776 F.2d 455 (4th Cir. 1985), 83-5060, United States v. Ricks

Docket Nº:83-5060(L), 83-5061 through 83-5066 and 83-5081.
Citation:776 F.2d 455
Party Name:UNITED STATES of America, Appellee, v. Thomas Calvin RICKS, a/k/a Joe Dancer, Appellant. UNITED STATES of America, Appellee, v. James A. CARTER, Appellant. UNITED STATES of America, Appellee, v. Marcell MOFFATT, a/k/a Black Barney, Appellant. UNITED STATES of America, Appellee, v. Stanley RODGERS, Appellant. UNITED STATES of America, Appellee, v. K
Case Date:October 10, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 455

776 F.2d 455 (4th Cir. 1985)

UNITED STATES of America, Appellee,

v.

Thomas Calvin RICKS, a/k/a Joe Dancer, Appellant.

UNITED STATES of America, Appellee,

v.

James A. CARTER, Appellant.

UNITED STATES of America, Appellee,

v.

Marcell MOFFATT, a/k/a Black Barney, Appellant.

UNITED STATES of America, Appellee,

v.

Stanley RODGERS, Appellant.

UNITED STATES of America, Appellee,

v.

Kerney William LINDSEY, a/k/a Wilco, Appellant.

UNITED STATES of America, Appellee,

v.

Clifton Leo FRISBY, Appellant.

UNITED STATES of America, Appellee,

v.

Beatrice ROBERTS, Appellant.

UNITED STATES of America, Appellee,

v.

Maurice David KING, a/k/a Peanut, Appellant.

Nos. 83-5060(L), 83-5061 through 83-5066 and 83-5081.

United States Court of Appeals, Fourth Circuit

October 10, 1985

Argued May 6, 1985.

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[Copyrighted Material Omitted]

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Ransom J. Davis, Stuart R. Blatt, Baltimore, Md., W. Gary Kohlman, Washington, D.C., Charles Lee Nutt, William H. Murphy, Baltimore, Md. (H. Russell Smouse, Harry J. Matz, Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, Md.; Kenneth Michael Robinson, Washington, D.C., Edward Smith, Jr., Cummings & Smith, P.A., Jack Rubin, Baltimore, Md., on brief), for appellants.

J. Frederick Motz, U.S. Atty., Baltimore, Md., for appellee.

Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and TURK, Chief District Judge, United States District Court for the Western District of Virginia, sitting by designation.

HARRISON L. WINTER, Chief Judge:

Eight defendants convicted by a jury of a variety of narcotic offenses appeal assigning divers reasons why the judgments of their convictions should be set aside. We perceive as a basic error in their trials the effective denial of their statutory right to peremptory challenges in the selection of the jury. This error is sufficient to require reversals and a new trial. We decide the case solely on this ground, although we comment on defendants' other contentions which relate to issues that are bound to arise on retrial.

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I.

Defendants Ricks, Carter, Moffatt, Rogers, Lindsey, Frisby, Roberts and King were all convicted of engaging in a conspiracy to possess and distribute heroin and cocaine in violation of 21 U.S.C. Sec. 846. King and Ricks, two of the leaders of the conspiracy, were also convicted of other related substantive offenses, of conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, and of violation of the Travel Act, 18 U.S.C. Sec. 1952. 1 The case, which took five weeks to try, arose from the operation of a major drug distribution organization in Baltimore City. Defendants King, Ricks and Meredith were the heads of the organization; defendant Carter the financial advisor; defendants Moffatt, Lindsey and Hurt were lieutenants of certain inner city street corners where drugs were sold; defendant Frisby was a sublieutenant and distributor; defendant Rogers was a courier of drugs and money; and defendant Roberts was the girlfriend of Ricks who allowed her apartment to be used for illegal purposes and who otherwise assisted in the operation.

Our statement of facts is limited by the basis on which we decide the case and further limited to the recurrent issues that we think warrant comment.

II.

When the trial of the nine defendants began, they, of course, together with the government, had a statutory right to peremptory challenges in the jury selection process. Since the offenses charged were punishable by imprisonment for more than one year, Fed.R.Crim.P. 24(b) provided that the government was entitled to six peremptory challenges and the defendants jointly to no less than ten peremptory challenges. The rule provides that where "there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." The rule also provides that defendants and the government are entitled to additional peremptory strikes if alternate jurors are used--one challenge for up to two alternate jurors and two challenges for up to four alternate jurors. Fed.R.Crim.P. 24(c).

The district court granted defendants jointly twelve peremptory challenges for the main jury, 2 with six for the government. The district court concluded to use four alternate jurors, and it granted defendants jointly and the government each two peremptory challenges exercisable against the alternates. 3

Seventy-five veniremen reported for jury duty on the day that defendants' trial began. The seventy-five were ultimately divided into two groups--a group of sixty-six from which active jurors in this case were to be chosen and a group of nine from which alternate jurors were to be chosen. The record suggests that such a large number was brought in because one or more other district judges would select juries

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from the pool once the jury in defendants' case had been selected. 4

Before voir dire began, an Assistant United States Attorney inquired of the court about the portion of the list that the court contemplated using in drawing a jury. The inquiry was apparently generated by the unusually large list of veniremen. The actual inquiry and the court's response follow:

MR. ULWICK: Your Honor, may I assume that we'll be--or the Court will be picking from the top of the list?

THE COURT: Well, of course I can't tell at this point, as far as strikes and so forth, but ordinarily I start from the top, not any rigid number, counting from the top, so I think it would be reasonably fair to say, if you want to exercise your strikes mostly at the top, and if you're satisfied with the top, don't strike there. 5

In the course of voir dire, nine veniremen on the active list and one venireman on the alternate list were excused for cause, leaving fifty-seven on the list from which active jurors would be selected and eight on the alternate list. Copies of the list of fifty-seven and eight, respectively, were furnished counsel so that they could mark their peremptory strikes.

Defendants exercised their peremptory challenges all within the first twenty-seven veniremen who had not been excused for cause. The government exercised three of its peremptory challenges within the first twenty-nine veniremen who had not been excused for cause; one within the next thirteen from which the jury was chosen; and two within the remaining jurors who were not used. The district court, having been furnished a list of the entire venire with absences, excuses for cause, and peremptory strikes shown thereon, selected as foreman the fifteenth on the list of veniremen present who had neither been stricken nor excused for cause. The foreman appeared on the list below defendants' exercise of their strikes, and the remaining regular jurors were drawn from the list below the placement of the foreman. Thus, of the fifty-seven eligible veniremen, the jury actually picked came from numbers thirty through forty-two.

As soon as the jury was seated and before it was sworn, defendants realized that they had concentrated the use of their peremptory strikes in an area of the list ahead of the portion from which the active jurors were chosen. They immediately objected, asserting "[w]e relied on the Court's statement that it was going to start from the top of the list. We feel as though we have been led astray." The response of the court was that "I didn't say I was going to

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strike starting from the top, if that's the question. I said not necessarily."

There ensued an extended dialogue between the court and counsel--counsel for defendants steadfastly maintaining that they had concentrated their strikes in the portion of the list from which they thought the jury would be chosen based upon their understanding that the jury would be selected from the top. 6 Counsel identified at least two jurors seated in the box as ones they would have stricken had they thought that these veniremen would have been eligible to be chosen. 7 The court required the reporter to read back the court's original statement about how the jury would be drawn, and then the court explained its comments as follows:

So what I said was, exercise most of them from the top, but it wasn't any rigid formula. If it had been a rigid formula, I would have given you 30 and we'd put them in the box and we'd say strike each particular one here and we've ended up, I think, with 64 on the list, and there's no telling where the strikes would be.

The government, in this colloquy, pointed out that it had understood the court correctly and it had spread its strikes throughout the entire list, even though it used half of them at the top. Counsel for defendants rejoined that it was bound to be something more than coincidence that nine defense attorneys understood that they should limit their strikes to the portion of the list counting from the top from which it was mathematically likely that the active jurors would be chosen. The district court formally overruled the objection to the array, delivering the short oral opinion set forth below. 8 The veniremen seated in the box and the alternates were sworn as jurors, and the veniremen remaining in the courtroom were returned to the jury assembly room.

III.

Much of the argument before us is centered on the assertion and counter-assertion that the district court did or did not positively tell counsel that it would select active jurors from the top of the list. We do not find it necessary to resolve this factual question. Certainly we do not think that the district court purposely misled defendants' counsel; defendants' counsel does not even suggest this argument. Similarly, we have no basis in the record to question the bona fides of defendants' counsel. After examining the language used, we do not think that, based upon what the district court said,...

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