NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION
F ile Nam e: 12a0693n.06 No. 11-1166 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. AL BERTO F L ORES, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN OP INION

BEFORE: WHITE , STRANCH, and F ARRIS , Circuit Judges

. *
F ARRIS, Circuit Judge. Alberto Flore s arg ues that the district court committed reve rsible

err or whe n it called as its own wit ness and questioned a decla rant of out-of-c ourt statements. We aff irm. Flore s and ten co-de fenda nts wer e indicted for conspirac y to distribute with intent to import and to import pseudoephe drine from Canada into the United States, in viola t i o n o f 21 U.S.C. §§ 959(a) (1) and 960(d)( 3). Flore s waived his rig ht to trial by jury and elec ted to have a bench trial. The g overnme nt called as witnes s es t wo co-de fenda nts who had previously pled g uilty , Enrique
Ba raja s, also known as Enrique Sanchez, and Nasir Ba ste. The g overnme nt also introduced out-ofcourt statements of co-de fenda nt Shahin J udeh throug h Sanchez’s and Ba ste’s testimony

. J udeh had

The Honor able Jerome F arr is, United States Circuit J udg e for the Ninth Circuit, sitt ing * by desig nation.No. 11-1166 United States v. Flores 2

also pled g uilty , but the g overnme nt chose not to call him as a witness. He had rec anted testimony in a separ ate matter, an d t h e governme nt did not want to raise any possibili ty that J udeh should

rec eive a reduc tion in sentence. The district court expressed conce rn that the out-of-c ourt statements lacke d sufficie nt independe nt corr oborating evidenc e to be admissible under Fe dera l Rule of Evidence 801(d)( 2)(E) , and it called J udeh as its own witness. After hear ing J udeh, the district court found Flore s g uilty and

sentenc ed him to 186 months in prison, to run concur rently with the sentenc e for a conviction in the
Easter n District of Ke ntucky

. We revie w a district court’s eviden t i ar y rul ings for abuse of discretion. United States v. Mick , 263 F.3d 553, 566 (6th Cir. 2001). We als o re v i ew a district court’s conduct during trial, including its dec ision to call and que stion witnesses, for abuse of discre tion. McM illan v. Castr o , 405 F.3d 405, 409 (6th Cir. 2005) (citation omitted); Fielding v. United States , 164 F.2d 1022, 1023 (6th Cir. 1947). We revie w for clea r err or the preliminary question of fac t whether the g overnme nt has met its burden to establish the admissibili ty of out-of-c ourt statements. United States v. Martinez , 430 F.3d 317, 326 (6th C i r. 2 005). Hostile or biased conduct by a district court, particula rly in the prese nce of a jury , is structura l err or that require s automatic reve rsal. McM illan , 405 F.3d at 410 (citation omitted). I f there is constitutional err or that does not infec t the entire trial
proce ss and make the trial fundame ntally unfair, howeve r, we revie w that err or for prejudice under the Chapman harmless-e rror standard. Neder v. United States , 527 U.S. 1, 8 (1999); United States

v. Martin , 897 F.2d 1368, 1372 (6th Cir. 1990). Such err or is harmless onl y i f we ca n d eclare bey ond a rea sonable doubt that the err or did not contribute to the verdic t. Chapman v. Calif ornia , 386 U.S. 18, 24 (1967); Martin , 897 F.2d a t 1372.No. 11-1166 United States v. Flores 3

T h e d i s t ri ct court’s “func tion [i s] to conduct the trial in an order ly way with a view to eliciting the truth and to attaining justice betwee n the parties.” Knapp v. Kinsey , 232 F.2d 458, 466 (6th Cir. 1956)

. I n fulfilling that function, it may call witnesses on its own motion and interrog ate those witnesses. Fe d. R. Evid. 614. “While we do not look with favor on extensive examination of witnesses by the trial judge in a jury trial,” even in a jury trial the court may intervene “whe n

nece ssary to clea

r up confusion in the evidenc e or to supplem en t , in an impartial fashion, the
prese ntation of a poorly prepa red attorney .” McM

illan , 405 F.3d at 410 (citations, quotation marks, and indications of altera tions omitted). I n revie wing whether the district court had a g ood rea son to call or question a witness, we consider such fac tors as the nature and complexit y of the issues at trial, whether the attorney s wer e unprepa red or obstreper ous, and whether it was difficult for counsel to deal with a witness without such intervention. McM illan , 405 F.3d at 410; United States v. Hickm an , 592 F.2d 931, 933 ( 6th Cir. 1979). The dist rict court must also main t ai n an objective demea nor whil e int erve ning. Hickm an , 592 F.2d at 933. The court may demonstrate persona l bias or prejudice throug h rem ar k s and handling of the trial that indicate “hostility to one of the parties,

. . . unwar rante d prejudg ment of the meri t s o f t h e case, or an alig nment

. . . with one of the parties.” Knapp , 232 F.2d at 466 (citation omitted). Fa ctors to consider include “the tone of the judicial interruptions, the extent to which they

wer e direc ted at one side more than the other, and the prese nce of any cura tive instructions at the close of the proce eding s.” McM illan , 405 F.3d a t 410 (citation omitted). The require men t o f i m partiality imposes an additional limit ation on the district court’s decision to call a witness. The court may cal l a wi tness who provides important testimony , particula rly when the court calls that witn es s at the reque st of one of the parties. Cf. Lits inger v.No. 11-1166 United States v. Flores 4

United States , 44 F.2d 45, 47 (7th Cir. 1930) (witness called by the court at the g overnme nt’s reque st “prove d the g overnme nt’s case in ever y detail except the identity of the appellants” ). Moreove r, the

court may elicit testimony that favor s one party over another , as l o n g as there is no “strate g ic focusing of judicial questioning to favor ” that party

. United States v. Smith , 561 F.2d 8, 14 (6th Cir. 1977). The court may not become a party ’s advocate, howeve r. As the Four th Circuit held, a court destroy s its impartiality when it “under takes to produce evidenc e” that is “esse ntial to overc ome the defe ndant’s presumption of innocenc e” or when “the g overnme nt’s case would be insufficient as a
matter of law without the court witnesses.” United States v. Karnes , 531 F.2d 214, 216-17 (4th Cir. 1976). The district court here offe red g ood rea sons for injecting itself into the trial. See McM illan , 405 F.3d a t 410; Hickm an , 592 F.2d a t 933. I t wanted to by pass second- hand acc ounts of J udeh’s statements about F lores’ r ole in the conspira cy and hear from someone who ha d “g rea ter pe rsonal knowledg e of the events and actions at issue.” The court also ref err ed to th e o p p o rtunity Flore s would have to cross-e x amine J ud eh , whos e out-of-c ourt statements Flore s could not otherwise impeach. The district co u rt’s conduct did not demonstrate the persona l bias or prejudice that would require automatic reve rsal. I ts conduct and rema rks did not indicate hostili ty to Flore s, unwar rante d prejudg ment of the merits, or the court’s alig nment with the g overnme nt for the purpose of further ing

or supporting the g overnme nt’s contentions. Knapp , 232 F.2d at 466. The court’s behavior cer tainly does not r ise to the level of the behavior of the c ourt in Hickm an , “one of the few case s in w hich a judge ’s conduct during trial has led to the reve rsal of a conviction.” United States v. Hyne s , 467 F.3d 951, 958 (6th Cir. 2006); see Hickm an , 592 F.2d at 9 3 2-36 (noting the district court beca me aNo. 11-1166 United States v. Flores 5

“surr og ate prosec utor” who s e conduct “must have left the jury with a strong impression of the judge ’s belief of the defe ndant’s probable g uilt”). Rather, in calling J udeh, the court ref err ed to the opportunity Flore s would have to impeach J udeh’s testimony and noted that it was “not y et known what eff ect

. . . J udeh’s testimony [would] have on the trial, and which side (if either) this testimony [would] favor .” The re maining question, then, i s whether the gover nment’s case was sufficie nt as a matter of law without the evidenc e provided by the court’s witness, and thus whether J udeh’s out-of-c ourt statements would have been ad m issible if he had not testified. For a coconspirator’ s statement t o be admissible a g ainst a defe ndant, the g overnme nt must show by a pre pondera

nce of the evidenc e that a conspirac y exis ted, that the conspirac y involved the decla rant and the defe ndant, and that the

statement wa s m ad e i n furtheranc e of and during the course of the conspirac y . Fe d. R. Evid. 801(d)( 2)(E) ; Bourjaily v. United States , 483 U.S. 171, 175 (1987); United States v. Martinez , 430 F.3d 317, 325 (6th Cir. 2005). The district court may consider the statements in de termining their admissibili ty , Martinez , 430 F.3d at 325, but “the defe ndant' s knowledg e and participa tion in the conspirac y must be supported by independe nt, corr oborating evidenc e. ” United St ates v. Benson , 591 F.3d 491, 502 ( 6th Cir. 2010) (citation omitted).
Her e, the district court likely err ed in calling J udeh as a witness if it suspected that the out-ofcourt statements rela ted by Ba ste and Sanc hez would be inadmissible without J udeh’s testimony

. I f the court believed that critica l evidenc e to the g overnme nt’s case was inadmissible, it should have

so ruled. Neve rtheless, this was not a jury trial, and we have held that the conce rns underly ing a trial judge taking an active role are diminis hed when a jury is not prese nt. United States v. Morrow , 977 F.2d 222, 225 (6th Cir. 1992). As the rec ord does not show any bias or prejudice by the court, theNo. 11-1166 United States v. Flores 6

court’s inter v en t i o n is unlikely to be prejudicial. Cf. Jack son v. United States , 329 F.2d 893, 894 (D.C. Cir. 1964) (“I n a nonjury ca s e . . . n eedless or active interrog ation by judge s . . . is rar ely prejudicia l”). The recor d sat i s fi es us that any possible err or by the di strict court was harmless. Sanchez and Ba ste testified from their persona l experience as well, and that testimony provides independe nt

corr o b o ra t ion of J udeh’s out-of-c ourt statements. The out-of-c ourt statements also provide some evidenc e of the conspirac y and of Flore s’ participa tion in it, and the out-of-c ourt statements rela ted by Ba ste provide some c orrobor ation of the stateme nts related by Sanchez, and vice versa . T h e re co rd also includes a picture of Flore s trave ling to Montreal, wher e actions contemplated by the conspirac y occur red, and a stipulation that he trave l ed t h er e. As the district

court wrote, “the circ umstances surrounding the

. . . trip itself g ive rise to a rea sonable infere nce that [Flores] went on this trip as a knowing a nd willful participant.” Testimony indicates that it was a short trip devoted entirely to driving to Montreal, whe re pa y ment was made for a future shipment of pseudoephe drine pills. I n addition, as the district court noted, there “wa s no evident purpose” for the prec eding leg of the trip, from Chicag o to Michig an, other than to tur n m o n ey o v er to the coconspirators trave ling to Cana da and to a llow Flore s to join t hem. Given the rec ord, J udeh’s out-of-c ourt statements would have been admissible under Fe dera l Rule of Evidence 801(d)( 2)(E) even without J udeh’s testimony

. The district court did not abuse its discretion in admitting the statements. There fore , the court did not provide evidenc e nece ssary for the g overnme nt to make its prima fac ie case . I n any event, any potential er ro r wa s h ar m less.
Moreove r, the district court had a g ood rea son for interjec ting itself into the trial and maintained an objective de meanor

in doing so.No. 11-1166 United States v. Flores 7

AF F IRMED.