                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                   September 1, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,               Nos. 06-7009 and 06-7010
          v.                                          (E. D. of Okla.)
 JERRY LEE GRIST,                            (D.C. Nos. CR-05-64-01-W H and
                                                     TP-05-03-W H)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      A jury found Defendant-Appellant Jerry Lee Grist guilty on two counts of

possession of methamphetamine with intent to distribute. During voir dire, the

district court inadvertently misstated the presumption of innocence in a criminal

trial as one of guilt. The court promptly corrected the misstatement and later

questioned each prospective juror about the proper presumption in a criminal




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
trial. Defendant contends the district court’s error was incurable and a mistrial

should have been granted. W e disagree and AFFIRM .

                                  I. Background

      On July 12, 2005, James Lee Grist was indicted in the Eastern District of

Oklahoma on two counts of possession of a controlled substance with intent to

distribute.

      During jury selection for trial, the district court judge asked a potential

juror, “And you could presume [the defendant] guilty as the law requires you to?”

Aplt. App., at 18. Recognizing his mistake, the judge quickly corrected the

misstatement while noting the importance of the proper presumption in a criminal

trial. The defendant immediately moved for mistrial. The motion was denied.

The judge later asked each of the twenty-eight potential jurors individually to

state the proper presumption in a criminal case. Each juror responded that the

defendant w as innocent until proven guilty beyond a reasonable doubt.

      The jury found Grist guilty on both counts of the indictment. On January 9,

2006, he was sentenced to 210 months for Count I and 240 months for Count II to

be served concurrently and assessed $200.00. Grist filed this appeal charging the

judge’s misstatement was an incurable violation of his due process rights and that

a mistrial should have been granted.

                                   II. Discussion

A. Presum ption of Innocence

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      “Jury instructions must be examined as a whole and a de novo standard of

review is applied to determine the propriety of an individual jury instruction to

which objection was made at the time of trial.” United States v. Scarborough,

128 F.3d 1373, 1377 (10th Cir. 1997) (quoting United States v. M ullins, 4 F.3d

898, 900 (10th Cir. 1993)). To reverse a low er court judgment, an appellate court

must have a “substantial doubt that the jury was fairly guided.” Id. A single

instruction may not be judged in isolation, but “must be considered in the context

of the instructions as a whole and the trial record.” Estelle v. M cGuire, 502 U.S.

62, 72 (1991).

      “The Constitution guarantees a defendant a fair trial, not a perfect one.”

United States v. M cHorse, 179 F.3d 889, 904 (10th Cir. 1999) (citing United

States v. M itcheltree, 940 F.2d 1329, 1334 (10th Cir. 1991)); see also Rose v.

Clark, 478 U.S. 570, 579 (1986). A momentary mistake does not invalidate an

entire trial as a matter of course. “[N]ot all improper comments require a new

trial or reversal on appeal. It is only when a remark could have influenced the

jury's verdict and the trial court failed to take appropriate steps to remove it from

the jury's consideration that there is reversible error.” United States v. Kendall,

766 F.2d 1426, 1440 (10th Cir. 1985). In other words, where a judge takes steps

that cure the error, the trial may go forward without fear of reversal on appellate

review. Analyzing whether an error has been sufficiently cured is necessarily a

fact-based exercise.

                                          -3-
      Grist contends that the following exchange between the district court judge

and a potential juror constituted an incurable, prejudicial jury instruction:

             THE COURT: Okay. You can listen to whatever evidence the
      Defendant will put on?
             [JU ROR]: Right.
             THE COURT: And you could presume him guilty as the law
      requires you to? I’m sorry.
             [JU ROR]: Innocent.
             THE COURT: I apologize. I apologize. Excuse me, ma’am, just
      a minute. I made a mistake and I need to clear that up. I understand
      you’re laughing and I laugh at my mistake, too, but that is a bad
      mistake I made. The D efendant is presumed innocent until proven
      guilty beyond a reasonable doubt and let there be no doubt in any of
      your minds that’s what I meant to say. . .

Aplt. App., at 18–19.

       The district court judge immediately recognized its slip of the tongue and

promptly issued a curative instruction that left no doubt of the proper

presumption in a criminal trial. The curative instruction alone was sufficient to

cure the mistake. See United States v. Gonzales, 58 F.3d 506, 512 (10th Cir.

1995) (“immediate curative instruction by the court” could remedy prosecutor’s

slip of the tongue regarding burdens in criminal case).

       But the district court went further to cure the error by asking each

individual juror to state the appropriate presumption. All twenty-eight jurors

correctly answered innocent until proven guilty beyond a reasonable doubt. The

court further reminded the jury of the proper presumption of innocence before

swearing them in as well as in the final jury instructions before deliberation.



                                          -4-
There can be little doubt, let alone the “substantial doubt” required to reverse,

that the jury was fairly guided on the matter.

          The only way the district court error here could prove incurable is if it

were structural error. Structural error occurs when the entire trial framew ork or

process is undermined by the error so that a defendant has been deprived of basic

protections in determining guilt or innocence. Walker v. Gibson, 228 F.3d 1217,

1236 (10th Cir. 2000), abrogated on other grounds, Neill v. Gibson, 278 F.3d

1044 (10th Cir. 2001). W hen a defendant has been afforded counsel and an

impartial adjudicator, there is a strong presumption that structural error has not

occurred. United States v. Dowlin, 408 F.3d 647, 668 (10th Cir. 2005); see also

Rose, 478 U.S. at 579. 1 “[T]he determination of whether an error is structural

depends on not only the right violated, but also the ‘nature, context, and

significance of the violation.’” United States v. Pearson, 203 F.3d 1243, 1261

(10th Cir. 2000) (quoting Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir.

1996)). As long as the error in the case did not affect the composition of the

record, so that “a reviewing court can find that the record developed at trial

establishes guilt beyond a reasonable doubt, the interest in fairness has been

satisfied and the judgment should be affirmed.” Rose, 478 U.S. at 579, 579 n.7.




      1
        As in Walker v. Gibson, we do not need to address the constitutionality of
the district court’s error, because we do not find the error structural. 228 F.3d at
1235–36.

                                            -5-
      The district judge’s slip of the tongue did not constitute structural error.

In his brief, appellant admits the judge’s misstatement was unintentional.

Nowhere does the appellant question the judge’s impartiality at trial. The

misstatement constituted no more than an insignificant verbal hiccup. Placed in

the context of the surrounding circumstances, there is no reason to conclude that

the misstatement affected the composition of the overall trial record. The

curative efforts of the district court were laudable and more than sufficient to

remedy its fleeting error.

B. M otion for M istrial

      “[M ]otions for mistrial...call for an examination of the prejudicial impact

of an error or errors when viewed in the context of an entire case. This court

reviews the trial court’s ruling on such motions under an abuse of discretion

standard.” United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).

      Grist contends that the pages of the district court transcript cannot convey

the feeling of the courtroom. He argues that the judge’s efforts to cure the error

by questioning each of the twenty-eight jurors on the proper presumption “took

on the appearance of a game or an inside joke” so that “the importance of the

issue had faded.” A plt. Brief, at 7. Taken in this light, the appellant believes his

request for mistrial should have been granted.

      The appellant is correct in his contention that we are not in a position to

judge the feeling of the courtroom by the transcript. It is precisely because w e

                                         -6-
are not in a position to assess courtroom emotion that motions for mistrial

require an “abuse of discretion” standard of review. See 5 W ayne R. LaFave et

al., Criminal Procedure § 27.5(e) (2d ed.1999). The trial judge is in a better

position to determine the feel of the courtroom and whether a mistrial is

warranted. Here, we have no basis in the record to conclude the curative

statements were ineffective, nor does the passage of time between the

misstatement and the juror colloquy regarding the burden of proof suggest

otherwise. The district court did not abuse its discretion in denying the motion

for mistrial.

C. Probation

       At the time of his indictment, Grist was on supervised release for an

earlier drug conspiracy conviction. Grist’s possession of a controlled substance

and commission of a crime violated the terms of his supervised release. The

District Court for the W estern District of Oklahoma transferred jurisdiction of

the earlier drug conviction to the Eastern District, where Grist’s probation officer

filed a petition for probation action based on Grist’s violation of the supervised

release. The same day that Grist was sentenced for the charges above, the

district court revoked the supervised release, adding 37 months to G rist’s

sentence. Grist appeals revocation of that release based solely on the challenges

presented above. As we have rejected those grounds, we affirm the district

court’s revocation of appellant’s supervised release.

                                        -7-
                                  III. Conclusion

      Based on the foregoing reasons we find the district court’s error during

voir dire cured, its denial of the motion for mistrial within its discretion, and its

revocation of appellant’s supervised release proper. Therefore, we AFFIRM on

all counts.

                                                      Entered for the Court

                                                      Timothy M . Tymkovich
                                                      Circuit Judge




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