US v. Francisco Serrano

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00683-SB-6 Copies to all parties and the district court/agency. [999080826].. [12-4305]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francisco
conspiracy

to

Serrano

distribute

was
and

convicted
to

by

possess

a

of

intent

with

jury

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.

sentenced

Serrano

Serrano

The

district
180

that

argues

to

the

court

months’

denied

the

motion

imprisonment.

Government

and

the

On
trial

and

appeal,
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
2

law

and

fairly

judge

the

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evidence.”
2006).

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United States v. Smith, 451 F.3d 209, 219 (4th Cir.
The

trial

judge

“is

best

competency to serve impartially.”

situated

to

determine

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).
in

Thus, the trial judge possesses “very broad discretion

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.”
F.3d at 115.

Turner, 389

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

contemplation of the law.”
A
evidence.

juror

is

and

impartial

jurors

within

the

Neal, 22 F.3d at 53.
presumed

impartial

absent

contrary

Wells v. Murray, 831 F.2d 468, 472 (4th Cir. 1987);
3

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see

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Lockhart

v.

McCree,

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476

U.S.

162,

184

(1986).

“The

existence of a juror’s preconceived notion as to the guilt of
the

accused

will

impartiality.”

not

by

itself

destroy

the

presumption

of

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.
challenger
See

bears

Wainwright

the

v.

See Irvin, 366 U.S. at 723.

burden

Witt,

of

469

establishing

U.S.

412,

such

423

The

partiality.

(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
opinion,

to

fixed

demonstrate
or

that

otherwise,

the

jurors

regarding

had

reached

any

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

Turner, 389 F.3d at 119.
raising

the

possibility

burden

of

establishing

bias.

See

Absent juror statements more strongly
of

bias,

we

conclude

that

the

trial

court did not abuse its discretion in refusing to pursue the

4

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further,

matter

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and

its

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conclusion

that

the

jurors

to

the

were

impartial was not manifestly erroneous.
Turning

to

Serrano’s

challenge

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

Olano,

error.

(1993).

United

States

v.

507

U.S.

725,

731-32

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.
Serrano

argues

Id.

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.
5

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Moreover,

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Serrano

addressing

the

opened

issue

of

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the

door

to

these

bond

on

direct

questions

examination.

by
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

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid in the decisional process.

AFFIRMED

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