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

                                    No. 16-41441
                                                                           Fifth Circuit

                                                                         FILED
                                                                  February 7, 2018

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellee

v.

YUNIER PEREZ-MELIS,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      We decide (1) whether the district court’s questioning of a witness during
a criminal trial constituted plain error and (2) whether remand to the district
court for correction of a clerical error in the final judgment is appropriate. We
conclude the district court did not plainly err, and we vacate the final judgment
and remand to the district court to correct the clerical error.
                           Facts and Proceedings
      Perez-Melis was a driver for a produce company in Texas. While at a U.S.
Customs and Border Protection checkpoint, two federal agents questioned
Perez-Melis about his route and inspected his eighteen-wheel tractor-trailer
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with a canine. The dog alerted the agents to the two rear doors of the tractor-
trailer, which were secured by a combination lock. When prompted by the
agents, Perez-Melis retrieved the combination to the lock from his wallet.
       Upon opening the tractor-trailer, the agents encountered three stacks of
large watermelon crates lined against the back of the truck. Given the weight
of watermelons, the agents found the configuration of the crates unusual.
Suspicious, the officers asked Perez-Melis whether he had passed through any
weight stations. Perez-Melis indicated that he had indeed passed through one,
but he had lost his receipt. The officers then asked him for his logbook and bill
of landing tracking his driving hours, in which they found discrepancies. Perez-
Melis reportedly became “extremely nervous” 1 during the exchange and
gestured frequently with his body and hands.
       One of the agents climbed a ladder to look over the crates of watermelons
and found six men hiding in the truck. None of them was a citizen or had a
legal right to be in the United States. The agents arrested Perez-Melis and
charged him with six counts of smuggling illegal aliens into the country, one
count for each alien found in the tractor-trailer.
       Perez-Melis’s trial turned on whether he knew of the presence of the
aliens in the back of the tractor-trailer. Julio Alberto Guzman-Perez, one of the
aliens, was called to testify. Guzman-Perez explained how he ended up in the
tractor-trailer. Born in El Salvador, his sister paid to smuggle him from Mexico
into the United States. He crossed the border on a raft and then was taken to
a ranch, which functioned as a “stash house.” A few days later, a couple of men
came to the ranch in a pickup truck and transported Guzman-Perez to the
tractor-trailer in which the federal agents eventually found him.


       1Perez-Melis notes that one of the two officers at the checkpoint did not notice signs
of nervousness. Moreover, the officer who testified Perez-Melis was “extremely nervous”
wrote in his initial report only that Perez-Melis was “acting different.”
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      Both the prosecution and defense counsel asked Guzman-Perez many
times over multiple rounds of direct examination and cross-examination who
drove the pickup truck that took him to the tractor-trailer. He stated that
Perez-Melis had been one of two people in the pickup truck and that Perez-
Melis got out of the pickup truck and opened the doors of the tractor-trailer.
Guzman-Perez also testified that he had identified Perez-Melis as the person
who opened the trailer door for him in a photo lineup. Guzman-Perez initialed
the photo next to Perez-Melis’s image and wrote “chauffeur” to indicate that he
was the driver. Guzman-Perez also saw Perez-Melis when the federal agents
removed him from the tractor-trailer.
      Guzman-Perez further testified that he was afraid when identifying
Perez-Melis at the photo lineup because he was nervous that Perez-Melis
“would say that it wasn’t him” since “there was a possibility that it wasn’t him.”
Defense counsel asked if he had felt intimidated or scared when he initialed
the photo. Guzman-Perez said that he was intimidated because the federal
agents told him that if he failed to identify the driver, “they were going to sic
the black people on [him].” Guzman-Perez interpreted this threat to mean that
he “would be raped.” Despite being unable to read or write English, Guzman-
Perez signed a statement in English because he “was forced to sign it.” When
both the prosecutor and defense counsel asked Guzman-Perez if he felt afraid
during the trial, however, he answered in the negative.
      After a few rounds of direct examination and cross-examination, the
testimony became repetitive and somewhat confusing. The district court
interjected and posed some questions to Guzman-Perez, including whether he
could identify the person who had driven the truck, whether his attorney
advised him to testify truthfully, why he was afraid of the federal agents at the
time of his arrest but not during the trial, and whether he expected to be
deported after his detention. Perez-Melis did not object to this questioning, and
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before opening statements and after closing statements, the district court
issued standard, curative instructions to the jury stating that the jurors should
disregard any partiality they detected in the judge.
      Perez-Melis testified in his own defense, and he contradicted Guzman-
Perez’s testimony on several points. He claimed he never drove Guzman-Perez
in a pickup truck. He never loaded people into his tractor-trailer. He did not
know there were six aliens in his tractor-trailer. And the inconsistencies in his
log allowed him enough time to get to Houston because he would be put out of
service until he had enough sleep otherwise.
      During deliberations, the jury sent a note to the judge requesting a
transcript of Guzman-Perez’s testimony. The district court responded there
was no transcript. The jury also asked whether all six charges leveled against
Perez-Melis must receive the same verdict. The judge responded, “No.” Finally,
the jury asked what should happen if the jurors could agree only on one charge.
The district court instructed the jury to return their verdict and write
“undecided” on any disputed count.
      Ultimately, the jury returned a verdict against Perez-Melis on only one
of the six counts of illegal trafficking of aliens. Specifically, the jury found him
guilty of transporting Guzman-Perez, but none of the other aliens. 2 The district
court dismissed the remaining five counts of the indictment and sentenced
Perez-Melis to 27 months of imprisonment and three years of supervised
release. The dismissal of the five counts from the indictment was not reflected
in the final judgment.
      Perez-Melis appealed, arguing that the district court’s substantial
interference during the examination of Guzman-Perez denied him a right to a



      2  We note there was no dispute that authorities found six aliens in the back of the
tractor-trailer.
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fair trial and that under Federal Rule of Criminal Procedure 36 this court
should remand to allow the district court to correct the clerical error in the
final judgment.
                                  Discussion
               I. Substantial Interference by the District Court
                               A. Legal Standard
      Because Perez-Melis did not object at trial to the district court’s
questioning of Guzman-Perez, we review only for plain error. United States v.
Saenz, 134 F.3d 697, 701 (5th Cir. 1998); United States v. Sanchez, 325 F.3d
600, 603 (5th Cir. 2003). “Plain error is clear or obvious error that affects
substantial rights of the defendant and seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Sanchez, 325 F.3d at 603 (internal
quotation marks omitted).
      District courts wield “wide discretion over the tone and tempo of a trial.”
Saenz, 134 F.3d at 701 (internal quotation marks omitted). Federal Rule of
Evidence 614 explicitly allows a district court to “examine a witness regardless
of who calls the witness.” FED. R. EVID. 614(b). A trial court may “elicit facts
not yet adduced or clarify those previously presented.” Saenz, 134 F.3d at 701
(quoting United States v. Williams, 809 F.2d 1072, 1087 (5th Cir. 1987)). We
have cautioned, however, that “[a] judge’s questions must be for the purpose of
aiding the jury in understanding the testimony.” Id. at 702. A district court’s
actions must not amount to an intervention that could lead a jury “to a
predisposition of guilt by improperly confusing the functions of judge and
prosecutor.” Id. (quoting United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir.
1994)).
      A district court must not “appear to be partial to the prosecution.” United
States v. Cantu, 167 F.3d 198, 202 (5th Cir. 1999). “The jury cannot be regarded
as having freely come to its own conclusions about [a witness’s] credibility
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when the court has already indicated, directly or indirectly, that it disbelieves
his testimony.” Saenz, 134 F.3d at 703 (quoting United States v. Filani, 74 F.3d
378, 386 (2d Cir. 1996)). This is true because “[t]he influence of the trial judge
on the jury is necessarily and properly of great weight and his lightest word or
intimation is received with deference, and may prove controlling.” Quercia v.
United States, 289 U.S. 466, 470 (1933) (internal quotation marks omitted). A
district court should not express any opinions as to the merits of the testimony
or function as a witness. See United States v. Cisneros, 491 F.2d 1068, 1072–
75 (5th Cir. 1974) (requiring a new trial when district court told the jury
“somebody is lying in this case”).
      Our review of a trial court’s actions is based upon the entire trial record.
Id.; see Sanchez, 325 F.3d at 608 (“When viewed as a whole, and the compelling
case presented by the prosecution, the district court’s conduct does not rise to
the level of plain error.”). We decide whether, under the totality of the
circumstances, a trial judge’s intervention is “quantitatively and qualitatively
substantial.” Saenz, 134 F.3d at 702 (quoting Bermea, 30 F.3d at 1569). We
“determine whether the judge’s behavior was so prejudicial that it denied the
defendant a fair, as opposed to a perfect, trial.” Id. (alterations and internal
quotation marks omitted) (quoting Williams, 809 F.2d at 1086). Even if a trial
court’s questions “clearly helped” the prosecution, such interference does not
necessarily compel a conclusion that the district court plainly erred. See
Sanchez, 325 F.3d at 607–08. We reiterate, however, that “we will not hesitate
to find error when a trial judge forgets that he is no longer at counsel table.”
United States v. Achobe, 560 F.3d 259, 274 (5th Cir. 2008).
               B. The District Court’s Questioning of the Witness
      During the trial, defense counsel had begun another round of cross-
examination of Guzman-Perez when the prosecution asked to clarify several of
defense counsel’s questions. The witness appeared confused, and eventually
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the court interjected, “Okay, that’s enough.” The district court then posed a
series of questions to Guzman-Perez, most of which the prosecution and
defense had already covered.
THE COURT: Do you see the man that drove you in the pickup truck here in
court today?
THE WITNESS: Yes.
...
THE COURT: And did you see him any other time on the day of your arrest
besides the time he drove you in the white pickup?
THE WITNESS: Yes.
...
THE COURT: Did you see him at the checkpoint?
THE WITNESS: Yes.
THE COURT: Do you remember seeing him on the checkpoint—at the
checkpoint without regard to these pictures? Do you have a separate and
independent memory today that this is the man you saw at the checkpoint?
Look at the man, not the picture. Look at him. Look at the man in the white t-
shirt. Stand up.
THE WITNESS: Yes.
THE COURT: Stand up. Stand up. Who is this man?
THE WITNESS: That’s him.
THE COURT: That’s him what? He did what?
THE WITNESS: The one that was bringing us in a trailer.
THE COURT: How many times did you see him on the day that he brought you
in the trailer?
THE WITNESS: One time.
THE COURT: Where?
THE WITNESS: When they got us out at the checkpoint.
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THE COURT: Did you see him at any other time before that occasion? Did you
see him any other time before you saw him at the checkpoint?
THE WITNESS: Yes.
THE COURT: And where did—where was that?
THE WITNESS: In the pickup.
THE COURT: Where is your home?
THE WITNESS: How’s that?
THE COURT: What country do you live in?
THE WITNESS: El Salvador.
THE COURT: And how old are you?
THE WITNESS: Twenty-four.
THE COURT: How many years did you go to school?
THE WITNESS: Sixth grade.
THE COURT: And do you read and write Spanish?
THE WITNESS: Yes.
THE COURT: What is your job in Salvador? What work do you do?
THE WITNESS: A farmer.
THE COURT: And do you farm with your family?
THE WITNESS: Yes.
THE COURT: Are you represented by an attorney here today?
THE WITNESS: Yes.
...
THE COURT: What—did she tell you to tell the truth?
THE WITNESS: Yes.
THE COURT: And you afraid of the agents today?
THE WITNESS: No.
THE COURT: Why are you not afraid today but you were afraid on the day of
your arrest?
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THE WITNESS: Yes, because they were going to catch us because they were
going to detain us.
THE COURT: You are still detained, true?
THE WITNESS: Yes.
THE COURT: And it is your belief you will be deported; is that true?
THE WITNESS: Yes.
THE COURT: Will you be deported whether you tell the truth or whether you
lie?
THE WITNESS: Yes.
        The district court justified its interjections by explaining: “We were just
getting too wobbly.” The district court then allowed defense counsel, who did
not object to the interruption or the court’s queries, to continue questioning
Guzman-Perez.
                    C. The District Court Did Not Plainly Err
        On appeal, Perez-Melis argues that the district court unnecessarily
intervened when questioning Guzman-Perez, the government’s key witness,
regarding matters that were “at the heart of the case.” He contends the district
court’s intervention was unjustified, quantitatively and qualitatively
substantial, and it could have led the jury to a predisposition of guilt. Perez-
Melis compares his trial to the one we held was unfair in United States v.
Saenz. He urges that, based on the record as a whole, he was denied a fair trial
and the district court plainly erred. We disagree.
        The district court’s questions as to whether Guzman-Perez could identify
Perez-Melis from both the pickup truck and the tractor-trailer had been
exhaustively treated by counsel for both sides over multiple rounds of
examination. And both the defense and the prosecution had asked Guzman-
Perez whether he felt afraid at the time of the trial and at the time he was


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presented with the photo lineup. The district court never expressed any
opinions about the case. Cf. Cisneros, 491 F.2d at 1072–75.
       Although some of the district court’s questions could be interpreted as
rehabilitating the credibility of the witness (“Will you be deported whether you
tell the truth or whether you lie?”), Guzman-Perez’s testimony was not
uniformly helpful to either the prosecution or the defense. Cf. Saenz, 134 F.3d
at 708. Guzman-Perez was the only witness to identify Perez-Melis, 3 but he
testified that he was not sure Perez-Melis was the driver when he initialed the
photo. He also testified he felt coerced when the federal agents asked him to
participate in the photo lineup. The district court’s questioning worked to
highlight and distill the key points of the witness’s testimony for the jury, not
extract new information or express opinions about the case.
       Perez-Melis’s contention that his trial resembles the one we held was
unfair in Saenz is unavailing because that case is distinguishable in many
respects. The district court did not begin questioning Guzman-Perez until
counsel had finished nearly three rounds of direct and cross-examination, and
the district court mostly covered questions previously presented by counsel. Cf.
id. at 707. The district court did not question Perez-Melis himself. See id. at
709 (noting we are “particularly sensitive to a trial judge’s questioning of the
defendant” (quoting United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.
1985))). And the district court afforded defense counsel the opportunity to
continue questioning Guzman-Perez after its interjection. Cf. id. at 708–09.
       Perez-Melis argues his trial “hinged” largely on the jury’s assessment of
one witness’s credibility, as it did in Saenz. See id. at 702–04. But the
government’s case against Perez-Melis was compelling. There was evidence



       3One other alien was called to testify at the trial. But he never saw Perez-Melis and
he could not identify anybody in the photo lineup.
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other than Guzman-Perez’s testimony supporting Perez-Melis’s guilt: he was
driving the tractor-trailer in which six undocumented aliens were discovered;
he had the combination for the lock securing the tractor-trailer in his wallet;
the watermelon crates were stacked in an unusual way; one of the agents
testified Perez-Melis was “extremely nervous” or at least “acting different”
during the inspection; Perez-Melis claimed he lost the receipt after weighing
the watermelons; and there were inconsistencies in his logbook.
      Perez-Melis contends his trial was shorter and less complex than the
Saenz trial, factors we have said are “critical.” See id. at 703–04. His trial,
however, contained an element missing in Saenz: Guzman-Perez’s testimony
was repetitive and somewhat confusing. See id. at 704. The witness here
appeared confused at times and failed to understand many questions.
Moreover, there was some confusion about whether Guzman-Perez had seen
Perez-Melis at the pickup truck, the tractor-trailer, or both. (“Your Honor,
could you clarify for the purpose of [defense counsel’s] question, which truck?”)
The testimony grew repetitive and the district court eventually intervened:
“[O]kay. We’ve been over this. He’s answered that several times.” Even in this
short and simple trial, we will not say that the subsequent questioning by the
district court, which has wide discretion over the tone and tempo of the trial,
was plain error.
      In summary, based on our review of the record as a whole, the district
court did not “trespass on the jury’s functions and responsibilities, among the
most important of which . . . is the right to assess credibility in finding the
facts.” Cisneros, 491 F.2d at 1074. Although the jury verdict convicting Perez-
Melis of only one count of transporting aliens when there was no dispute that
six aliens were in the trailer was odd, the “unusual circumstances” that
obtained in Saenz are not present. Saenz, 134 F.3d at 713. The court issued
curative instructions to the jury, and to the extent that the district court erred,
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if at all, we are not persuaded that it “seriously affected the fairness, integrity,
or public reputation of the judicial proceeding.” Sanchez, 325 F.3d at 608–09.
Accordingly, we hold the district court did not plainly err when it questioned
Guzman-Perez.
                         II. Correction of the Final Judgment
       Perez-Melis contends that the case should be remanded for correction of
the final judgment in accordance with Federal Rule of Criminal Procedure 36 4
because the final judgment does not reflect that five of the charges from the
indictment were dismissed. This court has authority to review errors in a
judgment for the first time on appeal. See United States v. Martinez, 250 F.3d
941, 942 (5th Cir. 2001). The government does not dispute Perez-Melis’s claim
and it agrees to his requested relief. We remand the case to the district court
for correction of the final judgment.
                                       Conclusion
       For the foregoing reasons, we conclude the district court did not plainly
err when it questioned Guzman-Perez. We VACATE the judgment of the
district court and REMAND for the limited purpose of correcting the final
judgment.




       4 Federal Rule of Criminal Procedure 36 states: “After giving any notice it considers
appropriate, the court may at any time correct a clerical error in a judgment, order, or other
part of the record, or correct an error in the record arising from oversight or omission.”
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