     Case: 15-41095      Document: 00513618962         Page: 1    Date Filed: 08/02/2016




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

                                    No. 15-41095
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 2, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

EDWARD ELISEO MARRON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-829-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Edward Eliseo Marron appeals his conviction by a jury of conspiracy to
possess with intent to distribute marijuana and two counts of possession with
intent to distribute marijuana. He argues that his right to trial by an impartial
jury was violated due to a prejudicial comment by a prospective juror during
voir dire. Marron asserts that the prospective juror’s remark – i.e., she worked
in the criminal department at a courthouse and thought that Marron “might


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-41095

have visited at one point or another” and “looked familiar” – tainted the jury
pool and precluded the empaneling of an impartial jury. Marron also contends
that the district court wrongly denied his motion for a mistrial or should have
investigated further whether the jury panel was contaminated by the remark.
      Marron attacked the impartiality of the jury in the district court and did
not intentionally forgo his right to challenge whether the jury was tainted. See
United States v. Olano, 507 U.S. 725, 733 (1993). We review the district court’s
determinations as to juror impartiality, the scope and method of voir dire, and
the manner of addressing possible jury misconduct for abuse of discretion. See
United States v. Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992); United States v.
Chiantese, 582 F.2d 974, 978 (5th Cir. 1978); United States v. Gerald, 624 F.2d
1291, 1296 (5th Cir. 1980). Likewise, we review the district court’s denial of a
motion for mistrial for abuse of discretion. United States v. Ramirez, 963 F.2d
693, 699 (5th Cir. 1992).
      Marron has not shown that the empaneled jury was partial or that the
district court abused its discretion in resolving his attacks on the impartiality
of the jury or denying his motion for a mistrial. See Hinojosa, 958 F.2d at 631;
Ramirez, 963 F.2d at 699. The prospective juror – who was dismissed for cause
because she repeatedly stated that she could not fairly judge the case – did not
state conclusively that Marron appeared at the courthouse or specify that the
purpose of any appearance was related to an ongoing criminal case or a prior
conviction; thus, the risk presented by the comment was, at most, attenuated.
See United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979). The comment
was not presumptively prejudicial, express an opinion about the facts or merits
of the instant case, or insinuate Marron’s guilt. There also is no indication that
any presumptively impartial juror, see United States v. Ruggiero, 56 F.3d 647,
652 (5th Cir. 1995), was influenced by the remark or that the comment affected



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                                  No. 15-41095

the ability of any empaneled juror to decide the case on the trial evidence. See
Patton v. Yount, 467 U.S. 1025, 1035 (1984); United States v. Warren, 594 F.2d
1046, 1049 (5th Cir. 1979). The district court, which was in the best position
to evaluate the impact of the remark, reasonably determined that the comment
did not give rise to potential prejudice and, therefore, no further questioning
was necessary to decide whether the impartiality of the jury was compromised.
See Hinojosa, 958 F.2d at 631; United States v. Garcia-Flores, 246 F.3d 451,
458 (5th Cir. 2001). Because Marron has not shown that his right to be tried
by an impartial jury was violated, we need not address his contention that the
alleged error implicates a structural defect.
      Also, Marron asserts that the prosecutor made impermissible comments
during closing arguments. He asserts that the prosecutor’s suggestion during
rebuttal that defense counsel’s argument – which highlighted alleged failings
in the Government’s investigation – was reminiscent of “that old saying, ‘The
greatest trick the devil ever pulled is convincing the world that he didn’t exist,’”
improperly injected religion into the case and attacked the character of defense
counsel. Because Marron did not object to the prosecutor’s remarks, our review
is for plain error. See United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir.
2008); United States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007).
      Marron has not shown that the prosecutor’s closing remarks were clearly
improper or cast serious doubt on the correctness of the verdict. See Thompson,
482 F.3d at 785. The remarks, considered in context, were not an invocation
of religion or a personal attack on defense counsel. By contending that counsel
was emphasizing extraneous issues, the prosecutor intended to highlight the
perceived weakness in Marron’s defense and note his inability to undermine
the inculpatory evidence. See United States v. Strmel, 744 F.2d 1086, 1089-90
(5th Cir. 1994). The prosecutor’s reference to the “devil” was rhetorical rather



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                                  No. 15-41095

than an improper religious reference or a targeted attack; the prosecutor did
not directly refer to counsel or Marron or depict them as demonic but quoted a
purported aphorism that the prosecutor believed to embody his argument that
the jury should not be distracted by irrelevant issues. Even if the prosecutor’s
remark was erroneous, Marron cannot show an effect on his substantial rights
because the isolated and indirect remark was connected to counsel’s argument
that the jury should focus on the relevant evidence; any prejudicial effect of the
remark was mitigated by the district court’s instructions to the jury; and the
evidence against Marron was sufficiently substantial that the remark would
not cast serious doubt on the correctness of the jury’s verdict. See Thompson,
482 F.3d at 785.
      AFFIRMED.




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