d at 1571-72. To the extent that
Zapata complains of comments made outside the jury’s presence, our
examination discloses no objectionable remarks, and we note that the district
judge took reasonable steps to discourage defense counsel from interrupting him
and from arguing evidentiary issues in front of the jury. “Federal 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) (internal quotation marks and citation
omitted). Moreover, Zapata has not shown that the district court’s remarks
resulted in any substantial prejudice. See Bermea, 30 F.3d at 1571. In sum,
Zapata has not shown reversible error, either with respect to the denial of his
motion for a new trial or on his claim of judicial misconduct. See Franklin, 561
F.3d at 405; Bermea, 30 F.3d at 1571; Williams, 809 F.2d at 1091.
      Zapata also contends that 18 U.S.C. § 922(g) is unconstitutional as an
improper exercise of Congress’s power under the Commerce Clause. As Zapata
concedes, his argument is foreclosed by our precedent. See United States v.
Rawls, 85 F.3d 240, 242 (5th Cir. 1996).
      AFFIRMED.




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