[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 29, 2006
No. 06-11447 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00097-CR-3-002-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS VERGARA-RIVEIRA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 29, 2006)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Juan Carlos Vergara-Riveira appeals his conviction for conspiracy to possess
with intent to distribute cocaine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846. We
affirm.
I. BACKGROUND
During voir dire, a prospective juror introduced herself by stating only that
she had traveled 81 miles to arrive at the courthouse. In response to a later
question about her feelings regarding drug use, the same prospective juror asserted
that “it’s common knowledge that Spanish-speaking immigrants, whether they are
legal or illegal, it’s common practice . . . that they sell drugs.” The district court
interrupted the juror and expressed sharp disagreement with the prospective juror’s
“personal bias.” In response, the juror suggested that the judge visit Destin,
Florida, to observe drug activity. Defense counsel moved to strike the jury panel.
At sidebar, the district court stated that half of the jurors were laughing at such a
blatant attempt to avoid jury duty and denied defense counsel’s request. The
district court dismissed the recalcitrant juror and warned the jury throughout the
impanelment and trial that the government must prove a defendant’s guilt beyond a
reasonable doubt.
At trial, the government introduced evidence that Vergara-Riveira, a
Spanish-speaking immigrant, had conspired to deliver a shipment of cocaine to
Destin. The jury convicted Vergara-Riveira.
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II. STANDARD OF REVIEW
We review issues raised for the first time on appeal for plain error. United
States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125 S.Ct.
2935 (2005). This standard requires that there be error, that it be plain, and that it
affect substantial rights. Id. at 1298. An error is not plain if it is not “clear under
current law.” United States. v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). To
satisfy the substantial rights test, the defendant must establish that there would
have been a different result had there been no error, with a probability sufficient to
undermine confidence in the outcome. Rodriguiez, 398 F.3d at 1299.
III. DISCUSSION
Vergara-Riveira argues for the first time on appeal that the district court,
after the recalcitrant juror made her comments, should have inquired whether those
comments had prejudiced the jury venire. This argument fails. Even assuming
that the failure of the district court to question the remaining panel members on the
effect of the juror’s statement was error, it was not plain error.
We have held that “[w]here statements made by potential jurors at voir dire
raise the spectre of ‘potential actual prejudice’ on the part of the remaining panel
members, specific and direct questioning is necessary to ferret out those jurors who
would not be impartial,” United States v. Dennis, 786 F.2d 1029, 1043-44 (11th
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Cir. 1986) (internal quotation marks omitted), but we have never ruled that a
statement by a juror had raised “the spectre of ‘potential actual prejudice.’” We
have explained instead that statements are not prejudicial when they do not relate
to the guilt or innocence of the defendant or to the parties or witnesses involved in
a specific case. See United States v. Chastain, 198 F.3d 1338, 1347-48 (11th Cir.
1999) (statements that the criminal justice system was more solicitous of criminals
than of victims); United States v. Khoury, 901 F.2d 948, 955 (11th Cir. 1990)
(emotional outburst by juror whose son had been killed in a drug-related incident);
Dennis, 786 F.2d at 1043-44 (statements about the consequences of drug use);
United States v. Tegzes, 715 F.2d 505, 506-508 (11th Cir. 1983) (statements about
the consequences of drug use). It is not “plain” that this juror’s ridiculous remarks
raised “the spectre of potential actual prejudice.”
Vergara-Riveira also fails to explain how the result of the trial would have
been different but for the failure of the district court to conduct an inquiry into
juror prejudice. The district court is in the best position to “observe the demeanor
of the other jurors and to evaluate any possible prejudice,” Tegzes, 715 F.2d at
509, and the district court observed that the remaining jurors had been “laughing at
the lady because she was so ridiculous” and “didn’t think that the jury was affected
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at all” by her transparent attempt to avoid serving on the jury. The district court
repeatedly instructed the jury about the presumption of innocence and the
requirement to decide the case only on the evidence presented at trial. At trial, the
government introduced substantial evidence to prove the charge against Vergara-
Riviera, including recorded conversations between him and his coconspirator.
The record discloses no reason to conclude that the juror’s comment adversely
affected the substantial rights of Vergara-Riviera.
IV. CONCLUSION
Vergara-Riviera’s conviction is AFFIRMED.
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