UNITED STATES of America, Plaintiff-Appellee v. Daniel MELGOZA, Defendant-Appellant.
No. 11-50413
United States Court of Appeals, Fifth Circuit.
April 6, 2012.
Summary Calendar.
Kerrisa Joy Chelkowski, Law Office of Kerrisa Chelkowski, San Antonio, TX, for Defendant-Appellant.
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
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
Four witnesses testified that Melgoza 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
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
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 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, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (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 ju
AFFIRMED.