549 F.2d 990 (5th Cir. 1977), 76-1678, United States v. Ledee

Docket Nº:76-1678.
Citation:549 F.2d 990
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William LEDEE, Defendant-Appellant.
Case Date:March 31, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 990

549 F.2d 990 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


William LEDEE, Defendant-Appellant.

No. 76-1678.

United States Court of Appeals, Fifth Circuit

March 31, 1977

Page 991

Denis Dean, Eugene P. Spellman, Miami, Fla., for defendant-appellant.

John W. Stokes, U. S. Atty., Gale McKenzie, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GEWIN, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant, William Ledee, brings this appeal from a judgment of conviction entered after a jury found him guilty of six counts of causing to be transported in interstate commerce falsely made and forged securities in violation of 18 U.S.C. § 2314.

Appellant raises six different points of error in this appeal. The three we think merit discussion are:

1. Whether the court erred in failing to give appellant's requested voir dire questions pertaining to reasonable doubt, presumption of innocence, and burden of proof.

2. Whether the court erred in refusing to allow the appellant to present evidence before the jury that he had been previously acquitted on a charge involving a check which the government was permitted to introduce as part of the alleged scheme.

3. Whether the court erred in denying the appellant's request for a continuance in order to produce an F.B.I. handwriting examiner. Each is discussed below.

In 1974, appellant deposited seven checks drawn on the Pan American Bank of Tampa in Tampa, Florida into an account which appellant maintained at the Trust Company Bank in Atlanta, Georgia. The government proved that at the time these deposits were made appellant knew that the account in the bank of Tampa was closed and that the checks were forged or falsely made. Appellant was convicted on six of the seven counts charged and sentenced to six years incarceration. We affirm.

The first point appellant asserts is that the court below erred in failing to give appellant's requested voir dire questions pertaining to reasonable doubt, presumption of innocence and burden of proof. The questions requested, objected to by the government and refused by the court are set out in the margin. 1 Instead, the court asked the prospective jurors:

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Now the Court will instruct you, as most of you know who have served on juries, concerning all the various elements of law and the burden of proof that is involved. Are there any of you who feel that for any reason you cannot follow the law as stated to you by the Court in instructions. Are there any of you who have any reason to believe that, if selected as juror, you could not follow the law as stated by the Court, whether you disagree with the law or not. Are there any of you who feel you could not follow the law.

The instructions read to the jury at the close of the case included the law embodied in the appellant's requested questions.

Appellant raises the issue of whether, during voir dire of prospective jurors, the court must, upon request, inquire whether the jurors can accept certain propositions of law.

Rule 24(a) of the Federal Rules of Criminal Procedure states:

The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.

This rule allows the trial judge wide discretion as to the scope and conduct of voir dire examination and the decisions in this circuit have given the rule just such a liberal interpretation. 2 In particular the Fifth Circuit and several other circuits as well have held that it is not an abuse of that discretion to refuse to allow inquiries of jurors as to whether they can accept certain propositions of law. 3

In Stone v. United States, 324 F.2d 804 (5th Cir. 1963) defense counsel was personally permitted to question the prospective jurors during voir dire examination. He inquired of the prospective jurors,

. . . if at the close of this case the evidence appears to be well balanced, or even, would you tend to favor one side or the other?

The court immediately cautioned that questions that call for conclusions of law must first be addressed to the court. The court refused to allow the question in that form and then asked the prospective jurors if they would accept the law as the judge gives it to them. On appeal the Fifth Circuit

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agreed with the trial court's actions stating:

The procedure to be followed in a voir dire examination of jurors in a criminal case is within the discretion of the trial court. (Citations omitted)

The trial court did not permit the questioning of jurors with respect to propositions of law and its action was a proper one.

Supra, p. 807.

We therefore find no error in the decision of the trial court to sustain the government's objection to the five requested questions and recognize that the weight of authority supports this ruling. However, we must acknowledge that voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties.

A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does not know the strength and weaknesses of each litigant's case. Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed. 4

The federal and state courts employ different methods of voir dire examination. In the federal courts questioning is generally done by the judge and counsel may submit questions for the jury which the judge may or may not use. In most states the judge may ask introductory questions and then counsel for the parties may pursue their examination with reasonable limits on time and scope of the subject matter. 5 The American Bar Association Commission on Standards of Judicial Administration suggests a procedure somewhere in between, that is:

It should partake of the "federal" method in having the judge carry the burden of questioning, thus realizing economies of time and achieving an implicit identification of the jury as a neutral body. It should partake of the "state" method in...

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