1 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this opinion should not be published and is not precedent except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. 98-40503

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL EDUARDO PEINADO-CANALES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(97-CR-390-4)

_________________________________________________________________

September 13, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: 1

Primarily at issue in Daniel Eduardo Peinado-Canales’ appeal

from his conviction and sentence for conspiracy and possession with

int ent to distribute cocaine is whether the district court’s

unobjected-to questioning of Peinado and Government witnesses

deprived Peinado of a fair trial. We AFFIRM

.

I.

A jury found Peinado guilty of conspiracy to possess with

intent to distribute cocaine, in violation of 21 U.S.C. § 846, and

pos session with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1). The district court denied Peinado’s motion for- 2 -

new trial and sentenced him to co ncurrent 188-month terms of

imprisonment.

II.

Peinado contends that the evidence was insufficient to support

his convictions; that the district court’s questioning of him and

other witnesses deprived him of a fair trial; that he is entitled

to a new trial based on newly discov ered evidence; and that his

Sentencing Guidelines offense level should have been reduced, based

on his role in the offense.

A.

In reviewing a properly-preserved sufficiency challenge, we

must determine whether “ any reas onable trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt”. U

nited States v. Martinez

, 975 F.2d 159, 160-61 (5th Cir.

1992) (emphasis in original), cert. denied

, 507 U .S. 943 (1993).

The evidence, both direct and circumstantial, is viewed in the

light most favorable to the verdict. E .g.

, United States v. ResioTrejo , 45 F.3d 907, 910 (5th Cir. 1995). “All credibility

determinations and reasonable inferences are to be resolved in

favor of the verdict.” I d

. at 911. The evidence need not “exclude

every reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt”. I d

. In short, we

determine only whether the jury made a rational decision, n ot

whether the jury’s verdict was corr ect on the issue of guilt or

innocence. E .g.

, United States v. Jaramillo

, 42 F.3d 920, 923 (5th

Cir.), cert. denied , 514 U.S. 1134 (1995).- 3 -

To establish a violation of 21 U.S.C. § 846, the Government

must prove: “1) the existence of an agreement between two or more

persons to violate federal narcotics laws; 2) the defendant’s

knowledge of the agreement; and 3 ) the defendant’s voluntary

participation in the agre ement”. U nited States v. Gonzalez

, 79

F.3d 413, 423 (5th Cir.), cert. denied

, 519 U .S. 869 (1996). To

establish a violation of 21 U.S.C. § 841(a)(1), the Government must

prove beyond a reasonable doubt that the defendant knowingly

possessed a controlled substance with the intent to distribute it.

Id

.

“When evidence is sufficient to estab lish the defendant’s

participation in a conspiracy to possess narcotics, the defendant

will be deemed to possess the drugs throu gh the co-conspirator’s

possession.” Id . Possession may be actual or constructive.

United States v. Ayala

, 887 F.2d 62, 68 (5th Cir. 1989).

Constructive possession is “the knowing exercise of, or the knowing

power or r ight to exercise, dominion and control over the

proscribed substance”. I d

. (internal quotation marks and citation

omitted). “One who ... exercises control over a motor vehicle in

which contraband is concealed may be de emed to possess the

contraband.” United States v. Hernandez-Palacios , 838 F.2d 1346,

1349 (5th Cir. 1988).

There was ample evidence to establish Peinado’s knowing

possession of cocaine and participation in a cocaine-distribution

conspiracy. The Government’s witnesses included two co-defendants

who had pleaded guilty to the conspiracy charg e, as well as DEA- 4 -

Agents who were involved in conducting surveillance a nd an

undercover police officer to whom the cocaine was delivered.

Viewed in the light most favorable to the verdict, there was

evidence that Peinado served as a “contact” between the cocaine

supplier and the purported purchaser, and was to have received

$20,000 from the supplier for his services; that he attended a

meeting in Guadalajara, Mexico, at which the sale of 100 kilograms

of cocaine was discussed; that he came to McAllen, Texas, on 10

October 1997, to arrange for the delivery of the cocaine; and that,

a fter a car containing the cocaine arrived in McAll en, he

accompanied the undercover officer (posing as the purchaser) to the

parking lot where the car was parked and gave the car keys to the

officer, and then observed the officer open the trunk of the car,

which contained burlap sacks containing “bricks” of cocaine.

In addition, Peinado’s arrival at the McAllen motel where some

of the co-conspirators were staying and the parking lot transaction

were videotaped by a DEA Agent conducting surveill ance; the

videotape was admitted into evidence. The Government also

introduced into evidence audio tapes of telephone conversations

between the co-conspirators, including Peinado, and the undercover

officer.

B.

Peinado contends that the district court impermissibly

questioned him and Government witnesses. But, as he concedes,

because he did not object at trial, we review only for plain error.

See United States v. Spires , 79 F.3d 464, 465-66 (5th Cir. 1996).- 5 -

“Under Fed.R.Crim.P. 52(b), this court may correct forfeited errors

only when the appellant shows (1) there is an error, (2) that is

clear or obvious, and (3) that affects his substantial rights. If

these factors are established, the decision to correct the

forfeited error is within the sound discretion of the court, and

the court will not exercise that discretion unless th e error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” U nited States v. Waldron

, 118 F.3d 369, 371

(5th Cir. 1997) (citation omitted).

“[A] federal judge is not a mere moderator of proceedings”.

Moore v. United States

, 598 F.2d 439, 442 (5th Cir. 1979). He “may

comme nt 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 off

counsel as a matter of discretion”. Id . (citations omitted); see

also F ED

. R. E VID

. 61 4(b) (“The court may interrogate witnesses,

whether called by itself or by a party.”).

Nevertheless, “[b]ecause it is the government’s

responsibility—not the district court’s function—to prove all

elements of its case beyond a reasonable doubt, the district court

must maintain an appearance of impartiality and detac hment”.

Unite d States v. Filani , 74 F.3d 378, 385 (2d Cir. 1996). Our

court has cautioned against extensive questioning of a defendant by

a district court because, “[w]hen a defendant takes the stand in

his own behalf, any unnecessary comments by the court are too

likely to have a detrimental effect on the jury’s ability to decide- 6 -

the case impartially”. U nited States v. Middlebrooks

, 618 F.2d

273, 277, modified on reh’g on other grounds

, 624 F .2d 36 (5th

Cir.), cert. denied

, 449 U.S. 984 (1980). “This is particularly

true during a defendant’s direct examination, when his credibility

is being established.” United States v. Saenz , 134 F.3d 697, 709

(5th Cir. 1998).

It is “[o]nly when the judge’s conduct strays from neutrality

[that] the defendant [is] denied a constitutionally f air trial”.

United States v. Carpenter

, 776 F.2d 1291, 1294 (5th Cir. 1985)

(district judge’s comment that he “had yet to hear a defense” not

reversible error). “In determining whether the trial judge

overs tepped the limits imposed on the judge’s conduct, [we] must

view the proceedings as a whole”, id

., “considering factors such as

the context of the remark, the person to whom it is directed, and

the presence of curative instructions”. U nited S tates v. Lance

,

853 F.2d 1177, 1182 (5th Cir. 1988). To rise to the level of

error, “the district judge’s actions, viewed as a whole, must

amount to an intervention that c ould have led the jury to a

p redisposition of guilt by improperly confusing the functions of

judge and prosecutor”. U nited States v. Flores

, 63 F.3d 1342, 1360

(5th Cir. 1995) (internal quotation marks and citation omitted),

cert. denied , 519 U.S. 825, 1022 (1996).

1.

When asked on direct examination about the purpose of his trip

to McAlle n, Peinado responded that it was to take delivery of a

used pickup truck he was purchasing from “Aron” (one of the alleged- 7 -

co-conspirators). The following colloquy between Peinado and the

district court ensued:

THE COURT: Sir, we heard a lot of tapes

in your presence and people identified that

voice as being yours. Was it your voice?

THE WITNESS: No, sir.

THE COURT: So you’re not on that tape at

all?

THE WITNESS: No, sir.

THE COURT: Well, you’re going to be

asked these things, you understand? We saw a

videotape, and in the videotape, it appears

that you’re present, including the time when

the keys are delivered to somebody and the

trunk is opened. It appears.

THE WITNESS: Yes, sir.

THE COURT: Is that you?

THE WITNESS: Yes, sir.

THE COURT: Do you hand the keys to that

person?

THE WITNESS: Yes, sir.

THE COURT: And you were present?

THE WITNESS: Yes, sir.

THE COURT: Why did you hand the keys to

that person? What was your intention?

THE WITNESS: I talked to the person who

was going to take the pickup truck to me, which was Mr. Renato, and he told me to go to

the Whataburger restaurant, for us to meet

there. And so that when we were there, he

told me that the pickup truck was going to be

about a half hour in coming. So then he told

me that he was going to leave me the key to a

vehicle so that the pe rson who would -- who

would arrive in the p i ckup truck, that he

could go back in that vehicle.- 8 - THE COURT : How do you explain that the

trunk was opened in your presence, if that

vehicle was only there so that somebody could

return once they delivered the pickup truck to

you?

THE WITNESS: When that person arrived,

the one we see in the video, I asked him where

the pickup truck was. And he said to me that

the pickup truck was at his hotel.

THE COURT: That’s what the man who just

testified told you?

THE WITNESS: Yes, sir.

THE COURT: That turned out to be a law

enforcement officer?

THE WITNESS: That’s correct, sir.

THE COURT: By the way, have you seen the

pickup?

THE WITNESS: No, sir.

T HE COURT: And they were going to

deliver it to you and you were going to take

it?

THE WITNESS: Yes, sir.

THE COURT: Had you paid for it?

THE WITNESS: Mr. Aron and I had agreed.

THE COURT: How could you agree on

something if you hadn’t seen it?

THE WITNESS: That’s why I came over

here, to see it and see if I liked it. If I

liked it, I was going to take it.

THE COURT: All right. You’re going to

be asked these questions. You understand

that?

THE WITNESS: Yes, sir.

THE COURT: And is that your explanation

as to why you were there?- 9 - THE WITNESS: Yes, sir.

THE COURT: Is it your testimony that you

didn’t k now anything about what was in that

trunk?

THE WITNESS: Yes, sir.

THE COURT: Is it your testimony that

everybody is coming here and saying that they

started this whole transaction with you in

Guadalajara, and you came over here with them

and you were in different hotels, that all of

that is not true?

THE WITNESS: No, that we saw each other

in Guadalajara and I came over to the hotel, I

did come over.

THE COURT: No, they said that you

actually got involved in this matter for the

sale and purchase of this big amo unt of

cocaine in G uadalajara. They said that you

were the point man.

THE WITNESS : That’s not the way it is,

sir.

THE COURT: That’s what I’m asking you.

THE WITNESS: No, what happened is, they

always talked about a cigar business. I never

did know what they were doing.

THE COURT: A cigar business in the

United States?

THE WITNESS: No, in Reynosa.

THE COURT: Okay.

After this questioning, counsel concluded the direct examination by

asking Peinado about his contacts with the co-conspirators who had

testified against him. The court then asked two more questions:

THE COURT: Is it your testimony that you

knew nothing whatsoever about what turned out

to be cocaine in that vehicle?

THE WITNESS: Yes, sir.- 10 - THE COURT: Is it your testimony further

that you had nothing whatsoever to do with any

transaction involving the cocaine in question?

THE WITNESS: That is correct, sir.

In support of his new trial contention, Peinado relies on

Saenz

, 134 F.3d 697, which involved the same district judge, and in

which our court found plain error and reversed Saenz’s conviction

because of the ju dge’s overinvolvement in questioning witnesses,

including the defendant. In so doing, our court relied on the

followin g factors: (1) the questioning had the effect of

expressing the judge’s disbelief in the defendant’s explanation of

events, id

. at 710-13; (2) the questio ning of Saenz was

particularly damaging because the case turned on a credibil ity

choice between Saenz and one government witness (an alleged coconspirator), regarding Saenz’s involvement in the alleged

narcotics conspiracy, id

. at 712-13; (3) the questions did not

address collateral matters, but instead went to the heart of the

c ase, id .; and (4) the jury instructions that the court had no

o pinion about the case were not curative in the light of the

prejudicial impact the questioning may have had on Saenz’s defense.

Id

. at 713. Our court also noted that, because “the trial was

short and the disputed issues were neither confusing nor complex”,

there was less “need for the court frequently or actively to

question witnesses” than in “a complex or lengthy case with

multiple witnesses”. Id . at 703, 704.

The Government counters that S aenz is limited by its unique

circumstances, relying on United States v. Cantu

, 167 F.3d 198 (5th- 11 -

Cir. 1999), another case involving the same district judge. Cantu

contended tha t his conviction should be reversed because the

judge’s questioning of the Government’s witnesses “was pervasive,

oft en leading, and designed to rehabilitate the credibility of

government witnesses or undermine counsel for Defendant’s

questioning on cross-examination”. I d

. at 203 (internal quotation

marks omitted). Our court disagreed, stating that C antu was

distinguishable from Saenz in three important respects: (1) rather

than resting on the testimony of a single witness, as in Saenz

, the

case against Cantu featured numerous substantive witnesses,

including both co-conspirators an d law enforcement officers; (2)

unlike Saenz, Cantu did not testify in his own defense, so the

district court did not have the opportunity to question him; and

(3) the judge’s questioning of witnesses in Cantu was not as

extensive as in Saenz

, where the court’s questioning of the

defendant constituted almost one quarter of the direct examination.

Id

. at 203 & n.22. Our court concluded: “[A]lthough the district

court’s questioning in the present case may bear some similarity to

that in Saenz

, the unique combination of factors that led to a

reversal in Saenz is absent here”. Id . at 203.

Two of the factors relied on by our court to distinguish Cantu

from Saenz are not present here. As in S aenz

, and unlike in Cantu

,

Peinado testified and asserted a lack of knowledge of the

conspiracy. Before Peinado’s counsel was able to elicit his

defense, however, the district judge took over the examination, and

his questioning constituted approximately one third of the direct2 In its preliminar y instructions to the jury before the

Government called its first witness, the court stated:

“[A]lthough we are in Federal Court and

Federal Judges can express their opinion, I

don’t have an opinion about the c ase. And I

hope to remember to tel l you this at the

c onclusion of the case. In Federal Court, I

can ask questions. Don’t give it any more or

- 12 - examination; thus, the judge’s involvement was even more extensive

than in Saenz . And, as in Saenz , Peinado’s trial lasted only two

days, the disputed issue (whether Peinado knowingly was involved in

the conspiracy) was neither confusing nor complex, and the record

does not reflect that counsel were unprepared or wasting time. S ee

Saenz , 134 F.3d at 704, 713. Thus, there was little need for the

court’s extensive involvement in questioning Peinado.

The other factor mentioned in Cantu , however, also serves to

distinguish this case from Sae nz . As in C antu

, and unlike in

Saenz

, the Government presented t he testimony of several coconspirators concerning Peinado’s involvement in the conspiracy,

the testimony of law enforcement officers who surveilled the scene

of the drug transaction, and physical evidence (audio and video

tapes) of Peinado’s presence at the scene of the transaction.

It is well to remember that we are reviewing o nly for plain

error. Arguably, there was error. But, viewing the proceedings as

a whole, and considering the overwhelming evidence of Peinado’s

guilt, including audio and video tapes of his involvement in the

drug transaction, the fact that the trial as a whole was conducted

in an impartial manner, and the court’s jury instructions that it

had no opinion about the case, 2 we are convinced that the districtless importance than if anybody else asks it.

You see, I don’t want to invade what is your

province. So if I lead you to believe that I

have an opinion about the case, you disregard

it. I do not have an opinion about the case.

And if I remember, I’m going to tell you that

at the conclusion of the case. If I do

anything to lead you to believe that I do,

please disregard it.

In the jury charge, the court stated:

Remember I told you when we started this

case that ... I did not have an opinion about

the case. I still don’t. So if I did

anyth ing that led you to believe that I have

an opinion about the case, you disregard it.

Remember, that’s your thing, and I don’t want

to get involved with your thing.

We recognize, of course, that some questioning of witnesses or

the defendant by a district judge may be “so prejudicial that even the strongest instructions to the jury to disregard” it is

inadequate. S ee Carpenter

, 776 F.2d at 1295-96. But, viewing the

proceedings as a whole, we conclude that such is not the situation

here.

3 The court’s questioning of Peinado, although not reversible

plain error, was very closely akin to cross-examination; and it is

quite possible that some of the questions could have been construed

by the jury as indicating the judge’s disbelief of Peinado’s

- 13 - judge’s error (questioning of Peinado), if any, did not “amount to

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

guilt by improperly confusing the functions of ju dge and

prosecutor”. S ee Flores

, 63 F.3d at 1360. Accordingly, under our

plain error standard, the error, if any, was not so substantial or

prejudicial as to require reversal. S ee Carpenter

, 776 F.2d at

1296. In any event, under the final prong of our plain error

review ( not necessary to reach here), our refusal to correct the

forfeited error would not affect the fairness, integrity or public

reputation of judicial proceedings. 3testimony. As in S aenz and Cantu (both rendered after trial of

this case, so the district judge did not have the benefit of their

ana lyses), such overinvolvement in the questioning of witnesses,

especially criminal defendants, provides fertile ground for appeals

and places convictions at risk of reversal.

No doubt, for t he trial of the case at hand, the length and

t ype of questioning challenged on appeal would not have occur red

had the district judge had the benefit of Saenz and Cantu

.

- 14 - 2.

Peinado also challenges, again for the first time on appeal,

the propriety of the district court’s questioning of several of the

Government’s witnesses. For example, he complains of the questions

to co-conspirators concerning Peinado’s identity, his presence with

the other co-conspirators at times during the conspiracy and what

he may have heard about the cocaine transaction, and each coconspirator’s prior involvement in drug trafficking. He also

challenges the questioning of law enforcement officers, including

q uestions about identifying the parties that were the subject of

the surveillance, verifying the times the recordings were made,

estim ating the number of officers involved in the investigation,

and the average street value per kilogram of cocaine.

Although this quest ioning was q uite extensive, none of the

que stions complained of rise to the level of infringing on

Peinado’s right to a fair trial. Even assuming that the

questioning w as improper, we conclude that it did not affect

Peinado’s substantial rights. Again, there was no plain error.

C.

Post-conviction, Peinado moved for a ne w trial, contending

that co-conspirator Arias’ at tempt to withdraw his guilty plea- 15 -

after testifying at Peinado’s trial constituted newly dis covered

evidence. “[M]otions for new trial on the basis of newly

discovered evi dence are disfavored ... and therefore are viewed

with great caution”. U nited States v . Ugalde , 861 F.2d 802, 808

(5th Cir. 1988), cert. denied

, 490 U.S. 1097 (1989). Such motions

are generally “suited to cases in which the proffered evidence goes

directly to proof of guilt or innocence”. I d

. at 807-08 (internal

quotation marks and citation omitted).

We consider four factors in determining whether a new trial

should be granted: (1) whether the evidence was newly discovered

and was unknown to the defendant at the time of trial; (2) whether

the defendant exercised due diligence in discovering the evidence;

(3) whether the evidence is material, and not merely cumulative or

impeaching; and (4) whether the evidence is likely to produce an

acquittal. E .g.

, United States v. Sullivan

, 112 F.3d 180, 183 (5th

Cir. 1997).

The district court did not abuse its discretion by denying a

new trial. At a hearing on Arias’ attorney’s motion to withdraw as

counsel, Arias informed the court that he wished to reinstate his

guilty plea. During the ensuing plea colloquy, Arias provided no

exculpato ry evidence concerning Peinado’s role in the conspiracy

and, in fact, testified (consistent with his testimony at Peinado’s

trial) that P einado helped make arrangements for the cocaine

delivery.

D.- 16 -

Finally, Peinado bases error on the denial of a reduction in

his offense level under the Sentencing Guidelines based on his

minimal participant role in the offense. S ee U.S.S.G. § 3B1.2(a).

Peinado had the burden of proving thi s minimal role. S ee United

States v. Bro

wn , 7 F.3d 1155, 1160 n.2 (5th Cir. 1993). The

factual finding to the contrary is reviewed only for clear error,

see United States v. Buenrostro

, 868 F.2d 135, 137-38 (5th Cir.

1989), cert. denied

, 495 U.S. 923 (1990), and is entitled to “great

deference”. U

nited States v. Devine

, 934 F.2d 1325, 1340 (5th Cir.

1991), cert. denied

, 502 U.S. 929, 1047, 1064, 1065, 1092, 1104

(1992).

A “minimal participant” is one who is “plainly among the least

culpable of those involved in the conduct of the group”. U.S.S.G.

§ 3B1.2, comment. (n.1). Because most offenses are committed by

participants of roughly equal culpability, it is intended that the

minimal-role adjustment “be used infrequently”. U.S.S.G. § 3B1.2,

comment. (n.2); United States v. Nevarez-Arreola

, 885 F.2d 243, 245

(5th Cir. 1989).

At sentencing, the court disagreed with Peinado’s minimal

participation objection, finding that “he can’t get any more points

or any less points either because of his conduct”. This finding is

not clearly erroneous.

III.

For the foregoing reasons, Peinado’s convictions and sentence

are

AFFIRMED.