U.S. v. Saenz

• Decision Date: 02 February 1998
• Docket Number: No. 96-40546,96-40546
• Citation: 134 F.3d 697
• Parties: 48 Fed. R. Evid. Serv. 1044 UNITED STATES of America, Plaintiff-Appellee, v. Baltazar SAENZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 697

134 F.3d 697

48 Fed. R. Evid. Serv. 1044

UNITED STATES of America, Plaintiff-Appellee, v. Baltazar SAENZ, Defendant-Appellant.

No. 96-40546.

United States Court of Appeals, Fifth Circuit.

Feb. 2, 1998.

Ricardo Lara, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Edward Michael Gillick, Gillick & Wenner, Tampa, FL, for Defendant-Appellant.

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

Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL ^*, District Judge.

PER CURIAM:

Defendant-appellant Baltazar Saenz was convicted following a jury trial on one count of conspiracy to possess with the intent to distribute a quantity in excess of 100 kilograms of marijuana, and one count of possession with the intent to distribute approximately 1,185 pounds of marijuana.

The primary basis for Saenz's challenge to his conviction is that the district court deprived him of a fair trial by questioning witnesses in a manner and to a degree that made the court appear to be partial to the prosecution. ¹ Saenz argues that the district court's questions of the chief prosecution witness and of the defendant confused the jury as to the court's function and led the jury to believe that the court favored the prosecution's case. The government responds that the court was merely attempting to clarify fact issues for the jury and that it did not create an appearance of favoring the prosecution's case.

We hold that under the unusual combination of circumstances present here, the cumulative effect of the trial court's questions deprived Saenz of a fair trial. We reverse and remand for a new trial.

I. Factual Background

In late 1994 and early 1995, the United States Customs Service ("Customs") office in Brownsville, Texas began an undercover sting operation designed to identify marijuana traffickers. Customs suspected Israel Soto-Zamarano ("Soto") of running a drug trafficking organization. Customs planned to have an undercover agent pose as a truck driver and offer to transport a large shipment of marijuana for Soto. The goal was not to make immediate arrests, but to identify other suspected traffickers and expand the investigation.

An undercover Customs agent established contact with Soto as planned. Soto arranged to deliver approximately 1,185 pounds of marijuana to the undercover agent in Brownsville on February 8, 1995, for shipment to the Tampa, Florida area. Israel Soto's brother, Ernesto Soto, was to receive the marijuana in the Tampa, Florida area. Israel Soto gave the agent a Florida telephone number for Ernesto Soto. Israel Soto intended to travel to Florida to oversee the delivery of the marijuana to his brother. However, on February 9, 1995, Israel Soto was arrested in Brownsville on an unrelated charge of weapons possession and incarcerated in the Cameron County jail. Customs agents found Baltazar Saenz's name and telephone number on a piece of paper in Israel Soto's wallet.

Despite Israel Soto's arrest, Customs proceeded with the marijuana delivery as planned. Customs flew the marijuana to Tampa. The delivery to Ernesto Soto was scheduled to occur at 6:00 p.m. on February 14, 1995, in a motel parking lot in Wesley Chapel, Florida. At 3:00 p.m. that day, a Customs agent conducting surveillance of the motel parking lot saw a white-paneled "bobtail" truck and a beige, wood-paneled Jeep Cherokee pull into the motel parking lot. The agent described the maneuvers he observed as "counter-surveillance" measures. The Jeep left the parking lot at approximately 3:45 p.m. The agent saw four people in the Jeep but could not identify them at that time.

Later that afternoon, an undercover Cameron County deputy sheriff, Abraham Rodriguez, met Ernesto Soto in a motel room in Wesley Chapel, Florida. Rodriguez was to receive $20,000 for the marijuana. Ernesto Soto did not have the money but said that he would return shortly to make the payment. At approximately 6:00 p.m., Ernesto Soto returned to the motel parking lot in the Jeep Cherokee. He gave deputy Rodriguez approximately $9,780 and the keys to the white truck to use to deliver the marijuana. Rodriguez agreed to meet Ernesto Soto later that night in a nearby parking lot to make the delivery. Deputy Rodriguez drove the truck back to a Customs warehouse and loaded the marijuana. Customs also installed a "kill- switch" in the truck that would allow the driver to stall the vehicle.

At 7:30 p.m., Customs agents observed the Jeep Cherokee in the designated parking lot. At approximately 7:45 p.m., deputy Rodriguez drove the delivery truck to within one-half block of the parking lot and flipped the kill-switch, stalling the truck near the entrance of the lot. When deputy Rodriguez got out of the truck and lifted the hood, the Jeep drove into the parking lot. Rodriguez saw four people in the Jeep and was able to identify Ernesto Soto in the back seat. As part of the prearranged plan, after Rodriguez gave Ernesto Soto the keys to the delivery truck, a police car pulled up behind the truck. Rodriguez told Ernesto Soto that the deal was off and left the parking lot. Ernesto Soto entered a restaurant next to the parking lot. Customs agents kept him under surveillance. Ernesto Soto and Israel Soto were arrested at a later date.

On December 5, 1995, Saenz was charged in two counts of a multicount indictment: in count one with conspiracy to possess marijuana with the intent to distribute, and in count three with possession of marijuana with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846, and 18 U.S.C. § 2. Saenz was arrested in Florida on January 8, 1996. After a jury trial held on March 7 and 8, 1996, the jury convicted Saenz on both counts. The court sentenced Saenz to a total of seventy-eight months of imprisonment. Saenz timely appealed.

II. The Evidence as to Baltazar Saenz

The government's case against Saenz on both the conspiracy and possession counts was short on physical evidence. Customs obtained the license plate number of the Jeep Cherokee and later learned that it was registered to Baltazar Saenz. Saenz's name and telephone number were on a piece of paper found in Israel Soto's wallet.

Neither deputy Rodriguez nor the Customs agents involved in the events of February 14, 1995 in Florida were able to place Saenz inside the Jeep. Rodriguez testified that he saw four individuals in the Jeep; he identified one of the back seat passengers as Ernesto Soto and described the other back seat passenger as "a short guy with an Afro." From photographs, Rodriguez later identified the front seat passenger as Joe Saenz, Baltazar Saenz's brother. Rodriguez could only state that Baltazar Saenz "[t]ends to look like the driver of the vehicle. Of the Cherokee."

The government's case against Saenz was based largely on Israel Soto's testimony. Soto pleaded guilty and as part of his plea agreement agreed to testify against Saenz. Soto's sentencing was delayed until after the trial. At trial, Soto testified that he met Saenz in Florida in 1983, when they both worked for a sod company. Soto testified that he and Saenz "sometimes ... used to get together, have a few beers." Soto testified that he and Saenz "used to be pretty good friends," and went so far as to say that he "love[s] the guy [Saenz]." Soto testified that he kept in touch with Saenz after Soto moved to Brownsville, Texas in 1989. In approximately 1993, Soto borrowed $1,000 from Saenz and did not repay the loan. Soto testified that he and Saenz agreed that "if we ever get something done, he could have deducted from that." Soto testified that "something" meant "[g]et some marijuana business done"; their agreement was that "[i]f I ever get some marijuana or something, [to] give [Saenz] a call and we work it out together." Soto testified that in December 1994, after he arranged to transport the marijuana to Florida, he called Saenz to ask whether Saenz would receive the shipment and try to sell the marijuana. According to Soto, Saenz agreed.

Soto testified that on February 9, 1995, he made a collect call to Saenz to tell him that "everything was going to be fine" and that the load was "on its way." Soto placed this call from the Cameron County jail. Telephone records confirmed two collect calls, each lasting seven to ten minutes, made from the Cameron County jail to Saenz's Florida residence on February 12 and 13, 1995. The records also showed seventeen telephone calls, each lasting approximately one minute, placed from Soto's residence in Lyford, Texas to Saenz's Florida residence between December 30, 1994 and March 1, 1995. The telephone records also showed several calls from Saenz's residence in Florida to the Brownsville, Texas area during the same period, but none to Soto's Lyford, Texas residence.

Soto testified that on February 15, 1995, after his release from jail, he called Saenz to "find out how things were going [with the load]." According to Soto, Saenz said that "everything went wrong" and that he suspected a set-up because the delivery truck had been in good condition when delivered to deputy Rodriguez. Saenz said that the load had been confiscated and that he had paid $9,780 to Rodriguez. Soto also testified that during the telephone call, Saenz said that he had gone back to pick up Ernesto Soto in the parking lot about an hour after Saenz had left in the Jeep.

Soto denied that he held "anything against Mr. Saenz personally" and explained that he was testifying against Saenz "[b]ecause I realize we made a mistake and I wanted to make it up to me." No other witnesses testified to Saenz's involvement in any aspect of the trafficking operation.

Beatrice Saenz, Saenz's wife, testified for the defense. She testified that she accepted two collect telephone calls from Soto because she thought that the calls were from her cousin, whose first name is also Israel. In each of the two collect calls, the...