Casias v. United States

• Decision Date: 28 February 1963
• Docket Number: No. 6915.,6915.
• Citation: 315 F.2d 614
• Parties: Steve CASIAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

315 F.2d 614 (1963)

Steve CASIAS, Appellant, v. UNITED STATES of America, Appellee.

No. 6915.

United States Court of Appeals Tenth Circuit.

February 28, 1963.

James W. Heyer, Denver, Colo., for appellant.

Arthur L. Fine, Asst. U. S. Atty., for the D. of Colorado (Lawrence M. Henry, U. S. Atty., for the D. of Colorado, was with him on the brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT, LEWIS, BREITENSTEIN, HILL, and SETH, Circuit Judges.

BREITENSTEIN, Circuit Judge, with whom PICKETT and LEWIS, Circuit Judges, concur.

Appellant-defendant Casias was charged in a one-count indictment with the receipt, concealment, and sale of heroin in violation of 21 U.S.C. § 174, convicted by a jury, and sentenced to 14 years imprisonment. He claims that he was deprived of his Sixth Amendment right to trial by an impartial jury because prior service by members of the jury panel on similar cases, in which the prosecution witnesses in his case appeared and testified, raised a presumption of law that the entire panel was partial and prejudiced.

Prior to the trial of Casias, 8 narcotic cases had been tried by two federal district courts using a jury pool and a guilty verdict returned in each case. Of the 44 members of the panel available at the Casias trial, 43 had sat on one or more of these narcotic cases. Of the 12 jurors selected to try Casias, one had served 3 times in similar cases, 4 had served twice, and 6 had served once. All the jurors except one had heard the testimony of 2 or more of the government witnesses in similar cases and 10 had previously deliberated with one or more of the others in similar cases.

The contention that the entire panel was prejudiced and unfair was asserted by a motion attacking the array, an objection to the impanelling of the jury, a motion for a mistrial, and a motion for a new trial. The defendant exhausted all his peremptory challenges but challenged no individual juror for cause.

The Sixth Amendment to the United States Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * *." This right is neither enlarged nor diminished by the Fifth Amendment provision that a person shall not "be deprived of life, liberty, or property, without due process of law." Although denial of trial by an impartial jury is also the denial of due process,¹ the basic question is whether the jury was impartial.

The Supreme Court said in United States v. Wood, 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 78, that impartiality "is a state of mind" for the ascertainment of which "the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." A trial court exercises a broad discretion "to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality."² Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734, points out that: "The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact."

Over the years, well considered interrogatories have been developed to search a prospective juror's mind for bias and prejudice. In a careful, patient, and painstaking manner the trial judge asked these questions of every person called to the box. No question suggested by defense counsel remained unasked. The prior service of each juror was explored and inquiry was made as to the effect of such service upon the individual's fairness and impartiality. Every member of the jury which tried Casias unequivocally stated that he had no opinion as to the defendant's guilt, that he would give no greater credibility to the testimony of government witnesses, all of whom had testified in similar cases, than to that of others, and that he would be a fair and impartial juror.³

The issue before us is not the adequacy of the voir dire examination. The record contains no proof of actual or individual bias or prejudice. The contention is that the prior service in similar cases presented by identical prosecution witnesses raises a presumption of bias and prejudice as a matter of law which destroys the competence of the jurors collectively.

The issue presented is not new to the courts.⁴ The general rule is that a juror is not disqualified to sit in a criminal case because he previously sat on a similar case arising out of a separate, distinct, and independent transaction.⁵ When the same transaction results in more than one offense, a juror who has convicted in one case arising out of that transaction is not competent to sit in another criminal case wherein another defendant is charged with a similar⁶ or different⁷ offense arising from the transaction.

The particular question here presented is disqualification because of prior service on similar cases which arose out of independent transactions and in which identical witnesses are used by the prosecution to establish similar but disconnected criminal acts. On this question a sharp conflict exists in state decisions⁸ but not in federal decisions.

In Wilkes v. United States, 6 Cir., 291 F. 988, 990, certiorari denied 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523, the facts were fairly analogous to those at bar — similar offenses and identical witnesses. The court rejected the attack on the jury saying:

"Each case involved differing conditions and questions of credibility on the part usually of different defendants, and the credibility of both Taylor and his wife the identical witnesses was required to be weighed not only upon the facts of the individual case, but as between these witnesses and different defendants."

Haussener v. United States, 8 Cir., 4 F.2d 884, 886, was a case under the National Prohibition Act wherein 5 jurors had previously sat in similar cases and convicted on the testimony of identical witnesses. The court affirmed the conviction and said:

"If, when one case has been tried, the entire panel of jurors sitting therein is disqualified from sitting as jurors in every other case of a similar sort, trial courts will be so far impeded in the transaction of their business as to make the enforcement of this act difficult, if not impossible."

The Eighth Circuit reached a similar conclusion in Cwach v. United States, 8 Cir., 212 F.2d 520, 529, a Mann Act case wherein some jurors had previously served in a similar case and heard the testimony of the same government witness. The court said: "The existence of prejudice cannot be presumed." The Wilkes and Haussener decisions were followed by the Fourth Circuit in Belvin v. United States, 4 Cir., 12 F.2d 548, 550, certiorari denied 273 U.S. 706, 47 S.Ct. 98, 71 L.Ed. 850. We are aware of no federal decision holding to the contrary.⁹

The Tenth Circuit has considered objections to jurors because of previous service. In Calderon v. United States, 10 Cir., 269 F.2d 416, 417, the appellant relied on 28 U.S.C. § 1869 which permits a challenge on the ground that a juror has sat as a juror during any term held within the preceding year. In rejecting the contention the court said:

"It the statute fails to contain any language couched in the present tense which fairly construed indicates a congressional purpose to include as a ground of challenge for cause service as a juror in one or more cases previously tried during the then current term of court in which the challenge is asserted."

Harbold v. United States, 10 Cir., 255 F.2d 202, 205, affirmed a conviction in a case over the objection that "the appellant was denied a fair and impartial trial because some of the members of the convicting jury heard two prior narcotic cases in which the same government witnesses testified." Although in that case no challenge was made to the array or to an individual juror, the court observed that: "No prejudice is shown and we perceive no fundamental error."

On the basis of precedent the attack made on the Casias jury must be disallowed. The next question is whether those precedents should be disregarded because of the "totality of facts."¹⁰ Recourse to "totality of facts" is no more than a case by case approach. Any decision based on such an approach lacks both clarity in meaning and facility in application. Clarity is absent because no standards are established and no controlling principles are delineated. Any application of the decision must be on the basis of analogy, an unsatisfactory mode of reasoning because of the subjective impact of varying factual situations. Facility of application is lost because a case by case approach is basically retrospective in character. To say that an individual is deprived of his rights only in those cases where a retrospective appraisal reveals a shocking situation defeats the rationale of the law. Rights exist to insure that justice will be done prospectively.

The hazard of the case by case approach is acute in a situation such as that presented here. The appearance of similar cases on any criminal docket is usual rather than unusual and the reappearance of identical prosecution witnesses is to be expected. These cases may be tax cases with accountants of the Internal Revenue Service as witnesses, mail offenses with postal inspectors as witnesses, interstate transportation cases relying on the testimony of agents of the Federal Bureau of Investigation, narcotic cases based on the testimony of Treasury agents, and other types of offenses, the responsibility for the investigation of which lies in some governmental agency. The occurrence of similar cases in bunches exists and will continue to exist. If the question of the impartiality of a jury is to be determined retrospectively on a case by case basis, no judge will ever know when to draw the line.

The acceptance of the case by case approach does not require the reversal of this conviction. The accused is entitled to a trial by a fair and impartial jury — not by a jury of his choice. No...