                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4305


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FRANCISCO SERRANO,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:09-cr-00683-SB-6)


Submitted:   March 26, 2013                 Decided:   April 5, 2013


Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Scarlet Moore, Greenville, South Carolina, for Appellant.
Williams N. Nettles, United States Attorney, Peter T. Phillips,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Francisco        Serrano         was        convicted       by     a        jury    of

conspiracy      to        distribute     and        to     possess       with       intent       to

distribute 5 kilograms or more of cocaine, 5 kilograms or more

of cocaine base, 50 grams or more of methamphetamine, and 500

grams or more of a mixture containing a detectible amount of

methamphetamine.           Both during and after the trial, Serrano moved

for a mistrial or a new trial, asserting that comments made by

several jurors to the deputy clerk demonstrated prejudgment of

Serrano’s     guilt.         The    district        court       denied    the       motion      and

sentenced     Serrano        to    180   months’         imprisonment.              On    appeal,

Serrano      argues       that     the   Government             and     the     trial       court

improperly commented on his bond status, and he challenges the

district court’s denial of his motions for a mistrial and a new

trial.    We affirm.

             We review the denial of a motion for a new trial or a

mistrial     for     an    abuse    of   discretion.             See    United       States      v.

Wilson, 624 F.3d 640, 660 (4th Cir. 2010); United States v.

Dorsey, 45 F.3d 809, 817 (4th Cir. 1995).                              We also review for

abuse of discretion challenges to juror qualifications.                                    United

States v. Turner, 389 F.3d 111, 115 (4th Cir. 2004).

             “It is well-settled, of course, that an accused is

entitled under the Sixth Amendment to trial by a jury composed

of   those    who     will    adhere     to    the        law   and     fairly       judge      the

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evidence.”         United States v. Smith, 451 F.3d 209, 219 (4th Cir.

2006).         The       trial    judge     “is       best       situated    to     determine

competency to serve impartially.”                       Patton v. Yount, 467 U.S.

1025, 1039 (1984); see United States v. Cabrera-Beltran, 660

F.3d 742, 749 (4th Cir. 2011), cert. denied, 132 S. Ct. 1935

(2012).        Thus, the trial judge possesses “very broad discretion

in     deciding          whether      to     excuse          a     juror     for      cause.”

Cabrera-Beltran, 660 F.3d at 749.

               We will recognize an abuse of such discretion and will

reverse “if the [district] court demonstrates a clear disregard

for the ‘actual bias’ of an individual venireman.”                                Turner, 389

F.3d at 115.         Our role is to determine whether “‘the trial judge

[was] very careful to see that the jury obtained is fair and

impartial,’”         and     permitted      “sufficient            information      to   come

forward so that he could exercise his discretion in an informed

way.”     Id. at 118 (quoting Neal v. United States, 22 F.2d 52, 53

(4th Cir. 1927)).                To this end, the district court judge “is

bound either to make or to permit such inquiries to be made as

will enable him in the exercise of his discretion to exclude

from the jury persons who have formed fixed opinions about the

case     and       are    not     fair     and       impartial      jurors    within      the

contemplation of the law.”                Neal, 22 F.3d at 53.

               A     juror       is   presumed         impartial       absent        contrary

evidence.          Wells v. Murray, 831 F.2d 468, 472 (4th Cir. 1987);

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see    Lockhart          v.    McCree,      476       U.S.       162,    184     (1986).         “The

existence of a juror’s preconceived notion as to the guilt of

the    accused        will     not    by      itself        destroy      the     presumption       of

impartiality.”            Wells, 831 F.2d at 472; see Irvin v. Dowd, 366

U.S. 717, 723 (1961).                 Rather, a juror is incompetent to serve

only if the juror cannot set aside this preconceived notion to

fairly judge the evidence.                      See Irvin, 366 U.S. at 723.                       The

challenger          bears     the    burden      of       establishing         such     partiality.

See    Wainwright         v.    Witt,      469       U.S.    412,       423    (1985).     A    trial

court’s findings that a juror is impartial may be overturned

only    based       on    “manifest        error.”           Patton,       467    U.S.     at    1031

(quoting Irvin, 366 U.S. at 723).

               Here, the statements posed by the jurors to the deputy

clerk    were        insufficient          to    demonstrate            that   the      jurors   had

reached       any    opinion,        fixed      or       otherwise,      regarding       Serrano’s

guilt.    The court made relevant inquiries of the deputy clerk,

under oath, before concluding that no bias was demonstrated by

the jurors’ statements.                    While the court did not question the

jurors directly, Serrano never requested that the court do so

and    thus    cannot         meet   his      burden        of   establishing         bias.       See

Turner, 389 F.3d at 119.                   Absent juror statements more strongly

raising   the        possibility         of     bias,       we    conclude       that    the    trial

court did not abuse its discretion in refusing to pursue the



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matter    further,     and   its    conclusion          that     the    jurors     were

impartial was not manifestly erroneous.

            Turning     to     Serrano’s        challenge        to     the     court’s

instructions and the prosecutor’s questions regarding Serrano’s

bond    proceedings,    we   note      that    Serrano     did    not     raise    this

challenge in the district court.               Thus, we review the issue for

plain    error.     United   States     v.     Olano,    507     U.S.    725,    731-32

(1993).    To establish plain error, Serrano must demonstrate that

1) there was error, 2) the error was plain, and 3) the error

affected his substantial rights.              Id.

            Serrano     argues      that       the      Government’s          questions

regarding his bond proceedings, as well as the district court’s

instructions to the jury regarding bond procedures, prejudiced

his fundamental rights.            Serrano relies principally on United

States v. Vargas, 583 F.2d 380 (7th Cir. 1978).                          However, we

find Vargas readily distinguishable on its facts.                        Neither the

Government’s      questions,     nor    the     trial    court’s        instructions,

sought to imply Serrano’s guilt based on his ability to make

bond.      Rather,     the   court’s       instructions        sought     to     answer

questions raised by the jury and, in fact, tended to reemphasize

that Serrano was innocent until proven guilty.                    The Government’s

questions indicated that the prosecutor opposed bond, but they

also elicited testimony that the court both released Serrano on

bond and permitted him to travel interstate during his release.

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Moreover,     Serrano    opened     the       door    to   these     questions     by

addressing      the   issue    of   bond      on     direct      examination.      We

therefore find no error, plain or otherwise, in the Government’s

questioning or the trial court’s instructions.

            Accordingly, we affirm the district court’s judgment.

We   dispense    with   oral   argument       because      the    facts   and   legal

contentions     are   adequately    presented         in   the    materials     before

this court and argument would not aid in the decisional process.


                                                                           AFFIRMED




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