UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4305
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO SERRANO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:09-cr-00683-SB-6)
Submitted: March 26, 2013 Decided: April 5, 2013
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scarlet Moore, Greenville, South Carolina, for Appellant.
Williams N. Nettles, United States Attorney, Peter T. Phillips,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Serrano was convicted by a jury of
conspiracy to distribute and to possess with intent to
distribute 5 kilograms or more of cocaine, 5 kilograms or more
of cocaine base, 50 grams or more of methamphetamine, and 500
grams or more of a mixture containing a detectible amount of
methamphetamine. Both during and after the trial, Serrano moved
for a mistrial or a new trial, asserting that comments made by
several jurors to the deputy clerk demonstrated prejudgment of
Serrano’s guilt. The district court denied the motion and
sentenced Serrano to 180 months’ imprisonment. On appeal,
Serrano argues that the Government and the trial court
improperly commented on his bond status, and he challenges the
district court’s denial of his motions for a mistrial and a new
trial. We affirm.
We review the denial of a motion for a new trial or a
mistrial for an abuse of discretion. See United States v.
Wilson, 624 F.3d 640, 660 (4th Cir. 2010); United States v.
Dorsey, 45 F.3d 809, 817 (4th Cir. 1995). We also review for
abuse of discretion challenges to juror qualifications. United
States v. Turner, 389 F.3d 111, 115 (4th Cir. 2004).
“It is well-settled, of course, that an accused is
entitled under the Sixth Amendment to trial by a jury composed
of those who will adhere to the law and fairly judge the
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evidence.” United States v. Smith, 451 F.3d 209, 219 (4th Cir.
2006). The trial judge “is best situated to determine
competency to serve impartially.” Patton v. Yount, 467 U.S.
1025, 1039 (1984); see United States v. Cabrera-Beltran, 660
F.3d 742, 749 (4th Cir. 2011), cert. denied, 132 S. Ct. 1935
(2012). Thus, the trial judge possesses “very broad discretion
in deciding whether to excuse a juror for cause.”
Cabrera-Beltran, 660 F.3d at 749.
We will recognize an abuse of such discretion and will
reverse “if the [district] court demonstrates a clear disregard
for the ‘actual bias’ of an individual venireman.” Turner, 389
F.3d at 115. Our role is to determine whether “‘the trial judge
[was] very careful to see that the jury obtained is fair and
impartial,’” and permitted “sufficient information to come
forward so that he could exercise his discretion in an informed
way.” Id. at 118 (quoting Neal v. United States, 22 F.2d 52, 53
(4th Cir. 1927)). To this end, the district court judge “is
bound either to make or to permit such inquiries to be made as
will enable him in the exercise of his discretion to exclude
from the jury persons who have formed fixed opinions about the
case and are not fair and impartial jurors within the
contemplation of the law.” Neal, 22 F.3d at 53.
A juror is presumed impartial absent contrary
evidence. Wells v. Murray, 831 F.2d 468, 472 (4th Cir. 1987);
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see Lockhart v. McCree, 476 U.S. 162, 184 (1986). “The
existence of a juror’s preconceived notion as to the guilt of
the accused will not by itself destroy the presumption of
impartiality.” Wells, 831 F.2d at 472; see Irvin v. Dowd, 366
U.S. 717, 723 (1961). Rather, a juror is incompetent to serve
only if the juror cannot set aside this preconceived notion to
fairly judge the evidence. See Irvin, 366 U.S. at 723. The
challenger bears the burden of establishing such partiality.
See Wainwright v. Witt, 469 U.S. 412, 423 (1985). A trial
court’s findings that a juror is impartial may be overturned
only based on “manifest error.” Patton, 467 U.S. at 1031
(quoting Irvin, 366 U.S. at 723).
Here, the statements posed by the jurors to the deputy
clerk were insufficient to demonstrate that the jurors had
reached any opinion, fixed or otherwise, regarding Serrano’s
guilt. The court made relevant inquiries of the deputy clerk,
under oath, before concluding that no bias was demonstrated by
the jurors’ statements. While the court did not question the
jurors directly, Serrano never requested that the court do so
and thus cannot meet his burden of establishing bias. See
Turner, 389 F.3d at 119. Absent juror statements more strongly
raising the possibility of bias, we conclude that the trial
court did not abuse its discretion in refusing to pursue the
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matter further, and its conclusion that the jurors were
impartial was not manifestly erroneous.
Turning to Serrano’s challenge to the court’s
instructions and the prosecutor’s questions regarding Serrano’s
bond proceedings, we note that Serrano did not raise this
challenge in the district court. Thus, we review the issue for
plain error. United States v. Olano, 507 U.S. 725, 731-32
(1993). To establish plain error, Serrano must demonstrate that
1) there was error, 2) the error was plain, and 3) the error
affected his substantial rights. Id.
Serrano argues that the Government’s questions
regarding his bond proceedings, as well as the district court’s
instructions to the jury regarding bond procedures, prejudiced
his fundamental rights. Serrano relies principally on United
States v. Vargas, 583 F.2d 380 (7th Cir. 1978). However, we
find Vargas readily distinguishable on its facts. Neither the
Government’s questions, nor the trial court’s instructions,
sought to imply Serrano’s guilt based on his ability to make
bond. Rather, the court’s instructions sought to answer
questions raised by the jury and, in fact, tended to reemphasize
that Serrano was innocent until proven guilty. The Government’s
questions indicated that the prosecutor opposed bond, but they
also elicited testimony that the court both released Serrano on
bond and permitted him to travel interstate during his release.
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Moreover, Serrano opened the door to these questions by
addressing the issue of bond on direct examination. We
therefore find no error, plain or otherwise, in the Government’s
questioning or the trial court’s instructions.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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