U.S. v. Borchardt, 82-2288

• Decision Date: 04 February 1983
• Docket Number: No. 82-2288,82-2288
• Citation: 698 F.2d 697
• Parties: 12 Fed. R. Evid. Serv. 613 UNITED STATES of America, Plaintiff-Appellee, v. Ira Eugene BORCHARDT, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 697

698 F.2d 697

12 Fed. R. Evid. Serv. 613

UNITED STATES of America, Plaintiff-Appellee, v. Ira Eugene BORCHARDT, Defendant-Appellant.

No. 82-2288

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1983.

Stephen M. Orr, Austin, Tex., for defendant-appellant.

John M. Potter, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, RANDALL and TATE, Circuit Judges.

GEE, Circuit Judge:

Borchardt was charged, by four counts of a six-count indictment, with conspiracy to import and to possess with intent to distribute

marijuana from November 1, 1980, to February 26, 1981 (counts 1 and 2), and with importing and possessing 481 pounds of marijuana on February 22, 1981 (counts 5 and 6). A jury found Borchardt guilty of these four counts. The district court sentenced him to consecutive five-year terms on counts 1 and 2, to five years on count 5 to run concurrently to the sentence on count 1, and to five years on count 6 to run consecutively to that on count 1, for a total of ten years, and to special parole terms of five years each on counts 5 and 6 to run concurrently. Borchardt appeals, with leave of court, in forma pauperis.

FACTS

"The facts in this case are intricate and complicated. The salient facts are worthy of disclosure; others, not germane ... [may] rest on the cold pages of the transcript and the parties' briefs." United States v. Kupper, 693 F.2d 1129, 1130 (5th Cir.1982).

Events began in August 1980 with a telephone conversation between Borchardt in Mexico City and one Howard Awalt in Irving, Texas, that led to a meeting between them "to renew old acquaintances." A second meeting among Borchardt, Awalt, Terry Tate, and another was held to discuss financial arrangements for importing approximately 1,100 pounds of marijuana. Tate was to give Borchardt $100,000 to purchase marijuana, which was to be flown into the United States to a place near Austin, Texas. Awalt gave Borchardt $6-7,000 to pay for a landing strip in Mexico and $300,000 in diamonds as an investment in the marijuana operation.

Financial difficulties concerning the importation arose, requiring Awalt and Borchardt to go to Mexico with $20,000 to pay to "the Commandante." One Collins, who was to handle distribution of the marijuana once it entered the United States, later brought more money to Borchardt in Mexico. Arrangements for importing the marijuana were made.

In December 1980 a 400-pound load was delivered to the Dallas area, but Borchardt encountered difficulties in finding pilots to fly the marijuana to Austin, delaying further shipments temporarily. While Borchardt was trying to make arrangements for further shipments, Awalt was arrested in January 1981. Eventually, Borchardt loaded a plane on February 21, 1981, at the Minatitlan International Airport. The plane encountered bad weather and ran out of gas when the transfer pump failed, crash-landing in a field near Raymondville, Texas, on February 22. On that same day, the police found the unoccupied plane loaded with wrapped packages later found to contain 481 pounds of marijuana. Further investigation led to the indictment in this case. Borchardt maintained at trial that his participation in these activities was part of his work for the Mexican Commandante at Oaxaca.

THE JUDGE'S COMMENTS

Borchardt contends that the trial judge improperly prejudiced the defense by asking questions that facilitated the introduction of the Government's evidence, as well as questions that adversely reflected on the credibility of the defense's witnesses.

The law governing a trial judge's participation in the trial is well established in this Circuit:

It is axiomatic ... that "[t]he trial judge has a duty to conduct the trial carefully, patiently, and impartially. He must be above even the appearance of being partial to the prosecution." ... On the other hand, a federal judge is not a mere moderator of proceedings.... He is a common law judge having that authority historically exercised by judges in the common law process. He may comment on the evidence, ... may question witnesses and elicit facts not yet adduced or clarify those previously presented, ... and may maintain the pace of the trial by interrupting or cutting off counsel as a matter of discretion.... Only when the judge's conduct strays from neutrality is the defendant thereby denied a constitutionally fair trial.

Moore v. United States, 598 F.2d 439, 442 (5th Cir.1979); accord, United States v. Jimenez-Dias, 659 F.2d 562, 566 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982); United States v. Bartlett, 633 F.2d 1184, 1188 (5th Cir.1981), cert. denied, 454 U.S. 820, 102 S.Ct. 101, 70 L.Ed.2d 91 (1981).

The transcript reflects that the trial judge actively participated in the questioning of witnesses, asking eighty questions of the prosecution's witnesses and 115 questions of those for the defense. "While such statistical comparisons are not without significance, '[t]he tenor of the court's questions rather than their bare number is the more important factor.' " Moore, 598 F.2d at 442 (citing United States v. Hoker, 483 F.2d 359, 366 (5th Cir.1973)).

A review of the instances of questioning cited by Borchardt causes us to conclude that, in their several contexts, the trial judge's questions sought only to clarify a witness's testimony either for the court, for the jury, or for counsel. See Fed.R.Evid. 614(b); Kyle v. United States, 402 F.2d 443, 444 (5th Cir.1968). On other occasions the trial judge interrupted counsel's questioning and reminded him of what the witness had already said. This questioning by the trial judge was pursuant to his discretion to interrupt and cut off counsel's questioning in order to expedite the proceedings and did not make the judge an advocate for the prosecution. See United States v. Hill, 496 F.2d 201, 202 (5th Cir.1974).

Borchardt also complains that the trial judge facilitated the admission of the Government's evidence through his questioning. Again, this questioning merely maintained the pace of the trial and did not reflect adversely on the defendant. On other occasions, the trial judge raised questions concerning the attempts of the defense counsel to place certain evidence or testimony before the jury, resulting in a series of exchanges between the judge and counsel. Although these exchanges may perhaps have raised questions in the jurors' minds about the competency of the defendant's trial counsel, they appear as sincere attempts to see that proper procedures were followed and did not call into question the credibility of the evidence or testimony. See Moore, 598 F.2d at 442-43.

The court also cross-examined the defendant's wife concerning the period of her separation from the defendant, questioned the defendant about his reasons for returning to Texas after the plane crashed, and inquired about why he expected the plane to land in Mexico when it ran out of fuel. This questioning was obviously "directed at eliciting information ... not provided during direct and cross-examination." Id. "[T]he court's questioning here was unbiased, patient and temperate, never argumentative or accusatory." Moore, 598 F.2d at 443. During the questioning of the defendant, the trial judge explicitly stated that "I haven't been implying anything by my questions other than I want to hear your answers."

Furthermore, the trial judge's charge to the jury emphasized that it was the sole judge of the facts, specifically cautioning the jurors against attributing significance to any of the comments he had made. He also explained his purpose in asking questions of the witnesses and admonished the jurors to lay no special weight on the fact that the judge had asked the questions. Borchardt has not demonstrated that the trial judge's questioning of witnesses and other comments denied him a fair trial or constituted reversible error.

GUILTY PLEA OF CO-CONSPIRATORS

Borchardt also asserts that the Government's eliciting of testimony about their guilty pleas from two coconspirators impermissibly suggested that Borchardt was also guilty, that the court's questioning exacerbated this error, and that a limiting instruction was not given, explaining that defense counsel did not object to the questioning or ask for an instruction because of a tactical decision not to draw further attention to the guilty pleas.

"A defendant is entitled to have the questions of his guilt determined upon the evidence against him, not on whether a Government witness or a codefendant has pled guilty to the same charge." United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir.1976), quoting Babb v. United States, 218 F.2d 538, 542 (5th Cir.1955).

The general rule in this Circuit is that a witness-accomplice's guilty plea may be brought out at trial, provided that evidence serves a legitimate purpose and the jury is properly instructed about the limited use they may make of it. See, e.g., United States v. Halbert, 640 F.2d 1000, 1004-05 (9th Cir.1981); United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979); cf. United States v. King, 505 F.2d 602, 607 (5th Cir.1974) (same rule under "plain error" standard of review). Counsel presenting witnesses of blemished reputation routinely bring out "such adverse facts as they know will be developed on cross-examination" in order to avoid even the appearance of an "intent to conceal." United States v. Aronson, 319 F.2d 48, 51 (2d Cir.1963), cert. denied, 375 U.S. 920, 84 S.Ct. 264, 11 L.Ed.2d 164 (1963); accord, Halbert, 640 F.2d at 1004-05; cf. United States v. Fleetwood, 528 F.2d at 532 (conviction reversed because Government deliberately introduced guilty pleas of others to create inference of guilt against accused). The only further requirement is that the jury be given a "clear and strong cautionary instruction," United States v. Baete, 414 F.2d...