                                                                              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                           NOT FOR PUBLICATION                                 FEB 11 2015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




                                            2
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.

                                            3
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




                                          4
      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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