### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50413 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. DANIEL MELGOZA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:09-CR-900-1

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Daniel Melgoza, a detention officer at the Bexar County Detention Center (BCDC), appeals his convictions for depriving a person of civil rights with bodily injury while acting under color of state law in vi o l a t i o n of 18 U.S.C. § 242 and making false entries in a document with th e intent to obstruct a federal investigation in violation of 18 U.S.C. § 1519. Melgoza was convicted by a jury of violating § 242 and § 1519 in relation to an assault on Joe Sanchez, an inmate at the BCDC. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D April 6, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50413 Document: 00511813900 Page: 1 Date Filed: 04/06/2012No. 11-50413

Melgoza a rgues that the evidence was insufficient to support his convictions. He asserts that the evidence presented at trial did not prove beyond

a reason ab l e d o ubt that he assaulted Sanchez, that he caused bodily injury to Sanchez, or that he made f a lse statements in his use-of-force report regarding the incident. He maintains that ther e w a s no direct or physical evidence showing that he kicked or struck Sanchez and falsely reported that he had not. In support of this argument, Sanchez cites to favorable testimony given at trial without mentioning unfavorable testimony. He maintains that the red mark on Sanchez’s f

a c e c o u ld have been caused by Sanchez’s face being on the ground while he was being restrained. The only challenges Melgoza makes to his § 1519 conviction are a n argument that the evidence was insufficient to support that conviction because there was insufficient evidence to p r ove that he kicked or struck S a n c h e z and his recitation of his testimony that his use-of-force report

was truthful and accepted by his supervisor. He also suggests that the evidence

was insufficient to support his convictions because the jury’s verdicts were inconsistent because he was acquitted on charges relating t o an incident with another inmate. 1 Four witn e s s e s t e s tif

i e d th at M elgoza unnecessarily and repeatedly kicke d Sanchez in the face and h e a d a fter he had been secured and had stopped

r e s i s t ing. This evidence was sufficient to support Melgoza’s conviction under § 242 for willfully violating Sanchez’s constitutional rights by subjecting him to

e x c essive force. See United States v. Brugman , 364 F.3d 613, 616-18 (5th Cir

. 2004). While Melgoza testifi e d that he did not kick Sanchez or otherwise use excessive force against him, the jury was free to reject this evidence and accept the evidence of the other eyewitnesses. See United States v. Williams , 132 F.3d 1055, 1059 (5th Cir. 1998). Even if the jury’s verdicts acquitting Melgo z a o n

Becaus e the evide nce wa s suf fic ient to sup por t Me lgoza’s convic tio ns a s s u m i n g 1 arguend o that he pr ope rly pr es erved and brie fed his clai ms , we do not reac h the Go vernm ent’ s argum ents t hat Me lgoza didno t pr ope rly brie f or pr es erve so meof hi s clai ms . 2 Case: 11-50413 Document: 00511813900 Page: 2 Date Filed: 04/06/2012No. 11-50413

charges regarding another inmate and convicting Melgoza of the offenses regarding Sanchez were somehow inconsist ent, this does not invalidate the convictions because there was sufficient evidence to support the convictions. See United States v. Gieger , 190 F.3d 661, 664 (5th Cir. 199 9). Sanchez testified that Melgoza’s kicks caused pain in his face, head, and ribs. A nurse at the BCDC stated that Sanchez had redness on his cheek shortly after the incident as a result of an injury. In the context of an officer assaulting

an inmate or suspect w h o i s n o t fleeing or resisting, evidence that the inmate suffered pain without any physical manifestation of injury is sufficient to prove bodily injury. Brugman , 364 F.3d at 618-19. Accordingl y , the evidence was sufficient for the jury to find that the Government proved bodily injury. See id. In his use-of-force report, M e l goza stated that he stepped on Sanchez’s hand because Sanchez had a pen in his hand, and he did not state that he kicked Sanchez in the face or head. At trial, four witnesses testifie d th at Melgoza ki c k e d S a nchez in the face and head, and two witnesses stated that Melgoza’s report was false. Thus, while Melgoza testified that he did not make any false statements, the jury was fre e t o di s regard this testimony and convict Melgoza

on the § 1519 violation based upon the testimony of the witnesses who contradicted Melgoza’s testimony. See Williams , 132 F.3d at 1059. M el goza argues that the district court abused its discretio n b y not gr antin g him a mistrial based upon juror misconduct relating to exposure to mid-trial publicity. He asserts that the di s t ri c t court should have questioned all of the members of the jury regarding their e x p o s u r e to mid-trial publicity. Melgoza merges a challenge to the denial of a mistrial with a challenge to the manner in which the district court dealt with the problem juror. Melgoza moved for a mistrial based upon th e p o s sibility that a juror or jurors could believe that the removed juror was di s m i s s e d because he was in favor of Melgoza. Accordingly, we review this issue for abuse of discretion. See United States v. Rasco , 123 F.3d 222, 230 (5th Cir. 1997). Melgoza, however, did
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not request that the district court question all of the jurors about their exposure t o m i d -trial publicity or move for a mistrial on this ground. Accordingly , th i s issue is reviewed for plain error only. See Puckett v. United States , 556 U.S. 129, 135 (2009). The newspaper article that one juror read did n o t mention any inadmissible prior convictions, and Melgoza has not shown that the article was actually preju di c ial. See Rasco , 123 F.3d at 230-31. As the article was not innately prejudicial and Melgoza was acquitted on two of the four counts against him, Melgoza cannot show that the district court c o m m itted error, plain or otherwise, by not questioning all of the members of the jury. See United States v. Manzella , 782 F.2d 533, 541-43 (5th Cir. 1 986). The record shows that only two jurors were exposed to the dismissed juror’s comments that indicated that he favored Melgoza. Only one ju r or was present when the district court made the comment indicating that the dismissed juror might be incarcerated. The district court questioned both exposed jurors about the dismissal of the juror. One of the jurors stated that the dismissal of th e juror would not affect her opinion on the merits of the case, and the oth e r stated that it would not affect his opinion beca u se he did not know what had happened. The district court then instructed the entire jury that it should not consider in its deliberations that the juror was dismissed or why the juror was dismissed. Given the s e f a c t s, Melgoza has not shown that the district court abused its discre t i o n by not declaring a mistrial. See Milam v. United States , 322 F.2d 104, 110-11 (5th Cir. 19 63). AFFIRMED.

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