                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 08 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50156

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00417-ODW-1

  v.
                                                 MEMORANDUM *
MARTIN FRIAS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                      Argued and Submitted December 5, 2012
                               Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.


       Martin Frias appeals from a final judgment entered following a jury trial in

which he was convicted on one count of using a facility of interstate commerce to

induce a minor to engage in criminal sexual activity, in violation of 18 U.S.C. §

2422(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Frias argues that the district judge deprived him of his constitutional right to

an impartial jury, to a fair trial, and to due process when the judge suggested to the

venire that it would be “totally un-American” for a juror to claim that jury duty

was a hardship.1 The district judge’s exact words were as follows: “We start jury

selection now. We begin with whether or not serving on a jury till the end of the

week will cause a tremendous hardship on anyone. So here is the part where you

get to like raise your hand in front of God and everybody and admit that you are

totally unAmerican. Okay. Do it. Let me see it.”

      Frias did not object to this statement at trial. On appeal, however, he argues

that it is “impossible to know how the judge’s instruction affected prospective

jurors and whether they harbored any biases they did not reveal out of concern that

they would be publicly humiliated by the court.” We disagree. The district judge

made clear that his statement pertained only to claiming a hardship exemption from

jury duty, not to voicing concerns about bias or prejudice. He later explained that

the voir dire was “the actual questioning of you wherein we want you to tell the

truth” and assured jurors that “[t]he idea is not to embarrass you.” Part-way

through the voir dire he even told jurors that he would not admonish them for


      1
       Because we conclude that there was no error, we need not decide whether
we review for structural error or harmless error. Under either standard, Frias’s
argument fails.

                                          -2-
being un-American if they revealed biases: “I am asking you all again, is there

anyone here who has any doubts whatsoever about their ability to be fair and

impartial? Now, this is one of those where you can raise your hand and it is okay.

I am not going to accuse you of being unAmerican.”

      Several prospective jurors did disclose biases and embarrassing private

information. The prospective jurors’ responses show that the judge’s “un-

American” comment did not “chill” juror responses or create an environment in

which jurors felt unable to “admit publicly to any bias or prejudice against the

defendant,” as Frias argues. Although we do not condone the district judge’s

comment, we fail to see any constitutional error. See United States v. Mitchell, 568

F.3d 1147, 1150-51 (9th Cir. 2009) (“The Sixth Amendment right to a jury trial

guarantees the criminally accused a fair trial by a panel of impartial jurors,” and is

violated if the defendant can show actual bias on the part of a prospective juror or

if there is implied bias due to “the relationship between a prospective juror and

some aspect of the litigation.” (internal quotation and citation omitted)).

2.    Frias also argues that the Government made statements during its closing

argument that were based on evidence that was not introduced at trial, in violation

of his Sixth Amendment right to a jury trial and his due process rights. We review

for plain error, and we find that there was no error. See United States v. Marcus,


                                          -3-
130 S. Ct. 2159, 2164 (2010). The Government’s closing argument closely tracked

Frias’s testimony, and it was permissible for the Government to point out that

Frias’s testimony differed from what he told FBI agents at the time of his arrest.

See United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011), cert. denied, 132 S.

Ct. 219 (2012) (“Prosecutors may . . . argue reasonable inferences based on the

evidence, including that one of the two sides is lying.” (internal quotations and

citation omitted)). Furthermore, the fact that the jurors asked questions about

evidence outside the record does not compel the conclusion that the prosecutor was

alluding to such evidence during his closing argument. There was therefore no

error.

         AFFIRMED.




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