     Case: 10-50505 Document: 00511482960 Page: 1 Date Filed: 05/19/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 19, 2011
                                     No. 10-50505
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JESUS CHRISTIAN LEON,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-458-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jesus Christian Leon challenges his jury-trial conviction for possession,
with intent to distribute, more than 50 kilograms of marijuana, in violation of
21 U.S.C. § 841. Leon asserts, for the first time on appeal, that the district court
erred by not declaring a mistrial sua sponte after being advised by Leon’s
attorney that a juror briefly saw defendant in custody of United States
Marshals. On questioning by the district judge, that juror admitted telling the



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-50505 Document: 00511482960 Page: 2 Date Filed: 05/19/2011

                                   No. 10-50505

other jurors about the incident.      That juror, with the agreement of Leon’s
attorney, was replaced with an alternate juror.
      Leon contends the conduct by the replaced juror constituted improper jury
contact. Because Leon did not object to the replacement of that juror, and
instead agreed to it, his claim is arguably waived. United States v. L’Hoste, 609
F.2d 796, 801 n.4 (5th Cir. 1980) (finding waiver of objection to alternate juror
where defendant did not object to selection of alternate during voir dire). Even
if he did not waive his claim, it fails under plain-error review. United States v.
Puckett, 505 F.3d 377, 384 (5th Cir. 2007) (noting that plain-error review applies
to forfeited errors).
      Under plain-error review, defendant must show a clear or obvious error
that affected his substantial rights. Id. Even if that showing is made, relief is
discretionary, and should be exercised only when the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings”. Id. (citation and
internal quotation marks omitted).
      The juror’s brief and inadvertent sighting of defendant in custody of
United States Marshals, and the communication of this observation with the
other jurors, is not so inherently prejudicial as to require a mistrial. The juror
stated she did not see defendant in handcuffs. Further, Leon has made no
showing of actual prejudice. See, e.g., United States v. Daniel, 813 F.2d 661, 664
(5th Cir. 1987) (finding no prejudice in the fleeting exposure to juror of
defendant in handcuffs); United States v. Escobar, 674 F.2d 469, 479-80 (5th Cir.
1982) (finding no prejudice where defendant, seen by juror during routine
security measures, failed to request either examination of jurors or a cautionary
instruction).
      AFFIRMED.




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