                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS           November 1, 1999
                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk


                           No. 97-41505

                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              VERSUS

     DAGOBERTO RODRIGUEZ, RENE RODRIQUEZ and RICARDO BLANCO,

                                              Defendants-Appellants.


          Appeals from the United States District Court
                for the Southern District of Texas
                          (M-97-CR-125-1)




Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Dagoberto Rodriguez (“Dagoberto”), Rene Rodriguez (“Rene”),

and Ricardo Blanco (“Blanco”) (collectively “Appellants”) were

convicted of conspiracy to possess marijuana.      In addition, both
Rodriguez brothers were found guilty of possession of more than 100

kilograms of marijuana.     On appeal, Appellants challenge the

district court’s allegedly excessive and prejudicial intervention

in the questioning of witnesses.       Finding no plain error, we

affirm.




    *
       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this opinion should not be published and is not precedent except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.
                                  I.

      On January 6, 1997, Narciso Leo Reyes (“Reyes”) was asked by

the Rodriguez brothers to dig two holes on their ranch.     A few days

later on January 12, 1997, after the holes had been filled in,

Reyes investigated those holes and unearthed several bundles of

marijuana.   He recovered one of those bundles and allowed his

companion, who had driven him to the ranch, to take a portion of

it.   Reyes then returned to town, where he futilely attempted to

sell the marijuana.       After these unsuccessful efforts, Reyes

returned to the ranch and reburied the opened bundle.        The next

day, unbeknownst to Reyes and the Rodriguez brothers, federal and

Texas agents executed a search warrant on the ranch and seized all

the marijuana in the two holes.        A search warrant was reportedly

posted on the property.

      That same day, the Rodriguez brothers called Reyes to ask if

he had been out to the ranch.     Fearing that they were inquiring

about the marijuana taken by his companion, Reyes denied having

been at the location.   For several weeks, Reyes continued to avoid

the Rodriguez brothers’ frequent attempts to speak with him.       But

on the evening of February 10, Blanco and two individuals struck

Reyes in the back of the neck with a baseball bat and threw him

into a car trunk as he was returning home.       They then transported

Reyes to a place near Rene’s house. There, both Rodriguez brothers

questioned Reyes about the marijuana while Dagoberto and Blanco

punched and kicked him.


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     Afterwards, Reyes was taken to the garage at the house of

Blanco’s mother in La Feria, where Blanco continued to beat and to

interrogate Reyes about the marijuana.   At one point, Blanco tied

Reyes to a bunk-bed ladder with duct tape and poured gasoline on

Reyes’s bare feet and set them on fire.     The following morning,

Reyes managed to escape and make his way to a nearby schoolyard,

from which he was taken to a hospital for treatment of his numerous

injuries, including his blistered and blackened feet.   Noticeably,

he still had duct tape around his head.     Later that day, police

officers searching Blanco’s mother’s garage found duct tape on a

bunk-bed ladder, hair on other pieces of used duct tape, and a

gasoline can.

     At trial, Blanco gave a different account of the events of

February 10-11.    He said that he was at his mother’s house,

drinking beer leftover from his twenty-first birthday party that

weekend, when Reyes was dropped off by someone driving a red car.

Blanco testified that Reyes was obviously high or drunk, as he was

barefoot on a cold night, and asking for money and information

about where he could buy some drugs.   Reyes said that he could pay

Blanco back because he had some marijuana that he would be able to

sell.   Blanco, however, refused to lend Reyes any money because

Reyes still owed him money for a gold bracelet that Reyes had

bought from him in a bar two months before.    Blanco claimed that

this argument over money escalated into a fistfight, that Blanco

knocked Reyes out, and that Blanco dragged Reyes into the garage

and taped his feet to a ladder to keep him from waking up and


                                3
breaking the windows in Blanco’s mother’s house.                   Blanco said he

inadvertently knocked over a gas can in this process, but mentioned

nothing about a fire.        Later that night, Blanco removed the tape on

Reyes’s feet and covered him with a blanket to let him “sleep it

off.”    The next morning, when Blanco awoke and went to the garage,

he saw that Reyes was gone.         Thereafter, Blanco called his wife to

say he had spent the night at his mother’s house and was coming

home.    A few days after hearing that a warrant was out for his

arrest, Blanco turned himself in, giving a statement that his trial

testimony mirrored.

     Despite the conflicting testimony and the limited physical

evidence, the jury found Blanco and the Rodriguez brothers guilty

of the crimes charged.        This appeal followed.



                                        II.

     Relying primarily on our decision in United States v. Saenz,

134 F.3d 697 (5th Cir. 1998), Appellants argue that the district

court’s frequent and extensive questioning of Reyes and the defense

witnesses prejudiced the jury against them.                    Because Appellants

failed    to   object   at    trial,    we    review    the     district   court’s

questioning for plain error.           See United States v. Cantu, 167 F.3d

198, 202 (5th Cir.), cert. denied, 68 U.S.L.W. 3200 (U.S. Oct. 4,

1999) (No. 98-1928).          Plain error exists only if “the district

judge’s actions, viewed as a whole, ... amount to an intervention

that could have led the jury to a predisposition of guilt by

improperly     confusing     the   functions    of     judge    and   prosecutor.”


                                         4
Bermea, 30 F.3d at 1569.         We must “review the entire record” to

determine whether the district court’s interventions were “‘so

prejudicial’” as to deny the defendants “‘a fair, as opposed to a

perfect, trial.’”     Cantu, 167 F.3d at 202 (quoting Bermea, 30 F.3d

at 1569).

       A careful examination of the entire record convinces us that

the district court’s questions were not so prejudicial as to

conflate the roles of judge and prosecutor or to deny Appellants a

fair trial. The district court asked extensive questions of Reyes,

the lead government witness, and of Blanco, the only defendant who

testified.2      But many of those interruptions were due to the

government’s and the defense counsel’s inability to lay a proper

foundation for certain testimony, or those interruptions served to

clear up potentially confusing testimony.          See United States v.

Bartlett, 633 F.2d 1184, 1188 (5th Cir. Jan. 1981) (“[A] trial

judge may elicit facts not yet adduced or clarify those previously

presented . . . .”).         Although in the case of a testifying

defendant “this Court is particularly sensitive to a trial judge’s

questioning,” United States v. Carpenter, 776 F.2d 1291, 1294 (5th

Cir.    1985),   we   conclude    that   the   district   court   did   not

sufficiently impugn Blanco’s credibility to prejudice the jury.

Where a defendant, as in this case, gave plainly inconsistent

   2
        Appellants also complain of the district court’s questioning
of two defense witnesses: a Mexican newspaper photographer and
Pedro Martinez III, a neighbor of Blanco’s mother.      The former
testified to a collateral matter while, in the case of Martinez,
the court merely exercised its discretion to elicit testimony from
him. Appellants fail to allege how such questioning strayed from
the lines of judicial impartiality.

                                     5
answers, misunderstood several questions, and ultimately was shown

to have a different assumption about what constituted legal divorce

than the judge, the district court had an obligation and a duty to

question the defendant and did not depart from the bounds of

neutrality    in   its   attempts   to     elucidate    the     evidence.     See

Bartlett, 633 F.2d at 1188. Indeed, the district court’s questions

fell within the scope of its authority to clarify the evidence,

determine admissibility, and explore the possibility of Blanco’s

perjury about his marital status.                Unlike Saenz, the district

court’s questions did not make the government’s case for it or

anticipate testimony on elements of the offenses.

     Based on a review of the entire record, including the two

instructions to the jury to disregard anything the judge said about

the facts, we find that the judge’s questioning did not lead the

jury to a “predisposition of guilt” and that the district court

committed no plain error.



                                    III.

     Appellants     raise   several        other    issues    relating   to   the

sufficiency of the evidence to convict Rene and Blanco and to all

Appellants’    sentences.      These       are     meritless.      Accordingly,

Appellants’ convictions and sentences are AFFIRMED.




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