                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               NOV 29, 2006
                               No. 06-11447                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                  D. C. Docket No. 05-00097-CR-3-002-LAC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JUAN CARLOS VERGARA-RIVEIRA,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                             (November 29, 2006)

Before ANDERSON, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

     Juan Carlos Vergara-Riveira appeals his conviction for conspiracy to possess
with intent to distribute cocaine. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 846. We

affirm.

                                  I. BACKGROUND

      During voir dire, a prospective juror introduced herself by stating only that

she had traveled 81 miles to arrive at the courthouse. In response to a later

question about her feelings regarding drug use, the same prospective juror asserted

that “it’s common knowledge that Spanish-speaking immigrants, whether they are

legal or illegal, it’s common practice . . . that they sell drugs.” The district court

interrupted the juror and expressed sharp disagreement with the prospective juror’s

“personal bias.” In response, the juror suggested that the judge visit Destin,

Florida, to observe drug activity. Defense counsel moved to strike the jury panel.

At sidebar, the district court stated that half of the jurors were laughing at such a

blatant attempt to avoid jury duty and denied defense counsel’s request. The

district court dismissed the recalcitrant juror and warned the jury throughout the

impanelment and trial that the government must prove a defendant’s guilt beyond a

reasonable doubt.

      At trial, the government introduced evidence that Vergara-Riveira, a

Spanish-speaking immigrant, had conspired to deliver a shipment of cocaine to

Destin. The jury convicted Vergara-Riveira.



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                           II. STANDARD OF REVIEW

      We review issues raised for the first time on appeal for plain error. United

States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125 S.Ct.

2935 (2005). This standard requires that there be error, that it be plain, and that it

affect substantial rights. Id. at 1298. An error is not plain if it is not “clear under

current law.” United States. v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). To

satisfy the substantial rights test, the defendant must establish that there would

have been a different result had there been no error, with a probability sufficient to

undermine confidence in the outcome. Rodriguiez, 398 F.3d at 1299.

                                  III. DISCUSSION

      Vergara-Riveira argues for the first time on appeal that the district court,

after the recalcitrant juror made her comments, should have inquired whether those

comments had prejudiced the jury venire. This argument fails. Even assuming

that the failure of the district court to question the remaining panel members on the

effect of the juror’s statement was error, it was not plain error.

      We have held that “[w]here statements made by potential jurors at voir dire

raise the spectre of ‘potential actual prejudice’ on the part of the remaining panel

members, specific and direct questioning is necessary to ferret out those jurors who

would not be impartial,” United States v. Dennis, 786 F.2d 1029, 1043-44 (11th



                                            3
Cir. 1986) (internal quotation marks omitted), but we have never ruled that a

statement by a juror had raised “the spectre of ‘potential actual prejudice.’” We

have explained instead that statements are not prejudicial when they do not relate

to the guilt or innocence of the defendant or to the parties or witnesses involved in

a specific case. See United States v. Chastain, 198 F.3d 1338, 1347-48 (11th Cir.

1999) (statements that the criminal justice system was more solicitous of criminals

than of victims); United States v. Khoury, 901 F.2d 948, 955 (11th Cir. 1990)

(emotional outburst by juror whose son had been killed in a drug-related incident);

Dennis, 786 F.2d at 1043-44 (statements about the consequences of drug use);

United States v. Tegzes, 715 F.2d 505, 506-508 (11th Cir. 1983) (statements about

the consequences of drug use). It is not “plain” that this juror’s ridiculous remarks

raised “the spectre of potential actual prejudice.”

      Vergara-Riveira also fails to explain how the result of the trial would have

been different but for the failure of the district court to conduct an inquiry into

juror prejudice. The district court is in the best position to “observe the demeanor

of the other jurors and to evaluate any possible prejudice,” Tegzes, 715 F.2d at

509, and the district court observed that the remaining jurors had been “laughing at

the lady because she was so ridiculous” and “didn’t think that the jury was affected



                                            4
at all” by her transparent attempt to avoid serving on the jury. The district court

repeatedly instructed the jury about the presumption of innocence and the

requirement to decide the case only on the evidence presented at trial. At trial, the

government introduced substantial evidence to prove the charge against Vergara-

Riviera, including recorded conversations between him and his coconspirator.

The record discloses no reason to conclude that the juror’s comment adversely

affected the substantial rights of Vergara-Riviera.

                                IV. CONCLUSION

      Vergara-Riviera’s conviction is AFFIRMED.




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