FILED
NOT FOR PUBLICATION JAN 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50156
Plaintiff - Appellee, D.C. No. 2:09-cr-00417-ODW-1
v.
MEMORANDUM *
MARTIN FRIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted December 5, 2012
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Martin Frias appeals from a final judgment entered following a jury trial in
which he was convicted on one count of using a facility of interstate commerce to
induce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. §
2422(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Frias argues that the district judge deprived him of his constitutional right to
an impartial jury, to a fair trial, and to due process when the judge suggested to the
venire that it would be “totally un-American” for a juror to claim that jury duty
was a hardship.1 The district judge’s exact words were as follows: “We start jury
selection now. We begin with whether or not serving on a jury till the end of the
week will cause a tremendous hardship on anyone. So here is the part where you
get to like raise your hand in front of God and everybody and admit that you are
totally unAmerican. Okay. Do it. Let me see it.”
Frias did not object to this statement at trial. On appeal, however, he argues
that it is “impossible to know how the judge’s instruction affected prospective
jurors and whether they harbored any biases they did not reveal out of concern that
they would be publicly humiliated by the court.” We disagree. The district judge
made clear that his statement pertained only to claiming a hardship exemption from
jury duty, not to voicing concerns about bias or prejudice. He later explained that
the voir dire was “the actual questioning of you wherein we want you to tell the
truth” and assured jurors that “[t]he idea is not to embarrass you.” Part-way
through the voir dire he even told jurors that he would not admonish them for
1
Because we conclude that there was no error, we need not decide whether
we review for structural error or harmless error. Under either standard, Frias’s
argument fails.
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being un-American if they revealed biases: “I am asking you all again, is there
anyone here who has any doubts whatsoever about their ability to be fair and
impartial? Now, this is one of those where you can raise your hand and it is okay.
I am not going to accuse you of being unAmerican.”
Several prospective jurors did disclose biases and embarrassing private
information. The prospective jurors’ responses show that the judge’s “un-
American” comment did not “chill” juror responses or create an environment in
which jurors felt unable to “admit publicly to any bias or prejudice against the
defendant,” as Frias argues. Although we do not condone the district judge’s
comment, we fail to see any constitutional error. See United States v. Mitchell, 568
F.3d 1147, 1150-51 (9th Cir. 2009) (“The Sixth Amendment right to a jury trial
guarantees the criminally accused a fair trial by a panel of impartial jurors,” and is
violated if the defendant can show actual bias on the part of a prospective juror or
if there is implied bias due to “the relationship between a prospective juror and
some aspect of the litigation.” (internal quotation and citation omitted)).
2. Frias also argues that the Government made statements during its closing
argument that were based on evidence that was not introduced at trial, in violation
of his Sixth Amendment right to a jury trial and his due process rights. We review
for plain error, and we find that there was no error. See United States v. Marcus,
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130 S. Ct. 2159, 2164 (2010). The Government’s closing argument closely tracked
Frias’s testimony, and it was permissible for the Government to point out that
Frias’s testimony differed from what he told FBI agents at the time of his arrest.
See United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011), cert. denied, 132 S.
Ct. 219 (2012) (“Prosecutors may . . . argue reasonable inferences based on the
evidence, including that one of the two sides is lying.” (internal quotations and
citation omitted)). Furthermore, the fact that the jurors asked questions about
evidence outside the record does not compel the conclusion that the prosecutor was
alluding to such evidence during his closing argument. There was therefore no
error.
AFFIRMED.
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