* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-40404

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

JUAN LOZANO

Defendant - Appellant

Appeal from the United States District Court

For the Southern District of Texas, McAllen

#00-CR-439-1

Before JOLLY, DAVIS and JONES, Circuit Judges.

W. EUGENE DAVIS: *

In this direct criminal appeal, Lozano challenges his

conviction on a number of grounds. We find no error and affirm.

I.

A number of law enforcement agencies, organized into a task

force, conducted a four-year investigation of a drug organization2

that was transporting cocaine and marijuana from the Rio Grande

Valley in Texas to other parts of the United Stat es. The

investigation revealed that Juan Lozano, resi ding primarily in

Mexico (though apparently never observed traveling to or from

Mexico), organized and operated the drug organization from as early

as 1995 and employed many people to transport large quantities of

drugs

-- and to distribute them to other drug-trafficking

organizations, the participants of which were separately

prosecuted.

In August 2000, Lozano, a l ong with co-defendants Marivel

Lozano (his wife), Rumaldo Lozano (his brother-in-law), and Ray

Perez were in dicted on various drug-related charges. Lozano was

charged with 17 counts: Count One charged conspiracy to possess

with intent to distribute over fi ve kilograms of cocaine (Counts

Four and Six through Eight charged the underlying substantive

offenses); Count Two charged conspiracy to possess with intent to

distribute over 1,000 kilograms of marijuana (Counts Five, Ten, and

Fifteen through Eighteen charged the underlying substantive

offenses); Count Three charged conspiracy to commit moneylaundering (Counts Eleven through Fourteen charged the underlying

substantive offenses).

Juan Lozano was tried w ith his co-defendants listed above.

During trial, the Government offered the testimony of about 65

witnesses, some of whom had dealt directly with Lozano and others

who had never heard of Lozano or spoken to him. On the fourth day3

of trial, Perez changed his plea to guilty and ultimately testified

against Lozano. After the Government rested its case, the district

court granted a motion for judgment of acquittal as to Lozano’s

wife. After a full 18-day trial, during which the court denied

Lozano’s properly preserved motions for a judgment of acquittal,

the jury acquitted Lozano’s brother -in-law of the two counts in

which he was charged, but convicted Lozano on all counts.

Several months later, the district court sentenced Lozano to:

life imprisonment for Counts One, Two, Four, Six, Seven, and Eight

(the cocaine offenses); 40 years imprisonment for Counts Five, Ten,

Fifteen, Sixteen, and Seventeen (th e marijuana offenses); and 20

years imprisonment for Counts Three, Eleven, Twelve, Thirteen, and

Fourteen (the money-l aundering offenses); a $25,000 fine, and a

$1,700 assessment. Lozano timely appealed his conviction and

raises a number of issues which we discuss below.

II.

A.

Lozano argu es first that the magistrate judge erred in

refusing to order the Gover nment to disclose “reports” compiled

from wire taps and witness interviews during his detention hearing.

The Jencks Act requires the Government to produce any

"relevant and competent reports and statements in the possession of

the Government touching the events and activities as to which a

Government witness has testified at the trial." G oldberg v. United

States

, 425 U.S. 94, 104 (1976); 18 U.S.C. 3500(b). The magistrate4

judge concluded that the “reports” were not “statements” the

Government was required to disclose under the Jencks Act. 18

U.S.C. §3500.

The Government argues that Lozano’s claim is moot now that he

stands convicted. That is, the granting of bail would not have

affected the outcome of the trial, and Lozano has no “current

cognizable inte rest” in the resolution of the report disclosure

issue. S ee

, e.g.

, Murphy v. Hunt

, 45 5 U.S. 478, 481 (1982). In

Murphy

, the Eighth Circuit, in an appeal of the detention order

that was decided after the defendant had been convicted, found that

the defendant had been wrongfully denied bail. The Supreme Court

held, however, that the claim at issue was no longer live, and that

the defendant “lack[ed] a legally cognizable intere st in the

outcome.” Id

. Murphy controls the resolution of this issue. Now

that Lozano has been convicted, his claim that he was wrongfully

denied Jencks Act material is no longer a live issue and does not

serve as a basis for disturbing the conviction.

B.

Loz ano argues next that the district court abused its

discretion by disqualifying h is first and second defense counsel

based on conflicts of interest.

In January 2001, two days after Jose “Bobby” Flores filed a

notice of appearance as Loz ano’s (first) counsel, the Government

moved to disqualify Flores, alleging a conflict of interest because

of Flores’s previous representation of Lozano’s co-defendant Perez.5

The magistrate judge observed that the previous drug trafficking

charges had been dismissed and were incorporated into the present

case as part of the overall conspiracy. Flores claimed not to have

learned anything about Lozano from Perez a nd Lozano and Perez

signed a waiver of any conflict, which the magistrate accepted and

denied the Government’s motion.

Two months later, the Government filed a sealed motion to

disqualify and requested reconsideration of the conflict i ssue,

arguing that Flores was now an unindic ted co-conspirator in the

case. At the conflict hearing, several FBI agents testified as to

wire intercepts and surveillance that revealed connections between

Flores and others in the drug conspiracy. The magistrate again

advised Lozano of the potential conflict, which Loz ano again

waived. The magistrate concluded that it would be inappropriate to

allow Flores to continue representing Lozano, citing the integrity

of the judicial system and based on “appearances and potential for

problems in this criminal proceeding as it goes forward,” and

disqualified him in a written order dated June 11.

Lozano then retained Jack Pytel and Robert Berg. At a

pretrial hear ing on August 20, the district court questioned

Flores’s apparent continued involvement in the case. The marshals

verified that Flores had discussed a plea offer with Lozano, and

Flores apparently acknowledged that he was back on the case at the

request of Lozano’s family. The court also inquired about any

connections between Flores and Lozano’s new counsel . Berg6

acknowledged that Flores had first contacted him about representing

Lozano should Flores be disqualified, while Lozano had apparently

hired Pytel directly. Berg claimed to have had no substantive

discussions with Flores after being hired, but that Flores had

offered to let Berg use his offices, and he did so “just to meet”

with Flores. The court advised Lozano of this serious potential

conflict, which Lozano again attempted to waive.

During a recess, Berg informed the Government that he had

previously represented Flores on a motion to quash a grand jury

subpoena. He also stated that he might call Flores as a witness in

this case, but claimed that Pytel would examine Flores. Flores

waived any attorney-client privilege he had with Berg. It was also

revealed that Berg had been paid for this case directly by Flores,

with the “understanding” that the money came from Lozano’s sister.

The payment was in cash, but Berg did not know how much money he

had received because he “had not counted it yet” and had not filed

any documents reporting the transaction. At Lozano’s request, the

court appointed Micaela Alvarez to discuss thes e conflicts with

him.

The court reconvened on September 20 and decided that, in the

light of the questionable connections between Flores and Berg, and

of Pytel being able to represent Lozano with no apparent conflicts,

Berg’s potential conflicts were too great. Despite Lozano’s desire

to continue with Berg as counsel, the court deemed the conflict not

waiveable and disqualified Berg.2 The right to assistance of counsel does not guarantee that

a defendant will be represented by a particular attorney. Caplin

& Drysdale v. United States , 491 U.S. 617, 624 (1989). Although

there is a presumption in favor of a defendant’s counsel of

choice, that presumption may be overcome by the existence of an

actual conflict or by evidence of a serious potential for

conflict. Wheat v. United States , 486 U.S. 153, 159 (1988).

7 This court reviews a district court’s disqualific ation of a

defense attorney for conflict of interest for abuse of discretion.

United States v. Millsaps

, 157 F.3d 989, 995 (5th Cir. 1998). The

Sixth Amendme nt guarantees a defendant’s right to effective

assistance of counsel and a “correlativ e right to representation

free from conflicts of interest.” Wood v. Georgia , 450 U.S. 261,

271 (1981). 2 An actual conflict exists when “defense counsel is

compelled to compromise his or her duty of loyalty or zealous

advocacy to the accused by choosing between or blending the

divergent or competing interests of a former or current c lient.”

Perillo v. Johnson

, 205 F.3d 775, 782 (5th Cir. 2000) (citing

Srickland v. Washington , 466 U.S. 668, 692 (1984)).

Should a defendant desire to waive the conflict, the trial

court must establish a knowing, voluntary waiver. U nited States v.

Garcia

, 517 F.2 d 272, 274 (5th Cir. 1975). In determining the

validity of a waiver, the district court is afforded “substantial

latitude in refusing waivers of conflicts of interest not only if

an actual conflict is demonstrated, but in cases where a potential

for conflict exists which may result in an actual conflict as the

trial progresses.” U nited States v. Vasquez

, 995 F.2d 40, 45 (5th3 An accused’s right to waive conflict-free representation is

not absolute. See

, e.g.

, United States v. Sotelo , 97 F.3d 782,

791 (5th Cir. 1996) (district court did not abuse its discretion

by refusing waiver to permit multiple representation of

defendants).

8 Cir. 1993) (citing Wheat

, 486 U.S. at 163). 3 The court must also

evaluate the potential effect on the integrity of the judicial

system. U nited States v. Medina

, 161 F.3d 867, 870 (5th C ir.

1998); United States v. Rico , 51 F.3d 495, 511 (5th Cir. 1995).

Lozano argues that for an actual conflict claim to prevail on

appeal, on e’s lawyer must have been operating under an actual

conflict which adversely affected his lawyer’s performance. The

Government properly points out that the actual and/or pote ntial

conflicts of interest in this case only begin with the conflicts

raised by prior representat ions and extend to almost every

conceivable conflict of interest pr oblem. First, the conflicted

counsel potentially has privileged information unavailable to nonconflicted counsel. Moreover, certain evidence indicated that

Flores was an indictable co-conspirator, and was advising other coconspirator s on how to avoid detection and prosecution. Indeed,

Flores was as much a potential witness as a potential co-defendant.

And Berg’s connections to and dealings with Flores suggest that

Berg’s representation was simply a “pseudo-representation” by

Flores. The fact that Flores remained involved in the case after

his disqualification further tainted Berg’s representation.

In sum, the district court proper ly observed the potential9

pitfalls during the upcoming trial and the threats to the integrity

of the judicial process inherent in Flores’s and Berg’s continued

representation of Lozano in the case. The court did not abuse its

discretion in disqualifying them.

C.

Lozano argues next that the indictment does not sufficiently

allege a money laundering conspiracy offense in violation of 18

U.S.C. §1956(h).

We review de novo the issue of whe ther an indictment

sufficiently alleges all elements of an offense. U nited States v.

Biegnaowski, 313 F.3d 264, 285 (5th Cir. 2002). The substantive

offense of money laundering is set forth in §1956(a). A separate

subsection states that “any person who conspires to commit any

offense defined in this section

. . . shall be subject to the same

penalties as those prescribed for the offense the commission of

which was the object of the conspiracy.” 18 U.S.C. § 1956(h). One

of the elements of the substantive offense of money laundering is

that the defendant knew that the property used in a financial

transaction represented unlawful activity. Lozano contends that

the indictment failed to allege this essential element of the

conspiracy offense with which he was charged.

Lozano’s argument fails for a number of reasons. First, count

3 of the indictment charged the defendants with “knowing that the

transaction was designed in whole or in part to conceal and10

disguise the nature, location, source, ownership, and control of

the proceeds of such specified unlawful a ctivity, and that while

conducting and attempting to conduct such a financial transaction,

that the property involved in the financial transactions

. . .

represented the proceeds o f some form of unlawful activity in

violation of 18 U.S.C. § 1956(a)(1).” Lozano seems to argue that

Count 3 fails to allege Lozano’s knowledge that the property used

in the financial transaction represented unlawful activity because

he is not listed in the “overt acts” as having such knowledge. The

above quoted portion of the allegations of Count 3 of the

indictment adequately alleges Lozano’s knowledge that the property

involved in the financial transactions represented the proceeds of

unlawful activity.

Moreover, because Lozano is charged with conspiracy to commit

money launderin g under § 1956(h), the knowledge element Lozano

claims is missing from the indictment is not even an element of the

crime. S ee Threadgill

, 172 F.3d at 366-67. In T hreadgill

, we

held that charging the defendant with conspiracy to commit money

laundering was sufficient t o apprise a defendant of the charged

crime without requiring the inclusion of the elements of the

substantive crime. For these reason, we conclude that Count 3 of

the indictmen t adequately charged Lozano with money laundering

conspiracy under § 1956(h).

D.

Lozano argues next that the district court erred by allowing11

the Spanish speaking jury to hear and consider tapes of Lozano’s

conversations in Spanish. The district court admitted into

evidence tapes of several conversations in which Lozano

participated that were conducted in Spanish. All the jurors stated

that they spoke and understood Spanish. The court informed all

parties that English transcripts of the tapes would also be

admitted, but only as aids–-the tapes controlled in the event of a

discrepancy. The court also invited the defendants to submit their

own competing E nglish transcripts. The court then admitted both

the Spanish tapes and the English transcripts. The Spanish tapes

were played in open court and the jurors had the English

transcripts available to read as they were listening to the tapes.

Lozano argues that the district court abused its discretion

when it admitted into evidence recordings that were in a language

other than English. He contends that such evidence allowed the

jurors to impose their own translation of colloquial expressions,

part icularly with respect to “Valley Spanish.” Lozano suggests

that the English transcript should have been the primary source of

evidence and not the Spanish tapes.

We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Gutierrez-Farias , 294 F.3d 657, 661

(5 th Cir. 200 2). However, as in this case where the defendant

failed to object at trial, we review for pl ain error. U nited

States v. Krout

, 66 F.3d 1420, 1434 (5 th Cir. 1995), citing United

Sta tes v. Olano , 507 U.S. 725 (1993). To prevail under this12

standard, the appellant must show an error that was plain, that

a ffected his substantial rights and that seriously affects the

fairness, integrity or public reputation of judicial proceedings.

The Jones Act, 48 U.S.C. § 864, requires that court

p roceedings in United States federal courts be conducted in

English. M orales-Madera

, 352 F.3d at 4. However, tapes of

recorded conversations are not “tes timony” but are admitted in

evidence as exhibits. This is true whether the taped conversations

are in English or some other language. I d

. At 7. The law is also

clear that the tape recording itself constitutes the best evidence

and that a transcript of that tape is used as an aid to understand

the tap e. United States v. Craig , 573 F.2d 455, 480 (7 t h Cir.

1977).

Lozano reli es upon U nited States v. Valencia

, 957 F.2d 1189

(5 th Cir. 1992), where this court affirmed the exclusion of taped

conversations which took place in Spanish. That case is readily

distinguishable. In V alencia

, only two of the jurors spoke Spanish

and b oth parties stipulated to the accuracy of the English

transcripts of the tapes. In the instant case, however, all of the

jurors spoke Spanish and the parties did not stipulate to the

accuracy of the English transla tion. Furthermore, because the

English trans lation was admitted into evidence, the jurors had

available to them the Engli sh translation of each tape as it was

played and had available both the tape and the English translation13

in the jury room. In the light of these facts, we are satisfied

that the district court committed no plain error in allowing the

jurors to hear the Spanish tapes.

E.

Lozano argues next that the evidence was insufficient to

support his convictions for conspiracy to commit money laundering

and the substantive offense. This court reviews challenges to the

sufficiency of the evidence “in the light most favorable to the

prosecution to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” U nited States v. Brown

, 217 F.3d 247, 254 (5th Cir. 2000).

“The evidence need not exclude every reasonable hypothesis of

innocence, and the jury is free to choose among reasonable

constructions of the evidence.” U nited States v. Cano- Guel , 167

F.3d 900, 904 (5th Cir. 1999). If the evidence supports equally or

gives nearly equal circumstantial support to theories of guilt and

innocence, this Court will reverse because, und er these

circum stances, the jury must necessarily entertain a reasonable

doubt. See

, e.g.

, U nited States v. Sanchez

, 961 F.2d 1169, 1173

(5th Cir. 1992).

The elements of a conspiracy to commit money laundering are:

(l) that there was an agreement bet ween two or more persons to

commit money laundering, and (2) that the defendant joined the

agreement knowing its purpose and with the intent to further the14

illegal purpose. U nited States v. Meshack

, 225 F.3d 556, 573 (5 th

Cir. 2000).

To establish the substantive offense of money laundering under

18 U.S.C. § 1956(a)(1)(A)(i), the Government must show the

defendant “(1) knowingly conducted a financial transact ion; (2)

which involved the proceeds of an unlawful activity; and (3) with

the intent to promote or further unlawful activity.” U nited States

v. Dovalina , 262 F.3d 472, 475 (5 th Cir. 2002).

For purposes of § 1956, a financial transaction can be

established by evidence that cash proceeds from drug traf ficking

are given to the care and possession of another. U nited States v.

Garcia Abrego

, 141 F.3d 142, 160-161 (5 th Cir. 199 8). To satisfy

the promotion element o f a money laundering conviction, the

Government must show that a defendant conducted the financial

transaction in question with the specific intent of promoting the

specified unlawful, activity. U nited States v. Valuc k , 286 F.3d

221, 226 (5 t h Cir. 2002). Payment to co-conspirators for their

participation in the conspiracy for the purpose of continuing the

unlawful activity amounts to “promoting the carrying on of the

unlawful activity.” U nited States v. Wilson

, 249 F.3d 366, 378 (5 th

Cir. 2001).

The Government produced substantial evidence to support

Lozano’s conviction for conspiracy to launder money. Multiple

witne sses place Lozano in charge of the drug organization: Casas

tra nsported drugs, called Lozano if there was trouble with a15

shipment, and verified that a ttorney Flores was on standby to

provide legal advice. Multiple phone intercepts established that

proven drug traffickers had close ties to Lozano and that they

purchased a trailer used to transport drugs with a large cash

payment. The Government produced evidence that members of the

Lozano organization transported drugs and then would receive large

cash payments f or transport back to Lozano back in Texas. This

evidence established the existence of an agreement to conduct

financial transactions that promoted the drug trafficking

enterprise as well as Lozan o ’s knowledge and voluntary

participation in that enterprise. The jury was entitled to reject

Lozan o’s evidence that his large cash purchases for property

vehicles, horses, furniture and other items were made f rom

legitimate income.

With respect to the substantive offenses of money laundering,

various w itnesses testified as to the drug related financial

transactions pe rtaining to each count. Testimony and wire

intercepts established that Lozano asked certain underlings to

bring him drug proceeds on February 28, 2000. (Count 11) Testimony

and wire intercepts established drug related financial transactions

by Lozano’s co-conspirators on March 8 (Count 12), March 13 (Count

13) and March 22, 2002 (Count 14). S ee United St ates v. Garcia

,

917 F.2d 1370, 1377 (5 th Ci r. 1990)(party to a conspiracy may be

held responsible for a subs tantive offense committed by a coconspirator even if that party has no knowledge of that particular4 Lozano complains of the court’s questioning of Jorge

Casas, Angel “Chago” Vela, Sergio Guerra, Ruben Vasquez, Jr.,

Mario Martinez Alejos, and FBI Agents Ernesto Cruz and Jorge

Velasco.

16 substantive offense).

Our review of the record persuades us that the Government

produced substantial evidence that would permit a rational trier of

fact to find Lozano guilty of both the conspiracy and substantive

money laundering counts.

F.

In Lozano’s final assignment of error, he argues that the

district court abused its discretion by interfering with his crossexamination of certain witnesses, thereby depriving him of a fair

trial. Lozano’s brief points to dozens of instances in the record

where the district court interrupted his trial counsel during

cross-examination of the Government’s witnesses. 4 Lozano argues

that the district court’s actions created the appearance that the

district court sided with the Government and lead the jury to

presume guilt. Lozano further argues that the district court’s

multiple statements to the jury explaining its impart iality were

insufficient to cure the constitutional error.

This court reviews a district court’s examination of witnesses

and involvement in a trial for abuse of discretion. U nited States

v. Martinez

, 151 F.3d 384, 390 (5th Cir. 1998). The district court

has wid e discretion over the “tone and tempo” of a trial and may

elicit information from a witnesses if he believes it would benefit5 For example, Lozano argues that the district court

interrupted his trial counsel and called him to the bench just as

17 the jury. U nited States v. Saenz

, 134 F.3d 697 (5th Cir. 1998)

.

In reviewing a claim of partiality by a district jud ge, we must

“determine whether the judge’s behavior was so prejudicial that it

denied the [defendant] a fair, as opposed to a perfect, trial.”

United States v. Williams

, 809 F.2d 1072, 1086 (5th Cir. 1987). To

make this determination, we must consider the distric t court’s

actions as a whole, considering factors such as context, frequency,

and the presence of curative instructions. U nited States v. Lance

,

853 F.2d 1177, 1182 (5th Cir. 1988).

Lozano, in his brief to this court, details literally dozens

of instances where the district court questioned witnesses and made

comments during Lozano’s cross-examination of Government witnesses.

Considered out of context, these numbers appear troubling; however,

when we consider the fact that th is trial lasted 18 days and the

Government presented 65 witnesses, the number of interruptions by

the district court is not unreasonable on its face. The need for

a trial court to question witnesses and clarify testimony is

proportionate to the length of a trial and number of witnesses

presented. Id . at 703; Williams , 809 F.2d at 1087.

Turning to the content of the district court’s actions, a

thorough review of the record reveals that several of the district

court’s actions have been mischaracterized by Lozano in this

appeal. 5 The record also reveals that many of the interruptions“he was about to gain a concession” from the witness regarding

the fact that he had not mentioned [the defendant] to the agent

with whom he was cooperating before he was arrested.”

Appellant’s Brief, p. 25. The record clearly reveals that it was

Lozano’s counsel, not the district court, who requested

permission to approach the bench in order to inform the district

court that he intended to use documents not in evidence. And,

naturally, when the Government expressed concern over the

genuineness of the documents the district court reminded the

Government that they would have a chance to voir dire before the

documents were used. See R. Vol. 28, p. 82-84.

6 For example, Lozano lists the following interruption as

problematic. Here, Lozano’s counsel questions Jorge Casas on

cross and attempts to establish that he is not trustworthy:

Q : Now, Mr. Casas, you have told a lot of lies in your

lifetime, haven’t you?

A : Yes.

Q : You have lied to the DEA agents, right?

A : Yes.

Q : As a matter of fact, when you became an informant, you

signed a contract with the Drug Enforcement Administration,

correct?

A : Yes.

Q : And as part of that contract, was that you not lie,

correct?

A : Yes.

Q : Yet, you lied to them, correct?

A : Yes.

Q : Further, that you were not to be engaged in any drug

trafficking while you were an informant, yet, you went and

ventured on your own drug business while you were an

informant, correct?

A : Yes.

Q : You also lied to other drug dealers, your co-workers or

employees or cohorts, correct?

A : Yes.

Q : You have asked other people to lie, such as, your wife

and your mother-in-law, correct?

A : My ex-mother-in-law and my ex-wife.

Q : And you have asked them to lie when the only one that

would benefit form the lie would be you, correct?

18 were aimed at remedying the often repetitive ques tioning by

Lozano’s atto rney’s. 6 Interruptions of this type become moreA : Yes.

Q : When I say “lie,” Mr. Casas, you instructed them,

actually, to commit perjury, to commit--to say--to tell a

lie under oath, correct?

A : I don’t understand. How is that?

Q : Pardon me. I’m sorry. If they were asked to come in an

testify under oath, you instructed them to lie for you,

correct?

A : Yes.

Q : And your involvement, with respect to drug dealing, you

have also threatened people, correct?

A : Yes.

Q : And it appears as though, Mr. Casas, that every time you

have a problem, that is, you’re caught in a crime, you

decide to join forces with law enforcement against other

people, correct?

A : Yes.

Q : Okay. Now, you have admitted that you have lied to DEA

agents under oath, other drug dealers, asked people to lie

for you and that’s the truth, is it not?

A : Yes.

Q : You’ve also had, for example, in your possession a

driver’s license that had your photo, yet somebody else’s

name; is that correct?

A : Yes.

Q : And you’ve admitted to telling big lies, huge lies,

correct?

THE COURT : How many times are we going to ask the same

question, Mr. Pytel? I think he as made an admission here.

I don’t think we need to be repetitive here.

19 justified as the length of a trial increases. Saenz , 134 F.3d at

704-05; United States v. Adkins

, 741 F.2d 744, 748 (5th Cir. 1984).

The record further reveals that many of the Government’s witnesses

spoke very little English and needed the assi stance of an

interpreter. These language difficulties sometimes required the

district court to ask questions to clarify the witnesses earlier7 For example, on direct examination Sergio Guerra testified

that he had spoken directly with Lozano about hiding a shipment

of marijuana. R. Vol. 31 at 107-108. On cross examination,

however, Sergio Guerra and Lozano’s counsel had the following

exchange:

Q : Has [Lozano] been involved in the drug business? Ever

been involved in the drug business?

A : Not that I know of, but people have tell me.

* * *

THE COURT : And your testimony, you’re also saying that you

also had a conversation yourself with Mr. Lozano, or are

your taking that testimony back?

THE WITNESS : Excuse me, Your Honor.

THE COURT : You said you had a conversation with Mr. Lozano

about some marijuana.

THE WITNESS : Yes.

THE COURT : Or is that not true?

THE WITNESS : That is true.

THE COURT : Ok, go ahead.

R. Vol. 31 at 124-125.

8 During the cross-examination of Angel Vela:

Q : And it was seven months later, in March of this year that

you first met with the FBI agents about your involvement?

THE COURT (to the interpreter): I don’t think it was “the

attorneys” (sic) he said. I think he meant “the FBI and law

enforcement officials” is what he said.

Repeat the question because this wasn’t interpreted

correctly.

R. Vol. 31 at 26.

20 testimony. 7 In addition, the district court was sometimes required

to interject and correct the interpreter. 8 Where a witness’s

testimony is confusing or misinterpreted, a c ourt is certainly

justified in interjecting for the sake of clarity and correctness.

Saenz

, 134 F.3d at 704; United States v. Adkins

, 741 F.2d 744, 748

(5th Cir. 1984). The record also reveals that on some occasions9 For example, on cross-examination of Jorge Casas:

Q : Now, what has happened to all this money that you have

made, Mr. Casas, throughout the years?

A : I’ve made investments.

Q : Such as?

A : The hotel. The shops I have in Mexico.

Q : What else?

A : I’ve bought real estate.

Q : In the United States or in Mexico?

A : In Mexico and here.

Q : Where do you have property here?

A : Right now, I don’t have any.

Q : So that’s a lie?

* * *

MS. PROFIT (Government): Your Honor, I’m going to object.

That–

* * *

THE COURT : I mean, it’s a mischaracterization to say “that’s

a lie.” He didn’t say that he owned it right now. He said

he has invested in property and so that is a

mischaracterization and that’s a proper [objection].

R. Vol. 28 at 47-48

21 the distr ict court interjected because Lozano’s counsel clearly

mischaracterized a witness’s testimony. 9 Finally, the record shows

that throughout the trial the district court repeatedly instructed

the jury tha t nothing he said or did was to be considered as an

endorsement of either party.

We have reviewed all of the passages in the record relied upon

by Lozano in support of his claims that the district court unduly

i nterjected itself into the trial to Lozano’s prejudice. We

conclude that the district court had solid grounds for its comments

and questions as d iscussed above, and thus the district court’s

comments and questions did not amount to an abuse of discretion.22 III.

For the reasons stated above, we conclude that Lozano’s

assignments of error are without merit. The judgment of the

district court is

AFFIRMED