                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                              FOR THE NINTH CIRCUIT                           APR 06 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 11-10217

      Plaintiff - Appellee,                      D.C. No. CR 09-0467-TUC-DCB

 v.
                                                 MEMORANDUM*
JOSE ADRIAN JAUREGUI-BARRAJAS,

      Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, Chief District Judge, and
                     David C. Bury, District Judge, Presiding**

                              Submitted March 16, 2012***
                               San Francisco, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
           The Honorable John M. Roll presided at trial, and the Honorable
David C. Bury presided at sentencing.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See FED. R. APP. P. 34(a)(2).
  Before: WALLACE, BEA, Circuit Judges, and BENNETT, District Judge.****


      Defendant-Appellant Jose Adrian Jauregui-Barrajas appeals his convictions

for conspiracy to possess marijuana with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, and possession of marijuana with

intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). We

have jurisdiction pursuant to 28 U.S.C. § 1291.

      Jauregui-Barrajas contends that the district court erred in finding that he

consented to a search of his residence and in denying his request to suppress the

evidence found during the search. Jauregui-Barrajas also contends that the district

court abused its discretion by denying his request to question members of the jury

about the juror’s contact with the ICE special agent and his motion for a mistrial.

We affirm.

      We review de novo the district court’s denial of a motion to suppress.

United States v. Russell, 664 F.3d 1279, 1280 n.1 (9th Cir. 2012). The underlying

factual findings are reviewed for clear error, id. at 1280 n.1, including a finding

that a person voluntarily consented to a search. United States v. Rodriguez-

Preciado, 399 F.3d 1118, 1125 (9th Cir. 2005). We review the district court’s


        ****
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
                                           2
decisions regarding alleged jury misconduct for an abuse of discretion. United

States v. Shryock, 342 F.3d 948, 973 (9th Cir. 2003). “‘We review alleged jury

misconduct independently, in the context of the entire record’ but ‘accord

substantial weight to the trial judge’s conclusion as to the effect of alleged juror

misconduct.’” United States v. Stinson, 647 F.3d 1196, 1216 (9th Cir. 2011)

(quoting United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988)). The

district court’s denial of a motion for a mistrial is reviewed for abuse of discretion.

United States v. Pineda-Doval, 614 F.3d 1019, 1036 (9th Cir. 2010).

      1.      The district court did not err in determining that Jauregui-Barrajas

voluntarily consented to the search of his residence in light of the “totality of the

circumstances,” United States v. Drayton, 536 U.S. 194, 207 (2002). The

evidence showed the following circumstances: the agents’ guns were not drawn,

Jauregui-Barrajas was questioned in a public place for a relatively short time in

normal conversational tones; the agents made no threats or promises; and,

Jauregui-Barrajas appeared to be relaxed and composed. He showed no signs of

fright, shock, or confusion. See United States v. Brown, 563 F.3d 410, 415-16 (9th

Cir. 2009).

      2.      The district court also did not abuse its discretion when it denied

Jauregui-Barrajas’s motion for a mistrial based on the juror’s ex parte contact with


                                           3
the ICE special agent when he changed a flat tire on the disabled juror’s

automobile following jury selection. The conversation between the juror and the

ICE special agent was brief and did not relate to the trial. Although the juror

testified that she would not be influenced in any way by the ICE special agent’s

assistance, the district court, nevertheless, removed the juror and replaced her with

the alternate juror, thus, avoiding any possible problems associated with the juror's

participation in jury deliberations. The district court then asked the remaining

members of the jury whether anything had happened that would compromise or

impair their ability to serve as fair and impartial jurors. No juror responded

affirmatively to the question. Thus, the district court thoroughly explored the

circumstances of the contact between the juror and the ICE special agent, assessed

the effect of the outside contact with the jury, and reasonably concluded that

because the juror who had the contact had been discharged, appropriate measures

had been taken to ensure that Jauregui-Barrajas would not be prejudiced. See

United States v. LaFleur, 971 F.2d 200, 206 (9th Cir. 1991) (“[W]e accord

‘substantial weight’ to the district court’s conclusion as to the effect of the [juror]

misconduct.”).

      AFFIRMED.




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