United States v. Hoffman-Portillo ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 14, 2003
Charles R. Fulbruge III
Clerk
No. 02-51037
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO HOFFMAN-PORTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1196-EP
Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Pablo Hoffman-Portillo (Hoffman) appeals his conviction for
importation of marihuana in violation of 21 U.S.C. §§ 952(a),
960(a)(1), and for possession with intent to distribute marihuana
in violation of 21 U.S.C. § 841(a)(1). Hoffman argues that the
district court abused its discretion in denying his motion for a
new trial on the ground of juror misconduct.
*
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opinion should not be published and is not precedent except under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.
In support of his motion, Hoffman attached the affidavit of a
juror, Jan Dobrin, in which Dobrin stated that after the jury had
been sworn and before evidence was taken, another juror stated,
“[w]here there’s smoke, there’s fire,” and “[T]he police don’t
arrest you for nothing.” Dobrin’s affidavit, however, is
inadmissible pursuant to Federal Rule of Evidence 606(b). See
United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991). We also
conclude that the district court did not abuse its discretion in
declining to investigate the allegations of juror misconduct and in
denying Hoffman’s motion for a new trial. See United States v.
Rivera, 295 F.3d 461, 470 (5th Cir. 2002); Grooms v. Wainwright,
610 F.2d 344, 347 (5th Cir. 1980).
Moreover, to the extent that Hoffman argues that the district
court should have entertained evidence concerning, or further
investigated the possibility of, juror bias based on Dobrin’s
affidavit, that argument is also without merit. “The proper time
to discover such [juror prejudice] is when the jury is being
selected and peremptory challenges are available to the attorneys.”
United States v. Duzac, 622 F.2d 911, 913 (5th Cir. 1980). A
jury’s “verdict may not be disturbed if it is later learned that
personal prejudices were not put aside during deliberations.” Id.Moreover, even where jurors may have made “premature expressions as
to guilt, we generally defer to the district court’s decision as to
whether the defendant received a fair trial by an impartial jury.”
2
United States v. Collins, 972 F.2d 1358, 1404 (5th Cir. 1992).
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
3