* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except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

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11285

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSELLER FRANCO, also known as Roy Franco,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:97-CR-37-R-4)

_________________________________________________________________

June 10, 1999

Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM: *

For Roseller Franco’s challenge to his conviction for

conspiracy to commit mail fraud, primarily at issue are the

district court’ s comments on the evidence and its criticisms of

defense counsel. We AFFIRM

.

I.

Fifteen persons and Franco, who served as office manager for

two law offices, were indicted for conspiracy to commit mail fraud,

in violation of 18 U.S.C. § 371, and for conspiracy to launder

money, in violation of 18 U.S.C. § 1956(h). Because all of- 2 -

Franco’s co-defendants were either fugitives or pleaded guilty, the

case proceeded to trial solely against Franco.

At trial , the Government presented evidence of Franco’s

participation in a scheme in which runners recruited “victims” to

participate in staged automobile accidents; medical providers

generated false medical records and bills for the “victims”; law

office personnel, including Franco, used the false medical records

and bills to make claims against insurance companies on behalf of

the “victims”; proceeds from settlements were d ivided among the

participants in the scheme; and the medical clinics and law offices

made a second round of kickback payments to investors who had

financed the scheme.

Franco testified. He admitted filing insurance claims, making

cash payments to runners, and paying and receiving kickbacks, but

denied knowing either that the accidents were staged or that the

claims were fraudulent.

The jury convicted Franco for conspiracy to commit mail fraud,

but acquitted him on the money laundering conspiracy charge.

Franco was sentenced, inter alia

, to 60 months imprisonment and was

ordered to pay approximately $2.7 million in restitution.

II.

Franco maintains that the district court violated its duty to

conduct the t rial impartially; that it erred by refusing his

requested instruction on reasonable doubt; and that a Government

witness’ testimony should have been suppressed because it was

obtained in violation of 18 U.S.C. § 201(c)(2).- 3 - A.

Franco, represented by the Federal Public Defender on appeal,

charges that t he district judge deprived him of a fair trial by

unfairly criticizing Franco’s retained trial counsel, Raymond Jobe,

and by improperly commenting on the evidence in the jury’s

presence. Asserting that such comments and criticisms unfairly

prejudiced his defense, he points to the initially deadlocked jury

as demonstrating that the Government’s proof was not overwhelming.

The Government counters that Jobe’s disruptive conduct

(repeated refusal to follow the district cour t’s instructions,

inappropriate and unfair comments in the presence of the jury,

unnecessarily formal and time-consuming objections, and use of

disingenuous tactics to confuse the jury) necessitated the court’s

actions in order the control the courtroom; that the comments on

the evidence were legitimate and appropriate to avoid unnecessary

confu sion of the jury caused by Jobe’s inappropriate and

unprofessional tactics; and that Franco was not prejudiced, because

the court’s comments were directed at Jobe, not Franco.

Federal district judges “have wide discretion with respect to

the tone and tempo of proceedings before them; they are ‘not mere

moderators or hosts at a symposium’”. U nited States v. Adkins

, 741

F.2d 744, 747 (5th Cir. 1984) (quoting United States v. Perez

, 651

F.2d 268, 271 (5th Cir. 1981)), cert. denied

, 471 U.S. 1053 (1985).

The trial judge has a duty to conduct the

trial carefully, patiently, and impartially.

He must be above even the appearance of being

partial to the prosec u tion. On the other

hand, a federal judge is not a mere moderator

of proceedings. He is a common law judge- 4 - having th at authority historically exercised

by judges in th e common law process. He may

comment on the evidence, may question

witnesses and elicit facts not yet adduced or

clarify those previously presented, and may

maintain the pace of the trial by interrupting

or cutting o ff counsel as a matter of

discretion. Only when the judge’s conduct

strays from neutrality is the defendant

thereby denied a constitutionally fair trial.

Id

. at 747-48 (footnotes omitted) (quoting Moore v. United States

,

598 F.2d 439, 442 (5th Cir. 1979)). And, “even if the trial judge

does commit error in such a respect, the complaining party must

prove that the error was substantial and that it prejudiced his

case”. I d

. at 748; see also United States v. Lance

, 853 F.2d 1177,

1182 (5th Cir. 1988).

Franco lists what he considers “the more egregious examples of

the trial judge’s remarks”. We address each; but, of course, “in

determining whether a trial judge ov erstepped the bounds of

acceptable conduct–that is, violated his duty to conduct the trial

impartially–we must view the proceedi ngs as a whole”. I d

.

(internal quotation marks and citation omitted).

1.

a.

First, Franco complains that his counsel’s insistence on

obtaining rulings on objections antagonized and irritated th e

district j udge, resulting in his criticizing counsel in the

presence of the jury. Franco quotes the following colloquy:

MR. JOBE: I object to the Court’s

comments respectfully.

THE COURT: Fine. The record is clear,

but just move ahead.- 5 - MR. JOBE: I apologize. I respectfully

object to the Court’s comment as a comment on

the weight of the evi dence. Would ask for a

ruling respectfully on that objection.

THE COURT : No. You know you must not

practice in federal court. You don’t have to

ask. The rulings are automatic. What I’ve

done, your record is clear and you’ve got a

record, and you can appeal on it. You don’t

have to make those kind o f objections. This

isn’t state court. Just proceed.

MR. JOBE: Your Honor --

THE COURT: Will you ask the questions,

please, Mr. Jobe?

MR. JOBE: Your Honor, I’m a poor lawyer,

but I have to do what I think is be st for my

client. Respectfully I’m doing that. So I

obj ect to the Court’s not making a ruling on

the objection. I’m going to proceed.

THE COURT : Please do. Please, please

do.

As the Government notes, Franco omits w hat immediately

prec eded this exchange. Most of the defendants were Filipinos.

Jobe was cross-examining Arlene Patacsil, a Filipino co-defendant,

who had just testified about her discussions with other codefendants regarding staging automobile accidents. The following

occurred immediately prior to the above-quoted comments:

Q [by Mr. Jobe] Is it your testi mony to

this jury that everybody that has any

P hilippine blood in them is guilty in this

case?

[PROSECUTOR]: Objection.

THE COURT: Now that is a totally

inappropriate question, and you know that, Mr.

Job e.... Now just move on to another

question. If you want to ask her if every law

office manager who happens to be a Philippine

nam e, that’s one thing. But she’s never- 6 - insinuated nor has the government insinuated

that everybody who’s Philippine is crooked.

That’s obviously wrong. There are lots of

honorable Philippines in this country. That’s

a slam on a race, and that’s not right.

Question hard as you want about this case.

Franco asserts that similar exchanges occurred throughout the

trial, with Jobe objecting, the district judge telling him, “Fine”,

or “Move along”, and Jobe objecting to the lack of a ruling. The

Government counters that Jobe’s insistence on the formalistic and

unnecessary procedures of Texas state courts, in disregard of the

district court’s instructions, was a dising enuous attempt to

provoke the court’s displeasure and thereby seek to incur sympathy

from the jury.

In any event, based on our review of the record, the district

judge did not criticize Jobe unfairly. Contrary to Franco’s

portrayal, the court’s criticism was not directed solely at Jobe;

the prosecutors were also admonishe d by the court on quite a few

occasions. The example cited by Franco is merely one of numerous

instances in which the district court dil igently, and quite

properly, exercised its prerogative to move the trial forward

expeditiously and efficiently.

b.

Next, Franco complains of the followi ng comment by the

district judge to Jobe, in the jury’s presence:

You know if you poor-boy me too much more,

I’ll give you a chanc e to get another lawyer

if you think you’re having that much trouble.

As always, this comment must be considered in context. When

it occurred, Jobe had been examining the case agent, Clarke, called- 7 -

by Franco as a hostile witness, about o ther Government

investigators’ notes of their first inte rview with Franco’s codefendant, Arlene Patacsil. Jobe sought to establish that Patacsil

had not mentioned Franco in that interview. Although both Patacsil

and Clarke had been questioned previously about that subject, Jobe

persisted:

Q Well, you know strangely enough, I don’t

know whether you noticed it, but I noticed it.

Strangely eno ugh, Ms. Patacsil never

implicated my client until her lawyer wasn’t

present. If you’ll look at these reports that

you generated --

[Prosecutor]: Is that a question?

Q (By Mr . Jobe) Yes, I’m going to ask you

to confir m that. Confirm that for me if you

would.

We have thi s -- first, this is when you

raided the clinic. This is when you first

raid ed the clinic. You said, do you have a

l awyer at that time. I shouldn’t say “you.”

When the government raided this clinic, that’s

the first interview, and Ms. Patacsil doesn’t

mention my client a t all. You don’t dispute

that, do you?

A Again, I wasn’t present during this

interview. I was at a different clinic.

Q Sir, you can look at the record and

determine whether you dispute that, can’t you?

A I can take time to review it.

Q Well, that’s all right. Do you doubt

that she did?

A I haven’t read the memo, sir.

Q You never read the memo?

A No, sir.- 8 - Q You mean before you interviewed Ms.

Patacsil, you never read the memo when you did

before?

A No, sir, I jus t heard she had made some

incriminating statements and that she would be

somebody we would follow up on talking to.

Q Go ahead and take your time. Do you see

in that first interview she even mentioned Mr.

Franco?

[Prosecutor]: Your Honor, I’m going to

object at this point. I think it’s been

established. It’s cumulative.

THE COURT: Sustained.

MR. JOBE: Your Honor, I cannot ask the

question?

THE CO URT: No, you’ve already asked it

several t imes, and he has told you. There’s

nothing in here where she puts the finger on

your client on the first interview. Let’s go

on.

Q (By Mr. Jobe) February 20, 1996, this is

the interview where you –

[Prosecutor]: Objection, cumulative,

Your Honor. We’ve been over and over this.

THE COURT: Done the same thing. Why

don’t you pick the one where you say, Mr.

Jobe, is the first time she tried to point the

finger at him and then let him dispute.

MR. JOBE: Well, Your Honor, I’m doing

the best job I can with what I’ve got. I’m

sorry if –

THE COURT: You know if you poor-boy me

too much more, I’ll give you a chance to get

another lawyer if you think you’re having that

m uch trouble. Now go back to the stand and

ask the question, isn’t it a fact the first

time she put th e finger on my client was at

the interview of blank date.

Q ( B y Mr. Jobe) Isn’t it true that the

first t ime Ms. Patacsil put the finger on my- 9 - client was at the interview on July 19, 1996?

Considered in the context of the reco rd, and especially of

Jobe’s repetitious questioning, the district court’s criticism was

not unwarranted; again, the court was more than justified in

attempting to move the trial forward.

c.

The next example cited by Franco also occurred during Jobe’s

examination of Agent Clarke. When Jobe objected that the witness’

answer to a question was non-responsive, the court responded:

No, you asked him an argumentative question.

He gave you an argumentative answer. A pox on

both of you.

Franco asserts erroneously that the “pox” comment was directed at

his counsel, not at the Agent.

Again, Franco has taken the quoted remark out of context. The

Agent had testified previously that he had prepar ed summaries of

the fraud amount based on the intended loss

– the initial

settlement demand to the insurance company, which he estimated at

three and one half times the amount of the medical bills. Jobe was

attempting to e stablish that the settlement demand was usually

larger than either the subsequent settlement or the actual loss.

Q You’re basing your calculation of fraud

on what you have calculated is what , in your

opinion, based on Ms. P atacsil and based on

other sources, unidentified sources in the

insurance industry, you believe these people

may have wanted, right? Is that what your

testimony is in terms of a demand?

A That’s correct. It’s [a] very

conservative figure at that.

Q Well, it doesn’t have anything to do with- 10 - the actual amount of the fraud, right? I

mean, it’s not based on any actual amount of

fraud, the figure you’re putting it at?

A Again, that’s argumentative. Again, if

an insu rance company paid out six times of

m edical bills, I don’t think that Mr. Franco

would have turned that down.

MR. JOBE: Object, non-responsive.

THE COURT: No. You asked him an

argumentative question. He gave you an

argumentative answer. A pox on both of you.

Come on. Let’s go. You got any more

questions, please.

Jobe’s examination of the Agent prior to this exchange had

been extremely contentious, promp ting the court to admonish both

Jobe and the witness on several occasions. The district court

obv i ously recognized that those previous admonitions had been

ineffective; that the examination had degenerated into unproductive

argument between counsel and the witness. The court understandably

expressed its irritation with both the witness’ and counsel’s

disregard of its previous attempts to move the questioning into a

more productive area.

d.

The next example used by Franco is the court’s response to

counsel’s request for Jencks Act mate rial during his crossexamination of one of Franco’s co-defendants:

THE COURT: You know, that’s not a proper

thing to do in front of the jury. You know

t hat. All you had to do was ask it at a

recess, and we can get that.

Franco asserts that the Government had not objected to the Jencks

request but, nevertheless, the district court, sua sponte

, pointed- 11 -

out the transgression and imputed bad faith to Franco’s attorney.

Immediately prior to the challenged statement by the court,

Jobe interrupted his cross-examination of a witness to request the

Jencks material, implying both that it existed and that the

Government had failed to produce it:

MR. JOBE: For the record, Your Honor, we

have been provided with out of six meetings,

only one statement. I would like for the

government to reassure me tha t there is no

other out of all these other meetings, there’s

no written Jen[c]ks material that I can

review.

In addition to being inappropriate in front of the jury,

Jobe’s request was more than just poorly timed; it violated the

district court’s prohibition of bench conferences during trial.

The court’s mild criticism of Jobe, and its subsequent reiteration

that matters to be taken up outside the presence of the jury were

to be handled during recesses, were quite appropriate responses to

Jobe’s extremely inappropriate comments and interrupti on of the

trial.

e.

The final presented example of allegedly unwarranted criticism

occurred when the prosecutor mistakenly referred to Franco as a

lawyer; the court immediately pointed out that Franco is not a

lawyer, and the prosecutor apologized for the mistake.

MR. JOBE: Your Honor, if I could. We

object ... to the interruption and correction

t here because of the fact, I mean, I don’ t

disagree.

THE COURT: You know something, I run my

c ourtroom. You just do your job as a lawyer

and I’ll run my courtroom. And [if] I think a- 12 - witness i s making a mistake about one of the

people in here, I’ll correct it. If you don’t

like it, it’s okay. The record is there and

you’ve got every objection. Now sit down and

let’s go.

MR. JOBE: Your Honor, I object –

THE COU RT: Fine. Now sit down. I’ve

told you to sit down.

MR. JOBE: Your Honor –

THE COURT: Sit down and zip your lip.

MR. JOBE: Your Honor, I object to the

comments on the weight of the evidence, and if

I don’t make the objection now –

THE COURT: Now, that is not right, and

that i s not the law. And I’m telling you

right now, don’t you interrupt me again. I’m

doing something to make sure that these people

understand exactly what’s going on. Your

client is not a lawyer, and I pointed that out

to them. Now that, just there it is. It’s on

the record. You don’t need to say anything.

Proceed, please.

After the jury had been excused at the conclusion of that

day’s testimony, the court allowed Jobe t o make a record of his

objection. Jobe asserted that, when the court stated that Franco

was not a lawyer, the court gave the witness information that the

witness did not have previously. Franco also complains now about

the court’s comments during the exchange that followed:

MR. JOBE: Your Honor, with all due

respect, my impression was that [the] Court

was extremely hostile and upset with me, and I

mean –

THE COURT: That didn’t have anything to

do with your questioning the witness. You

know, you have this id ea that I have to sit

here as a deaf mute and not say anything.

First of all, you’re dead flat wrong. I have

a right to comment on the evidence if I please- 13 - to do so. I rarely do, and I haven’t done in

this case other than on some occasion s I’ve

corrected some people and I corrected him on

this one. If you want to cross-examine any of

the witnesses about whether they know he’s a

lawyer or not, fine, go right ahead and crossexamine to your heart’s content.

Now, if you’ve got anything else you want

to make a record on, make it right now.

MR. JOBE: Your Honor, I just say

obviously if the Court takes the position –

tells the witness that this man is not a

lawyer, I think it’s pretty unlikely that the

witness is going to disagree with the Court.

That’s my p osition on that. I don’t think

that the witness in the face of the judge in

this case telling him this is not true, that

he’s going to persist in that as he might if I

had questioned him without that.

THE COURT: You want to prove that your

client is a lawyer?

MR. JOBE: I don’t want to prove he’s a

lawyer. I want to prove the witness doesn’t

know what he was talking about, Your Honor.

THE COURT: This witness we just had on

the stand?

MR. JOBE: Yes.

THE COURT: You’ve done a pretty good job

of that already.

MR. JOBE: I appreciate it. I don’t have

quite the confidence that the Court does about

that.

THE COURT: All right. You got anything

else you want to do? He’s back tomorrow. You

can cross-examine him all you want about being

a lawyer.

Franco is not a lawyer. Accordingly, the court’s correction

of the prosecutor’s misstatement was an appropriate means to avoid

confusing the jury. While the district judge doubtless regretted- 14 -

the unfortunate “zip your lip” remark, his comments to Jobe were

not unjustified, in the light of Jobe’s objection, his repeated

interruption of the court, and his refusal to comply with the

court’s instructions.

2.

Franco also maintains that two comments signaled to the jury

the district judge’s belief in Franco’s guilt.

a.

The first comment was made during the cross-examination of codefendant Patacsil, a physical therapist at DFW Therapeutic Clinic.

On direct examination, Patacsil testified that she worked closely

with Franco and discussed her pr eparation of fraudulent medical

records with him five to ten times per we ek for one and one-half

years. On cross-examination, Fra nco’s counsel asked Patacsil

what Franco had told her about himself. When the Government

objected to the relevance of the question, de fense counsel

responded that the witness ought to know something about Franco if

she had talked to him 1,000 times. Patacsil interjected: “Yeah,

but we talked about business”.

Her comment prompted the following exchange between the court

and Jobe:

THE COURT: You know they talked about

business . The business, we know what the

business is. How to defraud insurance

companies. That’s what she’s talking about.

MR. JOBE: Your Honor, we’ll object to

that comment as a comment on the weight of the

evidence.

T HE COURT: No, I’m not talking about- 15 - comment on the weight of the evidence. She’s

talking about defrauding the insu rance

company. Whether they did or not, these folks

have to object [ sic ] to it.

The court “noted” the objection and instruc ted Jobe to “move

along”. Jobe then, once again, objected to the court not ruling on

the objection.

Franco contends that the district court’s characterization of

th e contents of Franco’s discussions with Patacsil as “how to

defraud insurance companies” improperly answered the ultimate

question the jury was being asked to determine: whether Franco had

defrauded insurance companies. We disagree.

Patacsil, who testified that she had pleaded guilty to

conspiracy to commi t mail fraud, had also testified extensively

about her involvement in preparing fraudulent medical bi lls and

records for Franco’s “clients”, which Franco forwarded to insurance

carriers and through which he obtained negotiated settlements. She

testified further that Franco handled her claimafter she was

involved in a staged accident, using the name “Arlene Camaclang”;

that she had prepared fraudulent medical records signed by “Arlene

Patacsil” in which she purported to provide medical treatment for

“Arlene Camaclang”; and that Franco had submitted those records to

the insurance com pany, knowing that Patacsil could not perform

physical therapy on herself. Thus, the court summarized Patacsil’s

previous testimony accurately, but it properly left the question of

the truth of her testimony up to the jury.

Moreover, Franco was not prejudiced by the court’s comments.

Immediately following the objection and challenged ruling, Franco’s- 16 -

cou nsel asked the witness whether all of her conversations with

Franco were about how to defraud insurance companies; the witness

responded that they were not, and that Franco usually was asking

her if the medical billings were done.

b.

The other example cited by Franco as illustrating the court’s

belief in Franco’ s guilt occurred during the testimony of Manuel

Dadufalza, who explained how he and Franco would pay each other

cash kickbacks or “balik”, depending on which of them had purchased

the case from a runner. Dadufalza testified that the kickbacks

were usually paid in cash; and that, usually, the cash was

exchanged in the law offices. The prosecutor asked Dadufalza, “And

why did you use cash to pay balik?” Jobe interrupted, seeking

clarification of the question: “Your Honor, I didn’t understand.

Was it why do you or why does he?” The court responded, “I think

it was why did he”. Franco asserts that t he court then explained:

From what I understand, it’s a ma tter of not

getting the money on the books and it’s also

illegal.

Contrary to Franco’s assertions (both in his brief and at oral

argument), that statement was made by the witness

, not by the

court

. In any event, Jobe objected; and the following colloquy

occurred:

MR. JOBE: Your Honor, I’m going to

object to the statement, the witness

testimony, as far as what’s illegal–what’s

legal and what’s illegal. That’s a state of

the law, the Court’s prerogative, and instruct

the jury what the law is.

THE COURT: Well, it’s obvious it’s all- 17 - illegal. You know when you’re trading cash

back and forth on phony claims which he says,

that’s illegal. You don’t contend that’s

legal do you?

MR. JOBE : Your Honor, I don’t know

enough about the specific circumstances of

what he’s talking about to make a

determination or not.

THE COURT: Well, I will make a

determination that when they have a phony

claim and they start trading money back and

forth between the doctors and the lawyers,

that’s illegal.

Franco contends that the court’s characterization of the

c laims as “phony” and the payments as “illegal” was prejudici al.

But, once again, Franco does not provide the full context.

Significantly, he omits the next statement by the district judge:

“That doesn’t have anything to do with your client unless they

prove your client is a part of it”.

Considered in context, the judge’s comments do not reflect a

belief that Franco was guilty of the conspiracy charges. The judge

m ade clear to the jury that the Government would have to prove

Franco’s participation in the scheme. In any event, because the

payment of “balik” was part of the basis for the money laundering

conspiracy charge for which the jury acquitted Franco, and not the

mail fraud conspiracy charge for which he was convicted, Franco was

not prejudiced by the court’s comments.

During the charge conference, Jobe summarized his difficulties

with the district judge

— the resulting claimed prejudice to his

client, Franco — as follows:

To the extent that I have

... caused the Court

to lose its temper with me, I think there’s- 18 - been at least five or six times the Court has

yelled at me in the presence of the jury. To

t he extent that has been due to something I

have done that justify [ sic ] that, I believe

that it will materially influence the outcome

of this trial. I find in my observation the

jur y has paid very close attention to the

Court, and to the extent that my credibility

is undercut by that, I think it’s extremely

damaging to the defendant’s case....

Considering the record as a whole, we conclude otherwise.

Restated, the district judge did not violate his duty to conduct

the trial fairly and impartially.

The examples cited by Franco were isolated instances. Other

portions of the record, not cited by Franco, reflect that the judge

treated Jobe with respect. It is clear that the court’s criticism

stemmed from its irritation with tactics, by both the prosecutors

and defense counsel, th at slowed the pace of the trial or were

likely to confuse the jury.

Moreover, in its preliminary instructions prior to

commencement of testimony, the court instructed the jury that

“nothing I may say or do during the course of the trial should be

taken by you as indicating what your verdict should be. That is a

mat ter entirely up to you”. Likewise, in its jury charge, the

court reminded the jury not to read “into anything the Court may

have said or done, any suggestion from the Court as to what verdict

you should return”.

In sum, the record as a whole ref lects that the trial was

conduct ed in a fair and unbiased manner. We conclude that the

jury’s verdict was based on the evidence and was not improperly

influenced in any way by the conduct of the trial judge. But, even- 19 -

assuming arguendo that the challenged remarks were improper, Franco

has not demonstrated that any error was substantial and that it

prejudiced his case.

B.

As Franco concedes, our precedent forecloses his contentions

that the district court erred by denying his requested instruction

on reasonable doubt and by refusing to suppress the testimony of a

Government witness claimed obtained in violation of 18 U.S.C. §

201(c)(2) (crime to confer a benefit on a witness in exchange for

testimony). S ee United States v. Williams

, 20 F.3d 125, 128-32

(5th Cir.) (approving reasonable doubt instruction substantially

identical to that given in this case), cert. denied , 513 U.S. 891

(1994); United States v. Haese , 162 F.3d 359, 367 (5th Cir. 1998)

(§ 201(c)(2) not violated when testimony obtained in exchange for

favorable plea agreement), cert. denied

,

___ S. Ct.

___, 1999 WL

241837 (1999).

III.

For the foregoing reasons, the judgment is

AFFIRMED.