     Case: 08-40760 Document: 00511319883 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010
                                     No. 08-40760
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

BERTHA ADRIANA MENCHACA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:08-CR-48-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Bertha Adriana Menchaca appeals her convictions for: two counts of
transporting illegal aliens within the United States for financial gain, in
violation of 8 U.S.C. § 1324; and aiding and abetting, in violation of 18
U.S.C. § 2. Trial testimony revealed that Border Patrol agents stopped a vehicle
being driven by Menchaca’s codefendant and containing six illegal aliens hidden
in its cargo area. Testimony also established Menchaca rented the vehicle.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 08-40760 Document: 00511319883 Page: 2 Date Filed: 12/13/2010

                                   No. 08-40760

      Menchaca contends the district judge’s comments on the evidence during
the jury charge constituted structural error and deprived her of a fair trial
because they, in essence, directed a verdict on some elements of her charged
offenses.
      As Menchaca concedes, she did not object in district court to any of the
now-contested comments.        Because the claimed errors do not amount to
structural error, they are amenable to, and we apply, plain-error review. See
Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008) (instructional errors not
structural unless they “vitiate all the jury’s findings”) (quoting Neder v. United
States, 527 U.S. 1, 11 (1999)) (emphasis in original) (internal quotation marks
omitted); United States v. Inocencio, 40 F.3d 716, 728-29 (5th Cir. 1994) (“‘When
no party objects at trial to a jury instruction, we will uphold the charge absent
plain error.’”) (quoting United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994)).
      For plain-error review, we “may, in [our] discretion, correct an error not
raised at trial only where the appellant demonstrates that (1) there is an ‘error’;
(2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3)
the error ‘affected the appellant’s substantial rights, which in the ordinary case
means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the
error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings’”. United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting
Puckett v. United States, 129 S.Ct. 1423, 1429 (2009)).
      The district court is not limited to abstract instructions and may “assist
the jury in arriving at a just conclusion by explaining and commenting upon the
evidence, by drawing their attention to the parts of it which [it] thinks
important, and [it] may express [its] opinion upon the facts, provided [it] makes
it clear to the jury that all matters of fact are submitted to their determination”.
Quercia v. United States, 289 U.S. 466, 469 (1933). “While the [district] court
may under no circumstances withdraw any element of an offense from the jury’s
consideration in a criminal case, the judge may comment on the evidence, so long

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as he instructs the jury that they are not bound by his comments.” Inocencio, 40
F.3d at 729. “A judge may point out undisputed facts to the jury without error.”
Id. “In determining whether the trial judge overstepped the limits imposed on
the judge’s conduct, this Court must view the proceedings as a whole.” United
States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.1985). The instructions are
evaluated “as a whole, without isolating statements which may appear
prejudicial outside the context in which they were made”. United States v.
Gomez-Rojas, 507 F.2d 1213, 1223 (5th Cir. 1975).
      Menchaca contends the district court improperly directed a verdict on at
least two elements of each charged offense. With respect to the two counts of
transporting illegal aliens for commercial advantage, the Government had the
burden to prove: (1) “[A]n alien had entered or remained in the United States
in violation of the law”; (2) Menchaca “transported the alien within the United
States with intent to further the alien’s unlawful presence”; and (3) Menchaca
“knew or recklessly disregarded [that] fact . . . .” See United States v. Nolasco-
Rosas, 286 F.3d 762, 765 (5th Cir. 2002). With respect to the aiding and abetting
count, the Government had the burden to prove: (a) the elements of the alien-
transporting offense; and (b) Menchaca “associated with [that] criminal venture,
purposefully participated in [it], and sought by [her] actions to make [it]
succeed”. United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).
      Menchaca contends the court erred by directing the jury to find the
Government had met its burden with respect to the elements of the
transporting-aliens offenses listed above.        In referring to whether the
transported persons were “aliens”, the court summarized the evidence and
commented: “And he says that [he wasn’t born here and is not a citizen of the
United States]. I don’t think anybody is arguing about that”. In regard to
whether they were here in violation of the law, it commented: “I think both have
admitted they are here in violation of law, but you have to be satisfied about that
. . . .” With regard to whether Menchaca knew the alleged aliens were here in

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violation of the law, it commented, in context of the Government’s burden of
proof: “So that, for example, if you find people who are, in this case, trying to get
north and they’re in some kind of hotel or apartment and, apparently, have
nothing more than the clothes on their back and they’re crawling into a trailer
and hiding under boxes and mattresses at night, those are the facts that will tell
you that they are not here legally”. After summarizing the evidence, in reference
to whether the aliens were transported in a motor vehicle in furtherance of their
illegal presence, the court commented: “So they did move in a motor vehicle. So
that’s the next element. . . . And the aliens say they were trying to get back to
San Antonio and, from there, they were headed to . . . Arkansas and Louisiana.
And that’s what that means, . . . if you’re helping an undocumented alien
continue to be here illegally, that’s called furthering their illegal presence”.
Each of these comments was given in context of the Government’s burden of
proof. Accordingly, they were not improper.
      Menchaca also contends the court erred by directing the jury to find the
Government met its burden with respect to the elements of aiding and abetting.
The district court charged the jury that if it accepted co-defendant’s testimony
that Menchaca asked him to drive the rented vehicle and transport the aliens in
exchange for $300, “[t]hat would be a classic case of aiding and abetting”. These
remarks merely provided an example of what would constitute evidence of aiding
and abetting if the jury accepted the Government’s evidence.
      Upon reviewing these comments in the light of the whole record, we
conclude the court’s remarks merely summarized the evidence and provided the
jury with information about what the Government needed to prove. See Quercia,
289 U.S. at 469; Inocencio, 40 F.3d at 729-30. The court did not absolve the
Government from proving the necessary facts to the jury, nor did it take any
issue or element from the jury’s consideration. See Inocencio, 40 F.3d at 729-30.
Throughout the charge to the jury, the district court framed its comments in
context of the Government’s burden of proof and the jury’s responsibility to

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decide the facts. Quercia, 289 U.S. at 469. Accordingly, the jury charge as a
whole was not improper and did not direct a verdict on any issue.
      AFFIRMED.




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