                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-13240                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            FEBRUARY 14, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                           D.C. Docket No. 2:06-cr-14029-KMM-1

UNITED STATES OF AMERICA,
lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

DERRICK COOPER,
a.k.a. "Coop",
a.k.a. "Blackboy",

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                     (February 14, 2011)

Before TJOFLAT, PRYOR and KRAVITCH , Circuit Judges.

PER CURIAM:

         In United States v. Stacy, 337 Fed.Appx. 837 (11th Cir. 2009), we affirmed
Derrick Cooper’s convictions at the hands of a jury for conspiracy to possess with

intent to distribute 50 or more grams of crack cocaine and possession with intent

to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846

and 841(a)(1), respectively. In affirming his convictions, the panel rejected

Cooper’s argument that the district court abused its discretion in denying

appellant’s motion for new trial based on newly discovered evidence of juror

misconduct. The panel described such evidence thusly: “General allegations came

to light during the trial that the juror . . ., Derrick Johnson, knew Cooper.” Id. at

840. It found no merit in Cooper’s motion because

      Cooper did not exercise due diligence in pursuing the issue prior to
      being found guilty. In addition, when the general allegations came to
      light, at trial and in open court, Cooper objected to the Government’s
      request to interview Johnson. Thus, Cooper invited any error
      committed by the district court in declining to pursue the allegations.


Id. While the above appeal was pending, Cooper filed two more motions for new

trial based on newly discovered evidence. In the first of these, he reiterated what

he had alleged in the motion the Stacy panel was considering, and alleged that

Derrick Johnson was a friend of a witness for the Government, Tyrone Williams,

and therefore was biased against Cooper. Attached to his motion were the

affidavits of three individuals who said they had seen Johnson with Williams. In



                                           2
the second motion, Cooper alleged that, according to the affidavit of Cornelius

Brayboy, Antonio Ferguson, a witness for the Government, admitted to him that

his testimony against Cooper was false—specifically, Ferguson lied when he

testified that he had bought kilos of cocaine from Cooper. Ferguson said this to

Brayboy while the two men were inmates at the Federal Detention Center in

Miami.

      The district court deferred ruling on these motions pending the disposition

of the appeal in Stacy. After the appeal concluded, the court denied both motions.

The court found that Cooper’s allegations regarding a friendship between

Williams and Johnson were mere speculation, and concluded that Cooper had

presented nothing to suggest that any such relationship influenced Johnson or the

other jurors in reaching their verdicts. The court then found that Brayboy’s

affidavit was not credible. The court noted, however, that, even if it credited

Brayboy’s allegations and disregarded Ferguson’s testimony, there was

nonetheless ample evidence to support the jury’s verdicts. The court concluded

nothing in the affidavits Cooper had presented would have changed the outcome

of the trial because the evidence of Cooper’s guilt was overwhelming. Cooper

now appeals the court’s denial of the two motions for new trial.

                                         I.

                                          3
      On appeal, Cooper argues that the district court abused its discretion in

finding that there was no evidence suggesting that Johnson was influenced by

Williams, because the affidavits established that Williams and Johnson knew each

other, and that any bond that the two had would have impacted Johnson’s ability

to objectively weigh Williams’s testimony and may have caused Johnson to

influence the other jurors. Cooper also argues that the district court abused its

discretion in finding that, aside from Williams’s testimony, there was ample other

evidence of Cooper’s guilt because Williams provided the most damaging

testimony against him.

      We review a district court’s decision on whether to grant a new trial or an

evidentiary hearing for an abuse of discretion. United States v. Quilca-Carpio,

118 F.3d 719, 722 (11th Cir. 1997). A court should ignore errors that do not affect

the essential fairness of the trial. United States v. Carpa, 271 F.3d 962, 966 (11th

Cir. 2001). A defendant bears the burden of proving that he is entitled to a new

trial. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc),

cert. denied, 129 S.Ct. 2790 (2009).

      A motion for new trial based on juror misconduct is a form of a motion for

new trial based on newly discovered evidence. United States v. Calderon, 127

F.3d 1314, 1351 (11th Cir. 1997). “To obtain a new trial . . . a party must first

                                          4
demonstrate that a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided a valid basis

for a challenge for cause.” McDonough Power Equip. Inc v. Greenwood, 464 U.S.

548, 556, 104 S. Ct. 845, 850, 78 L.Ed.2d 663 (1984). The jury does not,

however, have the duty to respond to questions not posed during voir dire. United

States v. Kerr, 778 F.2d 690, 694 (11th Cir. 1985). The second prong, that a

correct response would have provided a valid basis for a challenge for cause,

requires a showing of actual bias. BankAtlantic v. Blythe Eastman Paine Webber,

Inc., 955 F.2d 1467, 1473 (11th Cir. 1992) (citing United States v. Perkins, 748

F.2d 1519, 1532 (11th Cir. 1984)). Actual bias may be shown either by express

admission or by proof of specific facts showing such a close connection to the

circumstances at hand that bias must be presumed. Id. A juror’s bias may be

implied if the juror has a special relationship with a party, such as a familial or

master-servant relationship. United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.

1999).

      Trial courts are not required to investigate every allegation of juror

misconduct. United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990). In

relevant part, Federal Rule of Evidence 606(b) provides that:

      Upon an inquiry into the validity of a verdict or indictment, a juror

                                           5
      may not testify as to any matter or statement occurring during the
      course of the jury’s deliberations or to the effect of anything upon that
      or any other juror’s mind or emotions as influencing the juror to
      assent to or dissent from the verdict or indictment or concerning the
      juror’s mental processes in connection therewith, except that a juror
      may testify on the question whether extraneous prejudicial
      information was improperly brought to the jury’s attention or whether
      any outside influence was improperly brought to bear upon any juror.

Fed.R.Evid. 606(b); see also McElroy v. Firestone Tire & Rubber Co., 894 F.2d

1504, 1511 (11th Cir. 1990). Accordingly, to justify a post-trial hearing on juror

misconduct, a defendant “must show clear, strong, substantial and incontrovertible

evidence . . . that a specific nonspeculative impropriety has occurred.” Cuthel,

903 F.3d at 1383 (internal quotations omitted). “The more speculative or

unsubstantiated the allegation of misconduct, the less the burden to investigate.”

Id. (quoting United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985)).

      Here, Cooper has not met the standard for a new trial based on juror

misconduct. Because Johnson was asked during voir dire only if he knew the

prosecutor, agents, defense attorneys or defendants, and was neither provided with

the names of witnesses nor asked whether he knew any of the witnesses, Cooper

cannot prove that Johnson failed to answer a material voir dire question

untruthfully. Additionally, because Cooper’s affidavits affirmed only that Johnson

and Williams knew each other, and because Cooper failed to provide any proof of



                                         6
specific facts showing that Johnson had a “close connection” to Williams, he has

not met the standard to imply that Johnson was a biased juror. Additionally, none

of the affidavits alleged that Johnson improperly credited Williams’s testimony or

led the other members of the jury to place undue weight on Williams’s testimony.

Accordingly, Cooper’s allegations of Johnson’s misconduct were mere

speculation, and the district court did not abuse its discretion in declining to

conduct further investigation and denying Cooper’s request for a new trial.

                                           II.

      Cooper next argues that Brayboy’s affidavit that Ferguson’s testimony was

false constituted material newly-discovered evidence that would probably have

changed the result of his trial, and that the district court’s adverse credibility

determination against Brayboy was improper. Cooper also argues that the court’s

conclusion that there was ample other evidence of his guilt is without support in

the record.

      A new trial based upon newly discovered evidence is warranted only if:

(1) the new evidence was actually discovered after trial; (2) the defendant

exercised due care to discover the new evidence; (3) the new evidence is not

merely cumulative or impeaching; (4) the new evidence is material; and (5) the

new evidence is of such a nature that a new trial would probably produce a

                                            7
different result. United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005).

If a defendant fails to satisfy any one of these elements, he is not entitled to a new

trial. Id.

       Even if we treated Brayboy’s affidavit testimony as credible, we would

conclude, as the district court did, that Cooper failed to establish that he is entitled

to a new trial. The Government presented testimony from a number of witnesses

regarding Cooper’s drug trafficking activity. The jury was also provided with

transcripts of Cooper’s wiretapped phone calls, and a number of those calls were

played in open court. Additionally, because Cooper testified on his own behalf,

the jury was free to find that the opposite of Cooper’s testimony was true and

convict him, in part, on that basis. See United States v. Brown, 53 F.3d 312, 314

(11th Cir.1995) (holding that a statement by the defendant that the jury disbelieves

may be considered substantive evidence of his guilt because the jury is permitted

to conclude that the opposite of the defendant’s testimony is true). Thus, even

without Ferguson’s testimony, there was ample evidence presented at trial to

support the jury’s guilty verdicts, and it is accordingly improbable that a new trial

would result in Cooper’s acquittal. The district court thus did not abuse its

discretion in denying Cooper’s second motion for a new trial without an

evidentiary hearing.

                                           8
AFFIRMED.




            9
