* Circuit Judge of the Eighth Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-10180

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARISELA BEJAR SANCHEZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

March 21, 2003

Before JOLLY, HIGGINBOTHAM, and MAGILL, * Circuit Judges.

HIGGINBOTHAM, Circuit Judge :

A jury found Marisela Bejar Sanchez guilty of one count of

conspiracy to commit offenses against the United Stat es in

violation of 18 U.S.C. § 371 and five counts of making and using

false statements and documents in a matter within the jurisdiction

of the Small Business Administration, and aiding and abetting, in

violation of 18 U.S.C. §§ 1001-02. Sanchez urges here that the

district court deprived her of a fair trial by making comments and2

questioning witnesses in a manner partial to the prosecution and

that the questions and co mments had the cumulative effect of

prejudicing the jury against her. We cannot agree, and affirm her

conviction.

I.

Sanchez, her husband, Willie Sanchez, and her father, Luis

Bejar, were partners in an auto repair business, known originally

as “Slick Rick’s Automotive Repair” and later as “R.A.C.E.,” Rick’s

Automotive Car Experts. Rita Barton was an accountant hired by the

partners to provide bookkeeping services for the business and

prepare individual and partnership income tax returns for the

partners.

When, in June 1994, the partners’ automotive repair business

fell into financial distress, Barton suggested to Sanchez that the

partners could apply for a federally guaranteed small business loan

to expand to include vehicle emissions inspections. Barton advised

Sanchez that the partnership would not qualify for the small

business loan if Sanchez and her husband were listed on the loan

application because Sanchez and her husband both had bad credit

histori es; however, because Bejar had a good credit history, he

could qualify for the small business loan if he was listed as the

sole proprietor of the automotive repair business.

Sanchez allegedly spo ke to Bejar about Barton’s suggestion,

and Bejar agreed to apply for a small business loan as the sole3

proprietor of the family’s automotive repair business. On June 4,

1994, Sanchez caused an assumed name certificate to be filed in

Dallas County, Texas, showing Bejar as the sole owner of an

automotive repair business named “R.A.C.E.” On December 30, 1994,

Bejar applied to the Money Store, a preferred lender for the Small

Business Administration, for a federally guaranteed small business

loan in the amount of $156,000. According to the application, the

loan was supposed to be used for the ac quisition or repair of

machinery, or both, and other business expenses related to the

operation of the automotive repair business. The application

indicated that Bejar was the sole owner of the business.

Bejar had good credit, but apparently Bejar did not have an

adequate income history to qualify for the small business loan. To

overcome this problem, in late 1994 Barton created false income tax

returns for Bejar that exaggerated Bejar’s income for 1991, 1992,

and 1993. Bejar signed these false returns, and Barton obtained

false IRS verifications for these returns from an IRS employee whom

Barton bribed.

While Bar ton was preparing Bejar’s small business loan

applica tion, Sanchez approached Robert Roy Cook, a salesman for

Technical Service and Equipment, Inc., an automotive service

equipment company. Sanchez told Cook that she was interested in

expanding R.A.C.E. and buying automotive service equipment. Cook

testified that Sanchez initially indicated that R.A.C.E. would use4

the proceeds of its small business loan to buy about $100,000 of

equipment; however, Cook testified that Sanchez later told him that

R.A.C.E. would not buy that much equipment because she wanted cash

back from the loan. The loan required the borrower to provide a

cash infusion in the amount of 25% of t he face value of the loan

and could only be used to purchase automotive services equipment

and pay off other legitimate business expenses. Therefore, Cook

prepared false business letters, sales invoices and other documents

showing payments of approximately $39,000 from R.A.C.E. to

Technical Service for various pieces of automotive services

equipment. At some point during this same time period, Sanchez

began working for Barton, assisting her accounting business.

The Money Store disbursed the $156,000 loan on March 15, 1995,

through three escrow checks: (1) a check in the amount of $151,500

payable to Technical Service; (2) a check in the amount of $2,184

payable to the SBA to cover the SBA’s fees; and (3) a check in the

amount of $2,316 payable to Bej ar to cover miscellaneous closing

expenses. Cook deposited the $151,500 check in Technical Service’s

bank account but promptly w rote Sanchez two checks from that

account that covered most of the proceeds of the small business

loan: one check in the amount of $40,000 was payable to “Race”, and

another check in the amount of $76,500 was payable to Sanchez,

personally. Sanchez subsequently deposited the $40,000 “Race”

check in R.A.C.E.’s bank account at Compass Bank on March 20, 1995.1 The government ultimately dismissed the charges against

Bejar after it determined that Bejar had no interest in the loan

and no knowledge of the true nature of the fraudulent loan scheme.

5 Sanchez cashed the second check for $76,500 and used it to purchase

two cashier’s checks payable to herself in the amount of $45,000

and $30,000. Sanchez ultimately deposited the $45,000 cashier’s

check in the R.A.C.E. bank account at Compass Bank and endorsed the

$30,000 check to Fairfield Investments.

From March 15, 1995, until May 23, 1996, Sanchez made about

ten payments on the small business loan. In August 1997, after

Sanchez stopped making payments on the small business loan, Bejar

was forced to file for bankruptcy, listing the small business loan

and several obligations related to R.A.C.E. as his debts. The SBA

ultimately covered the outstanding balance of Bejar’s debt to The

Money Store.

On March 8, 2000, Sanchez, Bejar, and Cook were indicted on

one count of conspiracy to commit offenses against the United

States in viola tion of 18 U.S.C. § 371 and on eleven counts of

making and using false statements and documents in a matter within

the jurisdiction of the SBA (and aiding and abetting the same) in

violation of 18 U.S.C. §§ 1001-02. 1 Barton, the accountant, was

also charged with similar crimes in a separate indictment. She

entered into a plea agreement with the government and pled guilty

to two counts charging violations of 18 U.S.C. §§ 371 and 1001.2 United States v. Saenz , 134 F.3d 697, 701 (5th Cir. 1998).

3 Id. (internal quotations and citations omitted).

4 Id.

6 From July 10 through July 17, 2001, Sanchez was tried before

a jury in the United States District Court for the Northern

District of Texas. The jury convicted Sanchez on the conspiracy

count and on the five substantive counts related to the submission

of Bejar’s false income tax returns and Technical Service’s false

invoices. It acquitted Sanchez on six substantive counts based

upon the submission of false IRS tax verifications, false business

letters from Technical Service, and a false statement from Pain

Webber. Sanchez timely appealed.

II.

Because Sanchez’s counsel did not object to the questioning of

witnesses by the judge, we review the district court’s conduct only

for plain error. 2 Plain error is “clear” or “obvious” error that

affects “substantial rights” of the d efendant and “seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” 3

As we explained in Saenz

, a trial judge has wide discretion

over the “tone and tempo” of a trial and may elicit further

information from a witness if he believes it would benefit the

jury. 4 Federal Rule of Evidence 614(b) permits the trial judge to

“interrogate witnesses, whether called by [himself] or by a5 Fed. R. Evid. 614(b).

6 Saenz , 134 F.3d at 701.

7 Id. at 702.

8 Id.

9 Id. (internal quotations and citations omitted).

10 Id. (internal quotations and citations omitted).

7 party.” 5 In exercising this discretion, the trial court may

question witnesses and elicit facts not yet adduced or clarify

those previously presented. 6 However, a judge's questions must be

for the purpose of aiding the jury in understanding the testimony. 7

Furthermore, the trial court's efforts to move the trial along may

not come at the cost of “strict impartiality.” 8

In reviewing a claim that the trial court appeared partial,

this court must review the entire record and the “totality of the

circumstances” surrounding the judge’s conduct to “determine

whether the judge's behavior was so prejudicial that it denied the

defendant a fair, as opposed to a p erfect, trial.” 9 To rise to

the level of a constitutional error, the district judge's conduct,

viewed as a whole, must amount to a “quan titatively and

q ualitatively” substantial intervention that could have led the

jury to “a predisposition of guilt by improperly confusing the

functions of judge and prosecutor.” 108 III.

Sanchez argues that, as in Saenz

, the outcome of the trial

hi nged on the jury’s evaluation of the credibility of the

government’s key witnesses and that the court committed plain error

by making comments and asking questions that were partial to the

prosecution and prejudiced the jury against Sanchez.

A.

The first alleged error occurred during the testimony of Rita

Barton, the accountant who helped create and package the fraudulent

loan materials for submission to the lender. The argument is that

the district court improperly rehabilitated Barton by its actions

on four occasions d uring Barton’s testimony. The first incident

occurred when the district co urt questioned the fairness of

impeaching Barton with a statement taken from investigative notes.

The second incide nt occurred when the district court interrupted

the defense’s cross-examinatio n to clarify that Barton had pled

guilty to charges related to one of the fraudulent loans and

“accepted responsibility” for her actions. The third incident

involved the dis trict court cutting short defense counsel’s

questioning about the number of fal se statements Barton had made

for which she had not been charged. The district court informed

the jury that Barton was a “serial fraud liar,” tha t she had

“plenty of motive to want to please the government,” and that “her

testimony should be weighed by you with great caution and great11 See Morre v. United States

, 598 F.2d 439, 442 ( 5th Cir.

1979).

9 care.” The final incident concerned defense counsel’s attempt to

impeach Barton by noting that although she agreed to take a

polygraph as part of her plea agreement, the government never asked

her to take one. The district court gave the jury an extensive

instruction that the results of polygraphs are inadmiss ible and

“would be a big fat goose egg and wouldn’t have anything to do with

anything going on in these four walls.”

While some of the distri ct court’s interventions during the

cross-examination of Barton may have been inadvisable, they do not

rise to the level of plain error. The district court was

exercising its proper role of making evidentiary rulings and using

its discretion to prevent repetitive and cumulative evidence. 11

Viewed in context, these questions and comments do not demonstrate

partiality on the part of the district court. In fact, the court

made several comments damaging to Barton’s credibility, including

calling her a “lying, thieving, prevaricating, false-statementgiving thief and con person” who “obviously has plenty of motive to

lie to ge t the government to maybe give ... her the benefit of a

lesser sentence.” The court did not substantially interfere with

the defense’s impeachment of Barton.

B.12 The comment by the court followed a heated exchange between

defense and prosecution counsel and reads:

What did everyone have for lunch? First of all, just –

chill out. And – and your [the witness’s] overall

demeanor, best I an tell, no one can lay a glove on you,

you’re in the clear, it’s over for you. So everybody

needs to relax, listen to the question an d answer the

question.

10 Next, Sanchez alleges that the district court interfered with

the cross-examination of Robert Cook, the employee o f Technical

Service who produced false invoices and letters that were used in

the loan application. Sanchez alleges that the district court

improperly rehabilitated Cook following the defense attorney’s

impeachment of Cook with inconsistent statements.

She objects to the district court’s statement that “best I can

tell, no one can lay a glove on you, you’re in the clear, it’s over

for you.” In context, the court was trying to calm both the

witness and the lawyers, nothing more. 12

As to the lectur ing of defense counsel about proper

impeachment techniques, the court was not plainly in error. The

trial judge instructed defense counsel not to impeach the witness

with statements that were not his, but were instead statements from

the investigator’s interview notes. Even assuming the district

court misstated the rules of evidence, which is by no means clear,

making evidentiary rulings is entirely appropriate and the

instructions were invited by the defense counsel’s question to the13 Id.

11

court on how he was to proceed. The district court did not stray

from neutrality or act improperly. 13

C.

Sanchez’s third compl aint is that the district court

improperly interfered with the impeachment of investigating agent

Jones. Defense counsel was impeaching the witness by referencing

the witness’s testimony before the grand jury. Throughout the

trial, defense counsel and the district court h ad numerous

discussions on the proper technique for impeaching a witness with

a prior inconsistent statement. In questioning agent Jones,

defense counsel apparently attempte d to impeach her by attacking

her character pursuant to Rule 608(b) by pointing out that she had

misled the grand jury. The district court interrupted, assuming

that defense counsel was again using the grand jury testimony as an

inconsistent statement, and instructed defense counsel that agent

Jones had not yet made a statement that was inconsistent with her

grand jury testimony. Defense counsel noted his objection for the

record, and the district court overruled the objection stating that

it was “improper impeachmen t.” Sanchez argues this exchange

created an appearance of bias.

While the district court’s ruling of “imprope r impeachment”

was erroneous, it was based on defense counsel’s previous conduct

and failure to object properly. The district court thought this14 United States v. Saenz , 134 F.3d 697, 707 (5th Cir. 1998).

12 another attempt to impeach with an inconsistent statement, and

defense counsel did not c orrect the court’s error. Instead,

defense counsel invoked the rote , “goes to credibility,” rather

than urging that the effort was to show by specific acts that agent

Jones was untruthful. Given the context and the previous

discussions of impeachment with inconsistent statements, the

district court did not act improperly.

D.

The final complaint is that on several occasions the district

court questioned witnesses and elicited responses that were harmful

to the defendant. We noted in S aenz that “[t]he mere fact that the

trial court i tself, not the prosecution, elicited ... damaging

information contributed to the perception that the court was

helping the government.” 14 Aware of this reality, these allegations

must be examined closely.

The first incident occurred during the defense’s crossexamination of Barton. The witness asked to clarify an answer, and

when defense counsel instructed her that the court would probably

prefer that they move on, the court interrupted and allowed the

witness to clarify her answer. The clarification implicated the

defendant when the witness testified that Sanchez knew that Barton

had to “take care of business” at the IRS, although Sanchez did not

k now any details. The court then asked if this occurred while13

Sanchez was working for Barton, and if Barton was “seeing [Sanchez]

on a daily basis,” to which Barton answer ed yes. This testimony

made it more likely that Sanchez knew that Barton was falsifying

documents.

D efense counsel later tried to clarify that Sanchez was not

working for Barton at the time. In response to an extended series

of questions on this point, the district court stated, “All this is

because I asked her if she was

- if Marisela was working for her at

the time the documents were sent in and she said yes?” The

argument is that this comment suggested to the jury that defense

counsel’s questions were not import ant, minimizing the impact of

his attempt to clarify when Sanchez was working for Barton.

The next incident occurred during the cross-examination of

agent Jones. Defense counsel asked agent Jones a series of

questions to determine who approached Cook about creating the false

invoices. The court interrupted and stated:

Look, look, life’s too short for this. And I hesitate to

get involved here, but we’ve taken about eight questions

to get to the very first question you asked that she

didn’t understand, that she didn’t answer. He asked you

who dummied up

– your understanding, your belief from six

years of living with this, who dummied up the invoices.

That’s what he asked you eight questions ago. And now

we’re going through all this.

In response to this statement the witness responded, “Bob Cook

dummied them up at the direction of Marisela Sanchez.”

In fact, the qu estion defense counsel had asked agent Jones

was who had approached Cook, not who dummied up the invoices.14

While the district court slightly misstated the question, the

answer was responsive to defense counsel’s initial question. When

defense counsel continued his questioning abo ut who approached

Cook, the witness repeated that Sanchez had asked Cook for the

false invoices and Barton had asked for false letters in support of

the invoices. Defense counsel then attempted to impeach Jones by

pointing out that she had initially told prosecutors that B ejar,

Sanchez, and Barton had asked Cook for false documents, rather than

just Barton and Sanchez.

The final incident occurred near the end of trial, during the

cross-examination of agen t Jones, and was potentially the most

damaging to the defense. Defense counsel was trying to establish

that Jones had testified to the grand jury that Bejar was involved

in the scheme and that was the reason the grand jury had indicted

Bejar. The defense was emphasizing that contrary to Jones’s grand

jury testimony implicating Bejar, Jones and the prosecution did not

implicate Bejar at trial. After both sides had finished

questioning Jones, the following exchange took place.

THE COURT: Okay. Let’s talk about the grand jury

a minute since there has been so much talk about that and

what really is going on here.

Isn’t it true that you went to the grand jury before

your investigation is complete in this series of cases?

THE WITNESS: Yes, sir.

THE COURT: And there’s a real good reason for that,

isn’t there?15 THE WITNESS: Yes, sir.

THE COURT: Did you ever have any talk with the

government about the statute of limitations in this case?

THE WITNESS: Yes, sir.

THE COURT: From March – the indictment was

returned, I guess, on March 8 of 2000. Right?

THE WITNESS: Yes.

THE COURT: And the first funded loan was this one,

March 15?

THE WITNESS: March 15th.

THE COURT: Of ‘95?

THE WITNESS: Yes, sir.

THE COURT: A week shy of five years. Correct?

THE WITNESS: Yes, sir.

THE COURT: And after – is it true that at the time

you went to the grand jury, you did not

– you had not

completed your investigation, and as an unfortunate

consequence of that, maybe some people got indicted that

shouldn’t have been ?

THE WITNESS: Yes, sir.

THE COURT: Chief among them being Luis Bejar ?

THE WITNESS: Yes, sir.

THE COURT: And the reason for that is you were just

going off of documents –

THE WITNESS: Yes, sir.

THE COURT: – rather than completing the

investigation and actually interviewing the people to

figure what was going on.

THE WITNESS: Yes, sir. Time was running out.

[Defense Counsel]: Ask a couple follow-up questions

to the Court’s questions?15 Emphasis added.

16 THE COURT: Well, it’s the government’s turn.

Anything else?

[Prosecutor]: All right. With respect to the

statute of limitations

– I don’t have any other questions

to ask.

THE COURT: W hen something is true, that’s probably

the best way to handle it.

[Prosecutor]: Yeah, thank you. 15

It is apparent from the court’s le ading questions that the

court believed that Bejar was indicted only as a result of the rush

to obtain indictments before the statute of limita tions ran out,

rather than because he was guilty. The court’s final statement,

“When something is true, that’s probably the best way to handle

it,” left no doubt that the court believed this is what happened,

rather than simply putting it forward as one possible scenario of

events.

Sanchez argues that this evidence devastated the defense that

the government believed that Bejar was part of the scheme and

indicted him, and that Bejar changed his story to implicate Sanchez

in order to save hi mself after he was indicted. Sanchez argues

that by providing the jury with an innocent explanation for why

Beja r was indicted and the charges later dropped, the judge’s

leading questioning and comments destroyed the defense theory that

Bejar changed his story to avoid punishment.16 See United States v. Saenz , 134 F.3d 697, 702 (5th Cir.

1998).

17 Id. (internal quotations and citations omitted).

17 The court’s questions and comments clearly helped the

prosecution. While the court’s explanation was apparently true,

the fact that the court elicited the information potentially gave

the appearance that the court was partial to the prosecution,

particularly because of the leading nature of the questions and the

court’s comment that “[w]hen something is true, that’s probably the

best way to handle it.”

IV.

We must consider the totality of the court’s behavior in view

of the entire record to determine if there was a constitutional

violation

. 16 When viewed in totality, the court’s questioning of

witnesses, comments on the evidence, and evidentiary rulings do not

amount to a “quantitatively and qualitatively” substantial

intervention that could have led the jury to “a predisposition of

guilt by improperly confusing the functions of judge and

prosecutor.” 17 While Sanchez’s contentions have force and rest on

what is at best inadvisable int erventions by the district court,

they are only a part of the court’s involvement in the trial. A

trial is not a scripted sta ge performance but rather it is a

dynamic and highly charged process which must be judged as a whole

and not in chosen segments. The number of times the court was18 Id. at 699.

19 Compare United States v. Cantu

, 167 F.3d 198, 203 (5th Cir.

1999), with Saenz, 134 F.3d at 709 (noting that the court is

particularly sensitive to a trial judge’s question ing of a

defendant).

18 required to intervene in the trial, each in an entirely appropriate

manner, blunts the effect of the complained-of incid ents. 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.

Sanchez argues that this case is indistinguishable from Saenz

,

where we found that the district court’s action had deprived the

defendant of a fair trial. We do not agree, as the same “unusual

combination of circumstances” is not present here. 18

In Saenz

, the trial court interrogated both the defendant and

the government’s only cooperating witness extensively and elicited

testimony that damaged the defendant and bolstered the government’s

witness. We reversed, in part, because the outcome of the case

“hinged” on the jury’s assessment of the credibility of the

competing testimony of the defendant a nd the witness for the

prosecution.

In contrast, Sanchez did not testify on her own behalf, as

Saenz did, and faced no improper questioning from the judge. 19 It

is true that the credibility of Barton, Cook, and Jones was

important, but the case did not “hinge” on the jury’s assessment of20 See Cantu

, 167 F.3d at 203 (distinguishing Saenz on similar

grounds).

21 Id. (distinguishing Saenz on similar grounds); United States

v. Lankford , 196 F.3d 563, 572-73 (5th Cir. 1999) (same).

19 the credibility of two competing witnesses, as it did in Saenz

. In

fact, the governmen t ’s case against Sanchez featured multiple

witnesses, including coconspirators and law enforcement officials,

as well as documentary evidence that showed that Sanchez personally

participated in the process of obtaining the small business loan

and that Sanchez personally received the proceeds of the loan from

Cook. 20

Finally, in this case, the district court’s comments and

questions were not nearly as extensive or as inherently prejudicial

as the trial court’s comments and questions in Saenz

. 21 While the

comments concerning the indictment of Bejar brought the judge close

to the line, Sanchez overstates the importance of Bejar’s

ind ictment to the defendant’s case. As the defense noted in its

opening statement, “Luis Bejar may or may not have known” that Rita

Barton fabricated the l oan documents. Sanchez’s defense did not

hinge on Bejar’s knowing involvement in the crime, nor did the

testimony elicited from Jones rule out the possibility that Bejar

was lying on the stand concerning his daughter’s involvement.

V.

Some of the district court’s comments were unwise, but after

a review of the entire record we cannot say that the incidents20

complained of deprived Sanchez of her fundamental right to a fair

trial. Specifically, we are not persuaded that they seriously

affected the fairness, integrity, or public reputation of the

judicial proceeding. Therefore, we AFFIRM.