* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-50036

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELVIRA AVALOS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-98-CR-1553-2-H

--------------------

October 23, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Elvira Avalos (“Elvira”) appeals her conviction for one

count of conspiracy to possess and one count of possession with

the intent to distribute an unspecified quantity of marijuana, in

violation of 21 U.S.C. §§ 846 & 841(a)(1). She contends that the

district court’s questioning of her and Loraine Avalos, the only

other favorable witness to her during trial, demonstrated a lack

of impartiality and denied her a fair trial. Because Avalos

raises this issue for the first time on direct appeal, our review
No. 00-50036

-2-

is limited to plain error only. See United States v. Saenz, 134

F.3d 697, 701 (5th Cir. 1998).

A federal judge need not act merely as a moderator of the

proceedings. United States v. Moore, 598 F.2d 439, 442 (5th Cir.

1979). The district judge may comment on the evidence, clarify

facts presented, maintain the pace of the parties, and interrupt

the parties. Id. The trial transcript shows that the district

court interrupted Loraine Avalos’ direct testimony seven times

and at no time during cross, redirect, or recross examinations. 

These interruptions amounted to 42 lines out of 782 lines (or

nine percent) of her testimony, and, therefore, were not

quantitatively substantial. See Saenz, 134 F.3d at 704 n.3. 

Although the district court admonished Loraine Avalos to be

forthcoming in her responses to the government’s questions, it is

not error for a judge to comment on the evidence. See Moore, 598

F.2d at 442. The defendant has not demonstrated clear or obvious

error in the district court’s questioning of Loraine Avalos.

Likewise, the district court did not commit plain error by

interrupting Elvira Avalos’ testimony. The trial transcript

reveals that the district judge interrupted Elvira’s direct and

cross examinations eight times. These exchanges amounted to 49

lines out of 366 lines (or 13.4 percent) of her entire testimony. 

Although the interruptions were more frequent than with Loraine’s

testimony, they also were not quantitatively substantial. See

Saenz, 134 F.3d at 704 n.3. Although the defendant argues that

one particular exchange resulted in her being badgered into

making a statement that could be interpreted as incriminating by
No. 00-50036

-3-

the jury, this does not prove partiality by the district court

because the judge may elicit new facts, even harmful facts,

through its questioning. See United States v. Cantu, 167 F.3d

198, 202 (5th Cir.), cert. denied, 120 S. Ct. 58 (1999); Saenz,

134 F.3d at 708.

Outside of these two specific instances, Elvira has not

pointed to any other questioning by the district court that would

show partiality. The trial transcript reveals that the remaining

interruptions by district court occurred in order to clarify the

witnesses’ answers or to get the witnesses to focus on the

questions posed. This is well within the district court’s

authority. See id. The defendant has not shown error, much less

plain error with respect to this contention. Accordingly, the

district court’s judgment is AFFIRMED.