USA v. Menchaca

Filing

UNPUBLISHED OPINION FILED. [08-40760 Affirmed] Judge: RHB , Judge: JLD , Judge: PRO. Mandate pull date is 01/03/2011 for Appellant Bertha Adriana Menchaca [08-40760]

USA v. Menchaca Case: 08-40760

Document: 00511319883 Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-40760 S u m m a r y Calendar December 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. B E R T H A ADRIANA MENCHACA, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:08-CR-48-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* B e r t h a Adriana Menchaca appeals her convictions for: two counts of t r a n s p o r t in g illegal aliens within the United States for financial gain, in v io la t io n of 8 U.S.C. § 1324; and aiding and abetting, in violation of 18 U .S .C . § 2. Trial testimony revealed that Border Patrol agents stopped a vehicle b e in g driven by Menchaca's codefendant and containing six illegal aliens hidden in its cargo area. Testimony also established Menchaca rented the vehicle.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 08-40760 Document: 00511319883 Page: 2 Date Filed: 12/13/2010 No. 08-40760 M e n c h a c a contends the district judge's comments on the evidence during t h e jury charge constituted structural error and deprived her of a fair trial b e c a u s e they, in essence, directed a verdict on some elements of her charged o ffe n s e s . As Menchaca concedes, she did not object in district court to any of the n o w -c o n t e s t e d comments. Because the claimed errors do not amount to

s t r u c t u r a l error, they are amenable to, and we apply, plain-error review. See H e d g p e th v. Pulido, 129 S. Ct. 530, 532 (2008) (instructional errors not s t r u c t u r a l unless they "vitiate all the jury's findings") (quoting Neder v. United S ta te s , 527 U.S. 1, 11 (1999)) (emphasis in original) (internal quotation marks o m it t e d ); United States v. Inocencio, 40 F.3d 716, 728-29 (5th Cir. 1994) ("`When n o party objects at trial to a jury instruction, we will uphold the charge absent p la in error.'") (quoting United States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994)). F o r plain-error review, we "may, in [our] discretion, correct an error not r a is e d at trial only where the appellant demonstrates that (1) there is an `error'; (2 ) the error is `clear or obvious, rather than subject to reasonable dispute'; (3) t h e error `affected the appellant's substantial rights, which in the ordinary case m e a n s ' it `affected the outcome of the district court proceedings'; and (4) `the e r r o r seriously affect[s] the fairness, integrity or public reputation of judicial p r o c e e d in g s '" . United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting P u c k e tt v. United States, 129 S.Ct. 1423, 1429 (2009)). T h e district court is not limited to abstract instructions and may "assist t h e jury in arriving at a just conclusion by explaining and commenting upon the e v id e n c e , by drawing their attention to the parts of it which [it] thinks im p o r t a n t , and [it] may express [its] opinion upon the facts, provided [it] makes it clear to the jury that all matters of fact are submitted to their determination". Quercia v. United States, 289 U.S. 466, 469 (1933). "While the [district] court m a y under no circumstances withdraw any element of an offense from the jury's c o n s id e r a t io n in a criminal case, the judge may comment on the evidence, so long 2

Case: 08-40760 Document: 00511319883 Page: 3 Date Filed: 12/13/2010 No. 08-40760 a s he instructs the jury that they are not bound by his comments." Inocencio, 40 F .3 d at 729. "A judge may point out undisputed facts to the jury without error." Id. "In determining whether the trial judge overstepped the limits imposed on t h e judge's conduct, this Court must view the proceedings as a whole." United S ta te s v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.1985). The instructions are e v a lu a te d "as a whole, without isolating statements which may appear p r e j u d ic ia l outside the context in which they were made". United States v. G o m e z -R o ja s , 507 F.2d 1213, 1223 (5th Cir. 1975). M e n c h a c a contends the district court improperly directed a verdict on at le a s t two elements of each charged offense. With respect to the two counts of t r a n s p o r t in g illegal aliens for commercial advantage, the Government had the b u r d e n to prove: (1) "[A]n alien had entered or remained in the United States in violation of the law"; (2) Menchaca "transported the alien within the United S t a te s with intent to further the alien's unlawful presence"; and (3) Menchaca " k n e w or recklessly disregarded [that] fact . . . ." See United States v. NolascoR o s a s , 286 F.3d 762, 765 (5th Cir. 2002). With respect to the aiding and abetting c o u n t , the Government had the burden to prove: (a) the elements of the alient r a n s p o r t in g offense; and (b) Menchaca "associated with [that] criminal venture, p u r p o s e f u ll y participated in [it], and sought by [her] actions to make [it] s u c c e e d " . United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). Menchaca contends the court erred by directing the jury to find the G o v e r n m e n t had met its burden with respect to the elements of the t r a n s p o r t in g -a lie n s offenses listed above. In referring to whether the

t r a n s p o r t e d persons were "aliens", the court summarized the evidence and c o m m e n te d : "And he says that [he wasn't born here and is not a citizen of the U n ite d States]. I don't think anybody is arguing about that". In regard to w h e t h e r they were here in violation of the law, it commented: "I think both have a d m it t e d they are here in violation of law, but you have to be satisfied about that . . . ." With regard to whether Menchaca knew the alleged aliens were here in 3

Case: 08-40760 Document: 00511319883 Page: 4 Date Filed: 12/13/2010 No. 08-40760 v io la t io n of the law, it commented, in context of the Government's burden of p r o o f: "So that, for example, if you find people who are, in this case, trying to get n o r t h and they're in some kind of hotel or apartment and, apparently, have n o th in g more than the clothes on their back and they're crawling into a trailer a n d hiding under boxes and mattresses at night, those are the facts that will tell y o u that they are not here legally". After summarizing the evidence, in reference t o whether the aliens were transported in a motor vehicle in furtherance of their ille g a l presence, the court commented: "So they did move in a motor vehicle. So t h a t 's the next element. . . . And the aliens say they were trying to get back to S a n Antonio and, from there, they were headed to . . . Arkansas and Louisiana. And that's what that means, . . . if you're helping an undocumented alien c o n t in u e to be here illegally, that's called furthering their illegal presence". Each of these comments was given in context of the Government's burden of p r o o f. Accordingly, they were not improper. Menchaca also contends the court erred by directing the jury to find the G o v e r n m e n t met its burden with respect to the elements of aiding and abetting. The district court charged the jury that if it accepted co-defendant's testimony t h a t Menchaca asked him to drive the rented vehicle and transport the aliens in e x c h a n g e for $300, "[t]hat would be a classic case of aiding and abetting". These r e m a rk s merely provided an example of what would constitute evidence of aiding a n d abetting if the jury accepted the Government's evidence. Upon reviewing these comments in the light of the whole record, we c o n c lu d e the court's remarks merely summarized the evidence and provided the ju r y with information about what the Government needed to prove. See Quercia, 2 8 9 U.S. at 469; Inocencio, 40 F.3d at 729-30. The court did not absolve the G o v e r n m e n t from proving the necessary facts to the jury, nor did it take any is s u e or element from the jury's consideration. See Inocencio, 40 F.3d at 729-30. Throughout the charge to the jury, the district court framed its comments in c o n t e x t of the Government's burden of proof and the jury's responsibility to 4

Case: 08-40760 Document: 00511319883 Page: 5 Date Filed: 12/13/2010 No. 08-40760 d e c id e the facts. Quercia, 289 U.S. at 469. Accordingly, the jury charge as a w h o le was not improper and did not direct a verdict on any issue. A F F IR M E D .

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