United States v. Oscar Ortiz-Martinez , 593 F. App'x 649 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50335
Plaintiff - Appellee, D.C. No. 3:10-cr-03986-BTM-1
v.
MEMORANDUM*
OSCAR OSBALDO ORTIZ-MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, Chief District Judge, Presiding
Submitted February 5, 2015**
Pasadena, California
Before: MELLOY,*** BYBEE, and IKUTA, Circuit Judges.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here. Appellant Oscar Ortiz-Martinez appeals from a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
judgment of conviction on one count of conspiracy to import heroin, cocaine, and
methamphetamine and one count of bribery. We affirm the conviction.
Ortiz-Martinez makes two arguments why his conviction should be reversed,
both of which have to do with the voir dire that preceded his trial. First, Ortiz-
Martinez argues that the district court erred by failing to excuse two biased
potential jurors for cause. Second, he argues that comments made by one of those
potential jurors during the voir dire tainted the entire jury panel and that the district
court should have either struck the venire or conducted further voir dire to
ascertain the effect of the allegedly prejudicial comments.
Both of these arguments lack merit. Ortiz-Martinez’s first claim fails
because neither of the potential jurors he claims were biased actually sat on his
jury; he used peremptory challenges to strike both of them. The Supreme Court
has held that, “if [a] defendant elects to cure” the erroneous denial of his cause
challenge to a potential juror “by exercising a peremptory challenge, and is
subsequently convicted by a jury on which no biased juror sat, he has not been
deprived of any rule-based or constitutional right.” United States v. Martinez-
Salazar, 528 U.S. 304, 307 (2000). Thus, even assuming that the two potential
jurors were indeed biased, the district court’s failure to excuse them for cause did
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not violate Ortiz-Martinez’s constitutional rights. Comer v. Schriro, 480 F.3d 960,
990 (9th Cir. 2007).1
Neither did the district court violate Ortiz-Martinez’s Sixth Amendment
rights by failing sua sponte to strike the venire or conduct additional voir dire after
a potential juror said in front of the venire that she recalled having seen news
stories that might have been about Ortiz-Martinez’s case and that she suspected
that Ortiz-Martinez was guilty. It is true that a potential juror can taint the rest of
the venire by making “expert-like statements” that bolster the evidence against the
defendant, see Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997), or by
mentioning “extrinsic evidence [that is] highly inflammatory and directly
connected to [the defendant’s] guilt.” Id. at 634. The juror in question, however,
did neither of these things.
The juror did not claim to have expert knowledge that corruption was
common among Customs and Border Protection (CBP) officers. Nor did she
indicate that any of the specific facts in the stories she saw convinced her that
Ortiz-Martinez was guilty. Rather, the juror stated that she had a personal bias
towards finding Ortiz-Martinez guilty because of her hunch that CBP officers
1
Indeed, in his reply brief, Ortiz-Martinez himself acknowledged that his
first argument is foreclosed by Martinez-Salazar.
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frequently give in to the “temptation” to take bribes—a hunch that was only
loosely connected to any news stories she had seen. Explanations of a juror’s
personal biases and suspicions do not taint the entire venire. See, e.g., United
States v. Vargas-Rios, 607 F.2d 831, 837 (9th Cir. 1979).
We also note that the district court used multiple curative instructions to
lessen the impact of the juror’s statements regarding the news stories. Cf. Mach,
137 F.3d at 634 n.5. The court emphasized several times that jurors were required
to decide the case solely on the basis of the evidence presented in the courtroom,
and it gave several strong admonitions regarding the presumption of innocence and
the requirement of proof beyond a reasonable doubt. All of the venire members
indicated that they understood and could follow those instructions.
We therefore cannot say “that the evidence of partiality before the district
court was so indicative of impermissible juror bias that the court was obliged to
strike [the venire], even though neither counsel made the request.” United States v.
Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009). The conviction is
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AFFIRMED.2
2
While this appeal was pending, Ortiz-Martinez filed two pro se motions
with this court—the first seeking leave to file a supplemental brief and the second
requesting that the court appoint him new counsel. This court, however, does not
entertain pro se motions from parties represented by counsel. We therefore deny
both motions.
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