
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2013                                    UNITED STATES,                                      Appellee,                                          v.                          MANUEL GONZALEZ-SOBERAL, AKA RAUL,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                           and DiClerico,* District Judge.                                           ______________                                _____________________               Rafael F. Castro Lang for appellant.               _____________________               Jos   A.  Quiles-Espinosa, Senior  Litigation  Counsel, with               _________________________          whom  Guillermo Gil,  United States  Attorney, and  Nelson P rez-                _____________                                 _____________          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for          ____          appellee.                                 ____________________                                    March 26, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA,  Chief  Judge.   Defendant-appellant  Manuel                    TORRUELLA,  Chief  Judge.                                ____________          Gonz lez-Soberal  ("Gonz lez-Soberal")  was  convicted   on  four          counts:  (1)  conspiracy to  possess  with  intent to  distribute          multi-kilogram  amounts  of  cocaine;  (2)distribution  of  eight          kilograms  of cocaine on  October 13,  1991; (3)  distribution of          nineteen  kilograms  of  cocaine on  October  20,  1991;  and (4)          distribution of  twenty-nine kilograms of cocaine  on October 27,          1991.   He  now appeals,  claiming errors  in the  jury selection          process, the jury instructions,  and in the actions of  the trial          judge,  including sentencing.   Finding  no reversible  error, we          affirm.   We  deal with  each claim  in turn,  discussing factual          details as they become relevant.                                  I.  Jury Selection                                  I.  Jury Selection                    Appellant makes  three claims with respect  to the jury          selection.   First, he argues  that the district  court committed          reversible  error when  it removed  juror number  9.   Second, he          submits that the failure to remove juror number 45 for failure to          adequately  speak  and  understand  English  was also  reversible          error.  Finally, he contends that the district court's failure to          remove juror number 1 for cause was reversible error.                    A.  Juror Number 9                    A.  Juror Number 9                    Federal  Rule of  Criminal  Procedure  23(b) permits  a          trial judge to excuse a  juror for just cause if the  judge finds          it necessary to do  so.  Fed. R. Crim.  Proc. 23(b).  "The  trial          judge   has   substantial    discretion   in   exercising    this          responsibility  and may remove the juror when 'convinced that the                                         -2-          juror's abilities to perform his duties [have] become impaired.'"          United States v.  Walsh, 75  F.3d 1, 5  (1st Cir. 1996)  (quoting          _____________     _____          United States v. Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992)).          _____________    ________                    The  circumstances  under  which  juror  number  9  was          removed  are  as follows.   While  the  judge was  delivering the          charge,  there was  a  disruption in  the  jury box.   The  judge          summarized the incident as follows:                         I remember  juror  number 9  from  her                      impaneling   questions,   she's  a   very                      intelligent  woman,  she's an  economist.                      Her  husband works  at the  Department of                      Treasury.    She's --  she's  --  she's a                      person  with a  lot of  education, formal                      education.   But I  do think that  what I                      saw here in court  today was not a normal                      reaction.  That is not a normal reaction.                         It's  entirely   possible  that  she's                      having  some sort  of problem  that she's                      not even aware of.  But what she did, she                      interrupted the jury charge, and as if we                      were not here, as if she was alone with -                      - with  a juror  that is sitting  next to                      her,  she started a conversation with him                      in a loud tone of voice.  She  started to                      touch this juror, tried to  take his name                      tag   off  of  his  clothing,  asked  him                      questions  about the  problems, something                      around his neck or I don't know what.                         I stopped, listened, watched,  did not                      make an issue.   And when I  asked her up                      here, when  I asked  her up here  she did                      not remember what had happened, actually.                      She  could not  remember the  reasons why                      she  interrupted  the   jury  charge   or                      started to touch her  neighbor.  And I --                      I honestly think that  she has a problem.                      I don't  know what  the problem is.   She                      has some  sort of problem with  her.  Not                      only that, but some of the jurors have --                      some of the  jurors have expressed  their                      concern about  her ability to  be sitting                      in this jury.                                         -3-          Tr. II at 449-50.                    Based  on  his  observation  of the  incident  and  his          subsequent  investigation,  the  judge  decided to  excuse  juror          number 9  and to  substitute one  of  the alternate  jurors.   He          offered defense counsel the opportunity to choose between the two          alternate jurors, and counsel chose alternate number 1.                    The judge then  asked juror  number 9  to approach  the          bench and  explained to  her his  intention to  excuse her.   She          stated that she  had found the  case very difficult and  that she          felt  compassion  for  those  involved.   Upon  questioning,  she          responded  that she had not  slept well the  night before because          she had  been thinking about the  case.  She also  told the court          that  she took medication to control her epilepsy.  The following          colloquy ensued:                      The  Court:     Have  you  had  problems,                      seizures  and  things  like  that  in the                      past?                      Juror:  The people says.                      The Court:  People say that?                      Juror:   But I say that I have -- I don't                      have anything.                      The Court:  I see.                      Juror:  Because my reactions are normal.          Tr. II at 455-56.  And a few moments later:                      The Court:  Do you remember what prompted                      you to talk to your neighbor?                      Juror:  What you say?                      The Court:   When I  was instructing  the                      jury --                                         -4-                      Juror:  Uh-huh.                      The  Court:   -- You  decided to  talk to                      your next door neighbor.  Do you remember                      that?                      Juror:  No.                      The Court:  You don't remember that?                      Juror:  No.                      The Court:  I see.  And you tried to take                      his  name tag  away,  this one.   Do  you                      remember that?                      Juror:  No.          Tr. II at 456-57.                    Finally, in  explaining his  decision to the  jury, the          judge made the following remarks:                         I  noticed that when I was instructing                      you,  all  of a  sudden she  like blanked                      out, that  I was  watching.  She  was not                      here anymore and she turned to  the right                      to her neighbor, started  to talk to him.                      I  could  not  understand  what  she  was                      saying.   It  didn't  seem  to have  much                      logic  to what she was saying, the words,                      and  then  she grabbed  his name  tag and                      said  something  about,  "what's on  your                      neck,"  or  something along  those words.                      She doesn't remember that.                         She   is   --   she's    taking   some                      medication.  I think she has some sort of                      problem,  physical  problem.   She  takes                      medication, anticonvulsive medication.  I                      honestly hope that she's  okay.  But I do                      think  that  under  the circumstances,  I                      think it would be unfair -- I don't think                      it would be right for me to  leave her in                      the  -- in the jury panel, because that's                      not right.          Tr. II at 459-60.                                         -5-                    In light of all of the above, we do not find reversible          error in the decision to excuse the juror.  There was significant          evidence  that juror number  9 was no longer  able to perform her          duties.   Considering the deference that we must accord the trial          judge in  matters such  as this  one, we  affirm the  decision to          remove the  juror.   We add  that there is  no evidence  that the          judge's  decision was influenced by the juror's view of the case.          Although the juror stated that she found the case to be difficult          and that she  had "compassion for these people,"   Tr. II at 453,          these  statements were made after the judge had decided to remove          her  from the  jury.   Furthermore,  they  do not,  as  appellant          contends,  demonstrate  that "she  had  reasonable  doubts as  to          whether or not  appellant should be  found guilty."   Appellant's          Brief  at  15.   A juror  might find  a  case difficult  for many          reasons,  and   to  conclude   that  she  favored   acquittal  is          speculative.                    Our decision is  consistent with this court's  decision          in United  States v.  Molinares Charris,  822 F.2d  1213, 1222-23             ______________     _________________          (1st Cir. 1987) in which we upheld the decision to excuse a juror          whose health appeared  to be at  risk.  The  juror was  obviously          distressed by  the proceedings and  had taken  a tranquilizer  in          order to calm her nerves.                    Similarly, in the instant case, the judge was concerned          with  the juror's  health.    After  an  investigation  into  the          situation,  the judge felt  that the stress of  the trial posed a                                         -6-          risk to the juror's  health and that  her ability to perform  her          duties had been compromised.                    As we stated in Molinares Charris, "[w]e should  not be                                    _________________          quick to second guess a trial judge, who was in a better position          than  we are  to assess  the severity  of the  situation.   After          making  careful inquiries, and recognizing her responsibility for          the well-being of those called upon to serve the court, the judge          decided that  the risk to the juror's health was too great."  Id.                                                                        ___          at 1223.                    B. Juror Number 45                    B. Juror Number 45                    Appellant next claims that the district court committed          reversible  error by failing to  remove juror number  45.  During          the investigation of  juror number 9, the judge interviewed juror          number 45.  The exchange went as follows:                      The Court:  Your name and number, please.                      Juror:   My  name  is Byron  Chique.   My                      number on the list is 45.                      The  Court:   You  have  noticed anything                      wrong  with  the  lady  that  started  to                      talking in a loud tone of voice?                      Juror:  Yes.  Yes.                      The Court:  What have you noticed?                      Juror:   Talking  in English,  it's  very                      difficult  to  explain to  you,  but this                      morning not too much important but she --                      she say  -- I  can't explain  in English.                      It's very difficult.                      The Court:   Which  word are you  looking                      for?                      Juror:  Let me say --                                         -7-                      The Court:   Which  word are  you missing                      that  you cannot  --  I'll give  you  the                      word.                      Juror:  I can say it in Spanish.                      The Court:  What is the word?                      Juror:  (In Spanish)                      The Court:   Jaime, there is  a word that                      he  is  having a  problem  with  he can't                      explain.                      Juror:  (Conferring withthe interpreter.)                      Interpreter:   I told  the lady --  I was                      talking  to the  lady this morning  and I                      told  her and  she  was --  she was  like                      expectant, she was hesitant in her -- her                      actions.                      Juror:  Yes.                      The  Court:   It struck you  as something                      abnormal?                      Juror:  Not normal, not exactly normal.                      The Court:  Not normal?                      Juror:  No.                      The Court:  Okay.  What was your reaction                      then when  you saw her speak  the way she                      did in  open court  in the middle  of the                      charge  and  start  to  fix  the  --  her                      neighbor's name tag?  You saw that?                      Juror:  Would you repeat, please?                      The Court:   You saw -- you saw  her when                      she grabbed her  neighbor's name tag  and                      tried to --                      Juror:  Yeah.                      The Court:  -- fix it?                      Juror:  I see -- I see that is not in his                      body.  his body -- she -- likes to sleep.                      (Confers with interpreter)                                         -8-                      Interpreter:    She  seemed  to  be  like                      asleep, like she was sleepwalking.                      The Court:  Oh, I see.  Okay.  Thank you.          Tr. II at 443-46.                    Appellant's counsel  then stated  that he  had concerns          about  juror  number  45's  knowledge and  understanding  of  the          English  language.    The  district  court  disagreed.    Shortly          thereafter,  counsel again  raised the  question of  juror number          45's proficiency in English.  The judge responded:                      Number  one, Mr.  Chique was  examined in                      English by me.  There is a piece of paper                      that I gave these people for them to talk                      to me in English when I'm selecting them,                      and   he  was  able  to  express  himself                      clearly in  English.  I have  no doubt in                      my mind.                         I  can  tell  you  something,  .  .  .                      whenever I have the slightest doubt about                      somebody's  English, not only do I excuse                      that person  from the panel,  I eliminate                      the person  from the list,  from the jury                      pool   completely.    I  don't  take  any                      chances with that.                         He   was   looking    for   a    word,                      "sleepwalking," and that is not a concept                      that you deal with every day.  And he was                      pretty   nervous.    He  was,  you  know,                      nervous up  here trying to explain  to me                      something,  and that's  why he  could not                      find the word.                         He's     perfectly      capable     of                      understanding the evidence in  this case.                      I don't have a  problem with that at all.                      And  if I  had, believe  me, he  wouldn't                      even  be  on  the  jury  to  begin  with,                      because I don't take chances with that.          Tr. II at 449.                                         -9-                    A trial  judge has substantial discretion  to determine          when jurors  should be  removed for  cause.   We are hesitant  to          reverse  the  reasoned  conclusion  of  the  trial  judge on  the          question  of a juror's ability  to understand English because the          trial judge is  in a much better position to  assess the language          competency  of a  particular juror.   See Molinares  Charris, 822                                                ___ __________________          F.2d at 1222-23; Walsh, 75 F.3d at 5.                           _____                    In  the instant case, the juror in question had met the          statutory linguistic competency standard under the Jury Selection          and Service Act, 28 U.S.C.   1865, and had undergone voir dire --          during which defense counsel had  the opportunity to question the          juror.                    Although   those  portions  of  the  transcript  quoted          suggest that the juror's command of the English language was less          than that of a native speaker, they do not warrant the conclusion          that the juror was unable to follow the proceedings or understand          the evidence  and therefore do  not merit reversal.   In light of          our deferential  standard of  review and the  limited information          available  from the  transcript, we  cannot overturn  the judge's          decision  to retain  juror  number  45.   We  find  no  abuse  of          discretion.                    C.  Juror No. 1                    C.  Juror No. 1                    During voir dire, juror number 1 stated that his father          had  been  killed by  a drug  dealer  during a  holdup.   Defense          counsel sought to have the juror excused for cause.  The district          court, having  interviewed the  juror, determined that  he should                                         -10-          not be excused  for cause.  Defendant eventually  used one of his          peremptory challenges to strike the  juror.  Appellant now argues          that  the  juror should  have been  removed  for cause,  that the          failure  to  remove  the juror  forced  the  defendant  to use  a          peremptory challenge, and that this constitutes grounds for a new          trial.                    It  is  well  established  that  the  trial  court  has          considerable discretion in  ruling on challenges for cause.   See                                                                        ___          Dennis  v. United States, 339 U.S. 162, 168 (1950).  "Substantial          ______     _____________          deference  is due the trial court's exercise of its discretion in          handling   situations   involving   potential   juror   bias   or          misconduct."   United States v. Angiulo, 897 F.2d 1169, 1185 (1st                         _____________    _______          Cir.  1990).   "There are few  aspects of  a jury  trial where we          would be less  inclined to  disturb a trial  judge's exercise  of          discretion, absent  clear abuse, than in ruling on challenges for          cause in the  empaneling of a jury."  United  States v. McCarthy,                                                ______________    ________          961  F.2d 972, 976 (1st Cir. 1992) (internal quotations omitted).          "We review a trial judge's exercise of discretion in empaneling a          jury for 'clear abuse.'"  United States v. Bartelho, 71 F.3d 436,                                    _____________    ________          443 (1st Cir. 1995).                    In the  instant case, after  the juror stated  that his          father had been killed by a drug dealer, the judge asked: "Do you          believe  that even though  this happened  within your  family you          could  still be a judge of  the facts in a drug  case and be fair          and impartial?"  Tr. I at 11A.  The juror responded "yes, I can."          Tr.  I at  11A.   Following an exchange  with counsel,  the judge                                         -11-          decided to leave the  juror on the  panel, citing as reasons  the          fact that the  juror, when  asked if he  could be impartial,  had          been  extremely  assertive  in  his  answer,  and  that   he  was          intelligent.                     Nothing in either the record or the  parties' briefs on          appeal suggests that the  trial court's decision to retain  juror          number  1 was  grossly  in  error.   The  judge appears  to  have          concluded, after considering  the suitably of the juror,  that he          could remain  on the panel.   Neither a  lack of judgment  on the          part of the  judge nor  prejudice toward the  defendant has  been          demonstrated.  We find no "clear abuse."                    Because  we find no clear abuse  in the judge's refusal          to remove the juror,  we need not address the question of whether          forcing  the appellant to  use a peremptory  challenge is grounds          for a new trial.                                II.  Jury Instructions                                II.  Jury Instructions                    A.  Appellant's Requested Jury Instruction                    A.  Appellant's Requested Jury Instruction                    Appellant next claims that the district court committed          reversible  error when  it failed  to give  appellant's requested          instruction  concerning  the impeachment  of  witnesses by  prior          conviction.                    In  considering  challenges to  jury  instructions, the          refusal to give a requested instruction is  reversible error only          if  "the instruction  (1) is  substantively correct; (2)  was not          substantially  covered in  the charge  actually delivered  to the          jury;  and (3) concerns an  important point in  the trial so that                                         -12-          the failure to give it seriously impaired the defendant's ability          to  effectively  present a  given  defense."   United  States  v.                                                         ______________          Gibson,  726  F.2d  869  (1st  Cir.  1984)  (internal  quotations          ______          omitted).  The charge "need not follow the exact form and wording          of the defendant's proposed instructions."  Id.                                                      ___                    In  the  instant   case,  Gonz lez-Soberal  sought  the          following instruction:                      You  have  been  told  that  the  witness                      _______ was convicted  in 19__ of  [e.g.:                      armed robbery].  A conviction is a factor                      you  may consider in  deciding whether to                      believe  that  witness, but  it  does not                      necessarily    destroy   the    witness's                      credibility.  It has been brought to your                      attention  only because  you may  wish to                      consider it  when you decide  whether you                      believe the witness's testimony.          Appellant's Proposed Jury Instruction #1.12.                    The jury instructions delivered by the  court, although          they did  not contain this  precise instruction, did  include the          following language:                         You  have  heard  testimony   from  an                      unindicted  co-conspirator,  Mr.  William                      Negr n  Zapata, and  from a  defendant in                      this  same case  who,  as you  know,  was                      tried  earlier,  Willy  Maya Acosta,  who                      have   --   who  both   have  cooperation                      agreements  with  the  government.    The                      testimony by Mr. Negr n Zapata  was given                      in   exchange  for   a  promise   by  the                      government that he will not be prosecuted                      for some crimes he  admittedly committed,                      including  the ones  in this  case.   The                      testimony  by Willy Maya Acosta was given                      in order to hopefully receive a reduction                      of sentence on account of cooperation.                         In  evaluating   this  testimony,  you                      should  consider  whether that  testimony                      has been influenced  by the  government's                                         -13-                      promise,  and  you  should consider  that                      testimony with greater caution  than that                      of ordinary witnesses.   Such  agreements                      are  legal.   The law only  requires that                      you consider testimony given  under those                      circumstances  with greater  caution than                      that of ordinary witnesses.          Tr. II at 406-07.                    Although the  instructions given  by the judge  did not          contain  the specific  instruction  sought  by  Gonz lez-Soberal,          "there is  not reversible  error if  the jury  charge taken  as a          whole substantially covered the issues contained in the requested          instruction."  Angiulo, 897 F.2d at 1207.                         _______                    Having reviewed the instructions  given to the jury, we          conclude that  they substantially covered  issues of  credibility          with  respect to the witnesses  in question.   The judge reminded          the jury that the two witnesses had been  convicted and that they          had  cooperation  agreements  with   the  government.    He  gave          instructions concerning the credibility of witnesses, telling the          jury  that they should view the testimony of these witnesses with          greater caution than the testimony of an ordinary witness.  There          is no  reason to  believe that  the jurors  were misled  by these          instructions, or that they believed it impermissible to view with          additional skepticism  the testimony  of witnesses who  had prior          convictions.    Accordingly, we  find  no  error  in  these  jury          instructions.                    B. Reasonable Doubt                    B. Reasonable Doubt                                         -14-                    Gonz lez-Soberal  also  claims that  the  trial court's          jury  instructions  regarding   reasonable  doubt   impermissibly          reduced the government's burden of proof.                    In his initial instructions to the jury, the judge made          the following remarks:                         Second.  The burden of proof is on the                      government  until  the  very  end  of the                      case.   The  defendant has  no  burden to                      prove  his innocence  or  to present  any                      evidence  or  to  testify.     Since  the                      defendant has the right to remain silent,                      the law prohibits you in arriving at your                      verdict  from   considering  whether  the                      defendant may or may not have testified.                         Third.   The  government must  prove a                      case  against  the  defendant   beyond  a                      reasonable  doubt.     I  will  give  you                      further  instructions at  the end  of the                      case, but in this sense be mindful, those                      of you  who participated in  civil cases,                      that the standard is  different.  In  the                      civil case we say a plaintiff prevails if                      he proves  a case  by a  preponderance of                      the evidence.   In the  criminal case the                      situation we say the  government prevails                      if it proves  a case beyond  a reasonable                      doubt.                         If  I  were to  graphically illustrate                      for  purposes  of  an  initial  charge or                      instruction so you have an idea what  I'm                      talking about, I would  say this.  In the                      civil case if  we bring a  balance, scale                      of   the  type  used  in  old  drugstores                      before,  not  any   more,  you  will  put                      evidence - in the civil  case plaintiff's                      evidence  on  one   of  the  plates   and                      defendant's  evidence  on the  other, you                      will see  how well  the reaction is.   If                      the scale just starts moving a little bit                      to  the  plaintiff's side,  the plaintiff                      has prevailed.  That is  preponderance of                      the evidence.                         When  we  say  "beyond   a  reasonable                      doubt," proving a defendant guilty beyond                                         -15-                      a  reasonable  doubt, by  the  very words                      we're implying that  the government has a                      heavier burden  than the one that  I just                      described.      Because   liberties   are                      involved, it's a  different kind of case,                      therefore  the   government's  burden  is                      heavier than that and I will explain that                      at the end of the case.          Tr. I at 11-13.                    At  the  end of  the case,  the  judge returned  to the          reasonable doubt issue:                         The presumption of innocence  alone is                      sufficient to find him not guilty and can                      only be overcome if the government proves                      beyond  a reasonable doubt each and every                      essential element of the crimes charged.                         And  what  is  reasonable  doubt?    A                      reasonable  doubt is  a doubt  based upon                      reason and  common  sense and  may  arise                      from    a     careful    and    impartial                      consideration of all the evidence or from                      lack   of  evidence.     Proof  beyond  a                      reasonable doubt is proof that leaves you                      firmly  convinced  that the  defendant is                      guilty.                         If,  after  a  careful  and  impartial                      consideration with your fellow  jurors of                      all the evidence,  you are not  convinced                      beyond  a  reasonable   doubt  that   the                      defendant is  guilty, it is your  duty to                      find the defendant not guilty.          Tr. II at 418-19.                    This  court has  cautioned against  the risks  that can          accompany attempts to define reasonable doubt.  See United States                                                          ___ _____________          v. And jar,  49 F.3d  16, 23 (1st  Cir. 1995);  United States  v.             _______                                      _____________          Campbell,  874 F.2d  838,  843 (1st  Cir.  1989).   Nevertheless,          ________          attempts to define reasonable doubt do  not necessarily result in          reversible error.  And jar, 49 F.3d at 23.  We have said that, in                             _______                                         -16-          our  experience, even  imperfect formulations,  usually meet  the          constitutional  requirements when  viewed in  the context  of the          entire charge to the jury.                    When we review a trial court's definition of reasonable          doubt, our concern is whether the instructions have a tendency to          reduce the government's  burden of proof at trial.   Id.  We will                                                               ___          find instructions erroneous when,  taken as a whole, they  have a          reasonable  likelihood of leading the jury to believe that it can          convict on some lesser standard of proof than that required under          the reasonable doubt standard.   See United States v.  Romero, 32                                           ___ _____________     ______          F.3d 641, 651 (1st Cir. 1994).                    Having  reviewed  the  instructions  in  this  case, we          believe that there  is no reasonable likelihood of misleading the          jury.  The judge explained  that the burden of proof is  entirely          on  the government, and that  the government must  prove its case          beyond a reasonable doubt.   The judge contrasted  the reasonable          doubt standard with the preponderance of the evidence standard in          order to avoid any confusion in  the minds of jurors who may have          served on civil  juries in the past.  At the end of the trial, in          his  final instructions,  the judge  repeated that  the defendant          must  be presumed  innocent  and that  the government  must prove          guilt  beyond a reasonable doubt.  Nothing in the judge's attempt          to  define reasonable  doubt was  likely to  mislead the  jury or          suggest  that the government's burden  of proof is  less than the          reasonable doubt standard.                                   III. Fair Trial                                   III. Fair Trial                                         -17-                    Appellant   next   claims  that   the   district  court          "repeatedly questioned witnesses on his own in a manner that made          him  a  partisan  of  the  government's  case  thereby  depriving          appellant  of   his  constitutional  right  to   a  fair  trial."          Appellant's Brief  at  33.   Appellant alleges  that the  judge's          questions   served  to  bolster  the  credibility  of  government          witnesses  and undermine  that of  defense witnesses.   Appellant          also  argues  that  the  judge improperly  raised  objections  to          appellant's attorney's questioning and  that he elicited improper          hearsay from a witness.                    It  is well settled that the trial judge has "a perfect          right -- albeit a right that  should be exercised with care -- to          participate  actively in the trial  proper."  Logue  v. Dore, 103                                                        _____     ____          F.3d 1040  (1st Cir. 1997).  A trial judge retains the common law          power to question witnesses and to comment on the evidence.  Id.;                                                                       ___          see  also  Fed.  R.  Evid.  614(b) ("The  court  may  interrogate          _________          witnesses, whether called by itself or by a party.").  There are,          however, limits to the behavior that is permitted judges.  "[F]or          example, the  judge's participation  must be balanced;  he cannot          become  an  advocate or  otherwise  use  his judicial  powers  to          advantage  or disadvantage a party  unfairly."  Id.   "An inquiry                                                          ___          into  the judge's conduct of  the trial necessarily  turns on the          question  of  whether  the  complaining party  can  show  serious          prejudice."  Id.                       ___                    In his  brief,  appellant cites  several  instances  of          alleged  bias on behalf of  the judge.   After careful review, we                                         -18-          conclude that these instances  were no more than attempts  by the          judge to clarify questions, speed the proceedings, or ensure that          all information is before the jury.  We see no need  to recite at          length  from  appellant's  brief,  choosing  instead  to  comment          briefly on his allegations.                    Appellant   asserts  that   the  judge   bolstered  the          credibility of government  witnesses on two  occasions.  We  have          reviewed  the   relevant  testimony  and  consider   the  judge's          questioning to be  no more than an effort to  make clear that the          witnesses  were  testifying under  cooperation agreements  and to          impress on the witnesses the fact that they were required to tell          the truth.                    Another instance  cited by appellant was  a decision by          the judge to overrule  an objection by appellant's counsel.   The          government  was introducing  a photograph  that included  certain          markings.    Defense counsel  objected  on the  grounds  that the          markings  contaminated  the  photo.     At  a  bench  conference,          appellant's counsel  stated that he understood  that the markings          were  made during  the  trial  of  co-conspirators and  that  the          witness  could easily make the same markings on an unmarked photo          if one  were  available.    The judge  overruled  the  objection,          stating to the jury that he knew what the marks were and that the          marks  were  explained to  counsel.    Appellant claims,  without          elaboration,  that  these  comments  amount   to  bolstering  the          government's evidence.  We disagree.                                         -19-                    As for the  claims that the  judge sought to  undermine          defense  witnesses  and  defense  counsel, we  find  them  to  be          meritless.  In both instances identified by appellant,  the judge          was merely attempting to move the trial along without unnecessary          delay  and the judge's  comments cannot  be taken  to demonstrate          bias.  See  Logue, 103 F.3d at 1045; Deary  v. Gloucester, 9 F.3d                 ___  _____                    _____     __________          191, 194-95 (1st Cir. 1993).                    Finally,  appellant  argues  that  the  judge  elicited          hearsay  evidence during  testimony.   Following an  objection on          hearsay grounds, the judge asked the witness, Negr n-Zapata, "Who          told you that Chanci had said or that Chanci would -- If we would          find kilos he  would -- he would keep  them?"  When Negr n-Zapata          replied  that Mr. Arroyo had  told him this,  the judge sustained          the  objection.   Even  if  it  were  determined  that  this  was          improperly admitted hearsay, it would be harmless error.  Nothing          in the judge's remarks or the witness's brief response was in any          way prejudicial to  the defendant.   The comments  simply do  not          relate  to the  defendant,  implying that,  if  error, they  were          harmless error.                                   IV.  Sentencing                                   IV.  Sentencing                    Gonz lez-Soberal argues that  the trial court committed          error when it  refused to grant  a two-point "minor  participant"          reduction in  his offense level  on the  basis of his  role as  a          courier.1  "We will  reverse the district court's finding  that a                                        ____________________          1  Section 3B1.2 of the Sentencing Guidelines states:                                         -20-          defendant  is not a  minimal or minor  participant only if  it is          clearly  erroneous."  United States  v. Paz Uribe,  891 F.2d 396,                                _____________     _________          399 (1st Cir. 1989); see  also United States v. Garc a, 954  F.2d                               _________ _____________    ______          12, 18 (1st Cir.  1992) ("[W]e review a sentencing  court's role-          in-the-offense  determination  only  for  clear  error.").    The          defendant bears  the burden of  proving that he is  entitled to a          downward  adjustment for  his role  in the  offense.   See United                                                                 ___ ______          States v. Ortiz, 966 F.2d 707, 717 (1992).          ______    _____                    Appellant's  claim fails  on  two independent  grounds.          First,  he  argues  that  "[t]he trial  evidence  indicates  that          appellant was a mere courier of money and narcotics," Appellant's          Brief at 42, yet he points to no testimony or evidence to support          the assertion  that his role was  limited to one of  courier.  He          refers  to  only  one statement  made  by  the  trial judge,  who          commented  that "the evidence has shown so far that the defendant          was a  money courier."  Tr. II  at 481.  This  is insufficient to          meet  the defendant's burden  in this case,  and is unconvincing.          During sentencing, the judge's comments, taken in their entirety,          do not  suggest that  the judge  viewed the  defendant as  a mere          courier.  For example, the  judge stated "I do not think  that he          was  other than  a regular  drug dealer  that was  arranging drug                                        ____________________                      Based  on  the  defendant's role  in  the                      offense,  decrease  the offense  level as                      follows:                      . . .                      (b)   If  the   defendant  was   a  minor                      participant  in  any  criminal  activity,                      decrease by two levels.          United States Sentencing Guidelines   3B1.2.                                         -21-          transactions like  everybody  else was."    Tr. II  at  481.   In          addition,  the court  made it  clear that  it had  considered the          defendant's  role in  the  offense, stating  that "the  court has          considered  his  role  . .  .  in  the  context of  the  relative          culpability of the different defendants that participated in this          particular  conspiracy.   And I  will not  make an  adjustment on          account of role."  Tr. II at 488.                    Second, even if it  was shown that Gonz lez-Soberal had          been  no more  than  a courier,  he  would not  automatically  be          entitled to a  reduction.   See United States  v. L pez-Gil,  965                                      ___ _____________     _________          F.2d 1124, 1131 (1st Cir. 1992); Paz Uribe, 891 F.2d at 399.   "A                                           _________          defendant  has  the  burden  of  proving  entitlement  to such  a          downward  adjustment,   and  can   only  prevail  on   appeal  by          demonstrating that  the district court's determination  as to his          role  in the offense was clearly erroneous."  L pez-Gil, 965 F.2d                                                        _________          at  1131  (citations omitted).   Appellant  fails to  present any          reasons why, on the facts of this case, he should be granted such          a reduction.  Therefore,  even assuming, arguendo, that appellant          was able to establish that he was merely a courier, he has failed          to carry  his burden of showing that he is entitled to a downward          adjustment.                    In  light of  the above  analysis, and  the deferential          posture we  take  toward role-in-the-offense  determinations,  we          find no clear error in the district court's sentencing.                                    V.  Conclusion                                    V.  Conclusion                                         -22-                    For the foregoing reasons, the decision of the district          court is affirmed.                   affirmed                   ________                                         -23-
