IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 violation of 18 U.S.C. § 242 and

making false entries in a document with the 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.

United States Court of Appeals

Fifth Circuit

F I L E D

April 6, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-50413

Melgoza argues that the evidence was insufficient to support his

convictions. He asserts that the evidence presented at trial did not prove beyond

a reasonable doubt that he assaulted Sanchez, that he caused bodily injury to

Sanchez, or that he made false statements in his use-of-force report regarding

the incident. He maintains that there was 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 face could 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 an argument that the evidence was insufficient to support that

conviction because there was insufficient evidence to prove that he kicked or

struck Sanchez 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 to an incident with

another inmate.1

Four witnesses testified thatMelgoza unnecessarily and repeatedly kicked

Sanchez in the face and head after he had been secured and had stopped

resisting. This evidence was sufficient to support Melgoza’s conviction under

§ 242 for willfully violating Sanchez’s constitutional rights by subjecting him to

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

2004). While Melgoza testified 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 Melgoza on

Because the evidence was sufficient to support Melgoza’s convictions assuming

1

arguendo that he properly preserved and briefed his claims, we do not reach the Government’s

arguments that Melgoza did not properly brief or preserve some of his claims.

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charges regarding another inmate and convicting Melgoza of the offenses

regarding Sanchez were somehow inconsistent, 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. 1999).

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 who is not 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. Accordingly, the evidence was

sufficient for the jury to find that the Government proved bodily injury. See id.

In his use-of-force report, Melgoza 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 testified that Melgoza

kicked Sanchez 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 free to disregard 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.

Melgoza argues that the district court abused its discretion by not granting

him a mistrial based upon juror misconduct relating to exposure to mid-trial

publicity. He asserts that the district court should have questioned all of the

members of the jury regarding their exposure 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 the possibility that a juror or

jurors could believe that the removed juror was dismissed 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

to mid-trial publicity or move for a mistrial on this ground. Accordingly, this

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 not mention any

inadmissible prior convictions, and Melgoza has not shown that the article was

actually prejudicial. 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 committed 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. 1986).

The record shows that only two jurors were exposed to the dismissed

juror’s comments that indicated that he favored Melgoza. Only one juror 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

the juror would not affect her opinion on the merits of the case, and the other

stated that it would not affect his opinion because 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 these facts, Melgoza has not shown that the district court

abused its discretion by not declaring a mistrial. See Milam v. United States,

322 F.2d 104, 110-11 (5th Cir. 1963).

AFFIRMED.

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