                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                       File Name: 12a0693n.06

                                              No. 11-1166
                                                                                             FILED
                             UNITED STATES COURT OF APPEALS                             Jun 29, 2012
                                  FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                   )
                                                            )        ON APPEAL FROM THE
          Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                            )        COURT FOR THE EASTERN
v.                                                          )        DISTRICT OF MICHIGAN
                                                            )
ALBERTO FLORES,                                             )        OPINION
                                                            )
          Defendant-Appellant.                              )
                                                            )


BEFORE:          WHITE, STRANCH, and FARRIS*, Circuit Judges.

          FARRIS, Circuit Judge. Alberto Flores argues that the district court committed reversible

error when it called as its own witness and questioned a declarant of out-of-court statements. We

affirm.

          Flores and ten co-defendants were indicted for conspiracy to distribute with intent to import

and to import pseudoephedrine from Canada into the United States, in violation of 21 U.S.C.

§§ 959(a)(1) and 960(d)(3). Flores waived his right to trial by jury and elected to have a bench trial.

The government called as witnesses two co-defendants who had previously pled guilty, Enrique

Barajas, also known as Enrique Sanchez, and Nasir Baste. The government also introduced out-of-

court statements of co-defendant Shahin Judeh through Sanchez’s and Baste’s testimony. Judeh had


          *
        The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
No. 11-1166                             United States v. Flores                                         2

also pled guilty, but the government chose not to call him as a witness. He had recanted testimony

in a separate matter, and the government did not want to raise any possibility that Judeh should

receive a reduction in sentence.

        The district court expressed concern that the out-of-court statements lacked sufficient

independent corroborating evidence to be admissible under Federal Rule of Evidence 801(d)(2)(E),

and it called Judeh as its own witness. After hearing Judeh, the district court found Flores guilty and

sentenced him to 186 months in prison, to run concurrently with the sentence for a conviction in the

Eastern District of Kentucky.

        We review a district court’s evidentiary rulings for abuse of discretion. United States v.

Mick, 263 F.3d 553, 566 (6th Cir. 2001). We also review a district court’s conduct during trial,

including its decision to call and question witnesses, for abuse of discretion. McMillan v. Castro,

405 F.3d 405, 409 (6th Cir. 2005) (citation omitted); Fielding v. United States, 164 F.2d 1022, 1023

(6th Cir. 1947). We review for clear error the preliminary question of fact whether the government

has met its burden to establish the admissibility of out-of-court statements. United States v.

Martinez, 430 F.3d 317, 326 (6th Cir. 2005). Hostile or biased conduct by a district court,

particularly in the presence of a jury, is structural error that requires automatic reversal. McMillan,

405 F.3d at 410 (citation omitted). If there is constitutional error that does not infect the entire trial

process and make the trial fundamentally unfair, however, we review that error for prejudice under

the Chapman harmless-error standard. Neder v. United States, 527 U.S. 1, 8 (1999); United States

v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990). Such error is harmless only if we can declare

beyond a reasonable doubt that the error did not contribute to the verdict. Chapman v. California,

386 U.S. 18, 24 (1967); Martin, 897 F.2d at 1372.
No. 11-1166                             United States v. Flores                                         3

        The district court’s “function [is] to conduct the trial in an orderly way with a view to

eliciting the truth and to attaining justice between the parties.” Knapp v. Kinsey, 232 F.2d 458, 466

(6th Cir. 1956). In fulfilling that function, it may call witnesses on its own motion and interrogate

those witnesses. Fed. R. Evid. 614. “While we do not look with favor on extensive examination of

witnesses by the trial judge in a jury trial,” even in a jury trial the court may intervene “when

necessary to clear up confusion in the evidence or to supplement, in an impartial fashion, the

presentation of a poorly prepared attorney.” McMillan, 405 F.3d at 410 (citations, quotation marks,

and indications of alterations omitted). In reviewing whether the district court had a good reason to

call or question a witness, we consider such factors as the nature and complexity of the issues at trial,

whether the attorneys were unprepared or obstreperous, and whether it was difficult for counsel to

deal with a witness without such intervention. McMillan, 405 F.3d at 410; United States v. Hickman,

592 F.2d 931, 933 (6th Cir. 1979).

        The district court must also maintain an objective demeanor while intervening. Hickman,

592 F.2d at 933. The court may demonstrate personal bias or prejudice through remarks and

handling of the trial that indicate “hostility to one of the parties, . . . unwarranted prejudgment of the

merits of the case, or an alignment . . . with one of the parties.” Knapp, 232 F.2d at 466 (citation

omitted). Factors to consider include “the tone of the judicial interruptions, the extent to which they

were directed at one side more than the other, and the presence of any curative instructions at the

close of the proceedings.” McMillan, 405 F.3d at 410 (citation omitted).

        The requirement of impartiality imposes an additional limitation on the district court’s

decision to call a witness. The court may call a witness who provides important testimony,

particularly when the court calls that witness at the request of one of the parties. Cf. Litsinger v.
No. 11-1166                             United States v. Flores                                       4

United States, 44 F.2d 45, 47 (7th Cir. 1930) (witness called by the court at the government’s request

“proved the government’s case in every detail except the identity of the appellants”). Moreover, the

court may elicit testimony that favors one party over another, as long as there is no “strategic

focusing of judicial questioning to favor” that party. United States v. Smith, 561 F.2d 8, 14 (6th Cir.

1977). The court may not become a party’s advocate, however. As the Fourth Circuit held, a court

destroys its impartiality when it “undertakes to produce evidence” that is “essential to overcome the

defendant’s presumption of innocence” or when “the government’s case would be insufficient as a

matter of law without the court witnesses.” United States v. Karnes, 531 F.2d 214, 216-17 (4th Cir.

1976).

         The district court here offered good reasons for injecting itself into the trial. See McMillan,

405 F.3d at 410; Hickman, 592 F.2d at 933. It wanted to bypass second-hand accounts of Judeh’s

statements about Flores’ role in the conspiracy and hear from someone who had “greater personal

knowledge of the events and actions at issue.” The court also referred to the opportunity Flores

would have to cross-examine Judeh, whose out-of-court statements Flores could not otherwise

impeach.

         The district court’s conduct did not demonstrate the personal bias or prejudice that would

require automatic reversal. Its conduct and remarks did not indicate hostility to Flores, unwarranted

prejudgment of the merits, or the court’s alignment with the government for the purpose of furthering

or supporting the government’s contentions. Knapp, 232 F.2d at 466. The court’s behavior certainly

does not rise to the level of the behavior of the court in Hickman, “one of the few cases in which a

judge’s conduct during trial has led to the reversal of a conviction.” United States v. Hynes, 467 F.3d

951, 958 (6th Cir. 2006); see Hickman, 592 F.2d at 932-36 (noting the district court became a
No. 11-1166                              United States v. Flores                                          5

“surrogate prosecutor” whose conduct “must have left the jury with a strong impression of the

judge’s belief of the defendant’s probable guilt”). Rather, in calling Judeh, the court referred to the

opportunity Flores would have to impeach Judeh’s testimony and noted that it was “not yet known

what effect . . . Judeh’s testimony [would] have on the trial, and which side (if either) this testimony

[would] favor.”

        The remaining question, then, is whether the government’s case was sufficient as a matter

of law without the evidence provided by the court’s witness, and thus whether Judeh’s out-of-court

statements would have been admissible if he had not testified. For a coconspirator’s statement to

be admissible against a defendant, the government must show by a preponderance of the evidence

that a conspiracy existed, that the conspiracy involved the declarant and the defendant, and that the

statement was made in furtherance of and during the course of the conspiracy. Fed. R. Evid.

801(d)(2)(E); Bourjaily v. United States, 483 U.S. 171, 175 (1987); United States v. Martinez, 430

F.3d 317, 325 (6th Cir. 2005). The district court may consider the statements in determining their

admissibility, Martinez, 430 F.3d at 325, but “the defendant's knowledge and participation in the

conspiracy must be supported by independent, corroborating evidence.” United States v. Benson,

591 F.3d 491, 502 (6th Cir. 2010) (citation omitted).

        Here, the district court likely erred in calling Judeh as a witness if it suspected that the out-of-

court statements related by Baste and Sanchez would be inadmissible without Judeh’s testimony.

If the court believed that critical evidence to the government’s case was inadmissible, it should have

so ruled. Nevertheless, this was not a jury trial, and we have held that the concerns underlying a trial

judge taking an active role are diminished when a jury is not present. United States v. Morrow, 977

F.2d 222, 225 (6th Cir. 1992). As the record does not show any bias or prejudice by the court, the
No. 11-1166                             United States v. Flores                                         6

court’s intervention is unlikely to be prejudicial. Cf. Jackson v. United States, 329 F.2d 893, 894

(D.C. Cir. 1964) (“In a nonjury case . . . needless or active interrogation by judges . . . is rarely

prejudicial”).

        The record satisfies us that any possible error by the district court was harmless. Sanchez

and Baste testified from their personal experience as well, and that testimony provides independent

corroboration of Judeh’s out-of-court statements. The out-of-court statements also provide some

evidence of the conspiracy and of Flores’ participation in it, and the out-of-court statements related

by Baste provide some corroboration of the statements related by Sanchez, and vice versa.

        The record also includes a picture of Flores traveling to Montreal, where actions

contemplated by the conspiracy occurred, and a stipulation that he traveled there. As the district

court wrote, “the circumstances surrounding the . . . trip itself give rise to a reasonable inference that

[Flores] went on this trip as a knowing and willful participant.” Testimony indicates that it was a

short trip devoted entirely to driving to Montreal, where payment was made for a future shipment

of pseudoephedrine pills. In addition, as the district court noted, there “was no evident purpose” for

the preceding leg of the trip, from Chicago to Michigan, other than to turn money over to the

coconspirators traveling to Canada and to allow Flores to join them.

        Given the record, Judeh’s out-of-court statements would have been admissible under Federal

Rule of Evidence 801(d)(2)(E) even without Judeh’s testimony. The district court did not abuse its

discretion in admitting the statements. Therefore, the court did not provide evidence necessary for

the government to make its prima facie case. In any event, any potential error was harmless.

Moreover, the district court had a good reason for interjecting itself into the trial and maintained an

objective demeanor in doing so.
No. 11-1166       United States v. Flores   7

      AFFIRMED.
