Daniels v. United States

• Decision Date: 11 February 1966
• Docket Number: No. 19324.,19324.
• Citation: 357 F.2d 587,123 US App. DC 127
• Parties: Henry DANIELS, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 127, 357 F.2d 587 (1966)

Henry DANIELS, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 19324.

United States Court of Appeals District of Columbia Circuit.

Argued October 18, 1965.

Decided February 11, 1966.

Petition for Rehearing Denied March 24, 1966.

Mr. William Malone, Denison, Tex. (appointed by this court), for appellant.

Mr. Henry J. Monahan, Asst. U. S. Atty., with whom Messrs. Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and DANAHER and TAMM, Circuit Judges.

Petition for Rehearing En Banc Denied March 24, 1966.

DANAHER, Circuit Judge:

We are unanimous that the delay of some eight weeks between the date of sale and the appellant's arrest was not unreasonable and prejudicial.¹ We find no error respecting appellant's claim on this aspect of the case.

After a trial otherwise free from error, the trial judge denied appellant's motion for a new trial based upon the claim that a juror by her silence at voir dire had deprived him of an opportunity to show her possible bias. It is argued that the ruling was erroneous as a matter of law.

The record shows that the prospective jurors had been sworn. The prosecutor explained that appellant had been charged with violation of the narcotics laws. Respective counsel were introduced and prospective witnesses were identified. The prosecutor then asked:

Is there any reason why you can\'t decide this case fairly and impartially upon the evidence as it will be given by the prospective witnesses during the course of this trial?

(No response.)

Is there any reason that comes to your mind which would cause any of you to hesitate as the triers of the facts in a narcotics case?

(No response.)

I assume by your silence that the answers to these questions are in the negative?

(No response.)

Defense counsel asked if any juror had ever been employed by the police department. One juror answered affirmatively.

Defense counsel continued:

Do any of you have relatives or close friends with the Federal Bureau of Investigation?

(No response.)

Are any of you or do you have close relatives who are connected with the Treasury Department or the Internal Revenue Service?

(No response.)

The silence of one juror at that point predicated the post-conviction motion for a new trial. It does not appear of record² that the juror was so employed at the time in question. However, the transcript of the argument indicates that the judge and both counsel took as established, that the jury list in the possession of counsel listed a certain woman juror and gave her occupation as a check numberer in the Treasury Department. There was no suggestion that she was in any way connected with law enforcement problems in the Narcotics Bureau.

Counsel at the argument on his motion explained that at the trial he had had a law student as an assistant. He had asked the assistant to help him with the jury list. "He never informed me of any connection between this Mrs. Mickens and the Treasury Department. Whether he spotted it or whether it had any significance to him, I do not know."

Defense counsel urged:

"A check of my list indicates there may have been ten jurors who were government employees. I don\'t object to the fact she was a government employee. I don\'t think that was material. I think the mere fact she was employed by the Treasury Department is definitely material. Her agency, the one who pays her, her immediate superiors - - - she is certainly aware that the Bureau of Narcotics is an agency of the Treasury Department. I definitely feel it is material in this case, in a narcotics case."

The trial judge after argument ruled:

"I frankly say to you that that which is the basis of your motion now, namely, that there was a person from the Treasury Department — as I recall, a numberer of checks of a non-enforcement division of the Treasury — was not a basis for a new trial. Actually, there is no concealment of this, and the jury list does in fact recite,³ as I recall, that this juror was a check numberer of the Treasury Department.

"I am going to deny your motion."

We believe the trial judge did not abuse his discretion.⁴ It seems clear that the judge deemed of scant materiality that the particular juror when impaneled before trial had failed to respond to one of many questions asked by counsel on voir dire. In colloquy at the hearing the judge asked:

"Do you think it is significant, peculiar as to its relation, or lack of relation to materiality, the fact that this juror was not in the enforcement branch of the Treasury Department, was a mere check numberer?"

The experienced trial judge, exercising his discretion with respect to a motion for new trial, obviously was of the view that there was no merit of substance to the appellant's post-conviction claim. The judge knew that defense counsel had asked an assistant to try to help him with the jury list which identified the prospective juror and her occupation. The judge knew that counsel claimed that on the very night when the trial had been concluded, he returned to his office and then discovered that this particular juror had been or was employed by the Treasury Department. The prosecutor had commented that if defense counsel had been diligent, so simple a "discovery" could have been made before a one-day trial as it was readily apparent that evening. In that context, defense counsel explained that his mind had been taken up with other matters before trial and thus sought to meet the prosecutor's suggestion that he had not been diligent.

The judge could not have failed to know how often appointed counsel are charged with having rendered ineffective assistance. He observed that he thought counsel had been "diligent" in his client's interest, and the judge pointed to the "alertness" with which the motion for new trial had been filed, just as he had demonstrated during trial that he had been "diligent" in behalf of his client.

But the judge readily could have concluded that what was so easily "discovered" after trial could have been noticed before trial except that counsel had turned the jury list over to his assistant. Taking into account the scant materiality of the defense claim and the absence of challenge before trial, we can not say that there was such an abuse of discretion as to require that the verdict be set aside and that a new trial be granted. Cf. FED.R.CRIM.P. 52(a). Such considerations were epitomized by the Supreme Court, thus:

"Whether or not employment in the Treasury outside the Narcotics Bureau would constitute ground for challenge for `actual bias,\' such employment in the connections disclosed here affecting Moore and Root was not so obvious a disqualification or so inherently prejudicial as a matter of law, in the absence of any challenge to them before trial, as to require the court of its own motion or on petitioner\'s suggestion afterward to set the verdict aside and grant a new trial."⁵

Affirmed.

BAZELON, Chief Judge (dissenting):

Appellant was convicted of violations of the narcotics laws. He first contends that his conviction should be reversed because the two-month and five-day delay between the date of the alleged sale and his arrest was unreasonable and prejudiced his defense. A review of the testimony at trial demonstrates, however, that the Government's case was not "of such slender dimensions" as to require reversal of the conviction. The corroboration of the undercover agent's identification of appellant by another witness to the transaction and the relative shortness of the delay lead to the conclusion that the police conduct in this case was reasonable.¹ Nor was appellant's claim of prejudice as strong as that in Ross v. United States, supra note 1. The risk of conviction of an innocent person — the basic concern of the Narcotics Delay cases² — was no greater here than in the ordinary criminal case.

Appellant's second argument is based on the following occurrence. During the voir dire examination, trial counsel for appellant asked the prospective jurors:

"Are any of you or do you have close relatives who are connected with the Treasury Department or the Internal Revenue Service?"

There was no response to this question. After trial, counsel for appellant discovered that one of the jurors was employed by the Treasury Department, apparently as a check numberer. The trial court, after hearing oral argument, denied appellant's motion for a new trial based on the juror's failure to answer this question.

The function of voir dire is to implement the constitutional guarantee of an impartial jury, a fundamental right of our system of criminal justice. To this end, the trial court is charged with the duty of striking jurors for cause.³ In addition, Congress has provided by rule and statute for peremptory challenges so that the parties may further insure an impartial jury; even when no actual bias appears, a juror may be struck because counsel, with or without reason, distrusts him. But neither judge nor counsel can do his part in securing an impartial jury, if a juror fails to respond truthfully to questions on voir dire. The question then arises under what circumstances is a false or misleading answer so significant as to require a new trial.

The case law has established three basic criteria to guide the trial court in ruling on motions for new trial based on improper responses at voir dire. First, if it is shown that the juror was biased against the losing party, a new trial is always required. No specific prejudice need be proved once it is clear that the constitutional guarantee of an impartial jury was violated.⁴ Second, if it appears that the nondisclosure "resulted from a purposefully incorrect answer or from deliberate concealment," a new trial must be granted.⁵ Since the juror has violated his oath and impaired the statutory right of peremptory challenge, the materiality of the withheld information is...