Government of Virgin Islands v. Williams

• Decision Date: 28 March 1973
• Docket Number: 72-1389.,No. 72-1374,72-1374
• Citation: 476 F.2d 771
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Micha WILLIAMS, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Angel De JESUS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

476 F.2d 771 (1973)

GOVERNMENT OF the VIRGIN ISLANDS v. Micha WILLIAMS, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Angel De JESUS, Appellant.

Nos. 72-1374, 72-1389.

United States Court of Appeals, Third Circuit.

Argued February 1, 1973.

Decided March 28, 1973.

Edgar D. Ross, Christiansted, St. Croix, V. I., for appellants.

Joel D. Sacks, U. S. Atty., Julio A. Brady, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellees.

Before MARIS, ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

These are appeals by the defendants, Micha Williams, at our docket No. 72-1374, and Angel De Jesus, at our docket No. 72-1389, from judgments entered in the District Court of the Virgin Islands on jury verdicts of guilty in narcotics cases. The defendant Williams was charged with and found guilty of the crime of distributing marihuana in violation of 19 V.I.C. § 604(a); the defendant De Jesus was charged with and found guilty of distributing heroin in violation of 19 V.I.C. § 604(a). In each case, prior to the empanelling of the trial jury, the defendant had moved to quash the array of jurors on the ground that the selection of jurors from that array would deprive him of a fair trial because some of them had served as jurors in prior narcotics cases tried within the previous month in which they had heard the testimony of certain prosecution witnesses, including a government informer, whom the government planned to call to testify at the defendant's trial. In each case the court denied the motion to quash the array. The denial of the motion in each case is asserted as error on these appeals.

We are satisfied that the court did not commit error in this regard. For it has been settled from early times that a challenge to the array of jurors goes only to the form and manner of making up the jury panel and must, therefore, be based on some ground affecting the validity of the whole panel or array of jurors. The disqualification of an individual juror for any cause is not a ground for challenge to the array, since it may later be raised on a challenge to the polls for cause. United States v. Callender, C.C.Va. 1800, F.Cas. No. 14,709; Frazier v. United States, 1949, 335 U.S. 497, 510, 511, 69 S.Ct. 201, 93 L.Ed. 187; United States v. Gordon, 7 Cir. 1958, 253 F.2d 177; State v. Lundgren, 1913, 124 Minn. 162, 144 N. W. 752; Smith v. State, 1954, 219 Miss. 741, 69 So.2d 837; State v. Taylor, 1959, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671, and annotation thereto, 76 A.L.R.2d 678, 679; 47 Am.Jur.2d Jury § 229; 50 C.J.S. Juries § 262.

Here, admittedly, the grounds alleged — prior service in narcotics cases involving the same government witnesses —applied to less than all of the jurors in the array and were, if valid, grounds for later individual challenges. They were, therefore, insufficient to support the defendants' challenges to the array. Those challenges were accordingly rightly denied by the court.

In the case of the defendant De Jesus, however, later challenges for cause were made to the polls in the cases of certain individual jurors. These individual challenges were based on the same grounds, namely, that the challenged jurors must be presumed to be partial as a matter of law and were, therefore, disqualified because they had served as jurors in the trial of other narcotics cases within the preceding month, which had resulted in convictions and at which prosecution witnesses, including a government informer, who were scheduled to testify in De Jesus' case, had testified. De Jesus actually challenged for this cause five of the jurors selected for his case. Three of them had served in three prior narcotics cases and the court, in the exercise of its discretion, sustained his challenges as to them. The other two challenged jurors had served in only two prior cases and as to them De Jesus' challenges were overruled. The jury, which included these two jurors, found De Jesus guilty, as we have seen. On his appeal from his conviction, De Jesus asserts that the court should have held the two jurors to be disqualified for partiality and should have sustained his challenges of them for that cause. The failure of the court to do so he asserts as the second ground of error which, as he contends, entitles him to a new trial. We do not agree.

The federal courts have uniformly held that, absent some evidence of actual partiality, a juror is not disqualified merely because he previously sat in a similar case arising out of a separate and distinct set of circumstances even though the offenses charged in the cases are similar and some of the same prosecution witnesses testify in each case. United States v. Haynes, 2 Cir. 1968, 398 F.2d 980, 984, 985, cert. den. 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124; United States v. Ragland, 2 Cir. 1967, 375 F.2d 471, 476, fn. 2; United States v. Cooper, 3 Cir. 1964, 332 F.2d 790; Casias v. United States, 10 Cir. 1963, 315 F.2d 614, 615, 618, cert. den. 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065; Cwach v. United States, 8 Cir. 1954, 212 F.2d 520, 529; Belvin v. United States, 4 Cir. 1926, 12 F.2d 548, 550; Haussener v. United States, 8 Cir. 1925, 4 F.2d 884, 886, 887; Wilkes v. United States, 6 Cir. 1923, 291 F. 988, 990, cert. den. 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523. See, also, United States v. Stevens, 6 Cir. 1971, 444 F. 2d 630, 631, 632.

In Ward v. Union Barge Line Corporation, 1971, 443 F.2d 565, 570, this court stated "It is clear that jurors are not disqualified merely because they have sat in cases involving similar issues." Casias v. United States, 10 Cir. 1963, 315 F.2d 614, cert. den. 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065, was a case in which an evenly divided court of appeals in banc affirmed the conviction of the defendant by a jury of which most of the members had sat in prior similar cases and in which the same prosecution witnesses, who were called upon to testify in Casias' case, had testified. In that case, Judge Breitenstein, speaking for the three members of the court who favored affirmance, observed that 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." 315 F.2d at 615.

De Jesus relies upon the views of Chief Judge Murrah speaking for the three judges who favored reversal in the Casias case. Those views, however, have never found favor with any federal court, so far as we are aware, nor do we accept them here. Moreover, even Chief Judge Murrah's opinion states that "Not every prospective juror who has sat on another similar case with the same government witnesses is ipso facto debarred from the jury box. His qualifications may very well rest on voir dire. Prejudice should be implied in law only when the accumulative effect of the extrinsic evidence of guilt is clear and convincing." 315 F.2d at 621.

We think that this rule is particularly appropriate for the Virgin Islands in which the number of persons available for jury duty is limited by the comparatively small population of the territory. For there is an ever-increasing likelihood that the district court will in the future be called upon to try even larger numbers of criminal cases arising out of similar circumstances, such as narcotics violations, in which some of the same government witnesses are necessarily involved. It might well, therefore, seriously impede the prompt administration of criminal justice in the territory as well as deny to accused persons the speedy trial to which they are entitled under section 3 of the Revised Organic Act, 48 U.S.C.A. § 1561, if jurors should be conclusively presumed to be partial and, therefore, disqualified from sitting in the trial of a criminal case merely because they had sat in a prior similar case involving some of the same government witnesses and without any regard for their actual states of mind and ability to try the case fairly.

Since a juror who is regularly drawn and selected is presumed, in the absence of some showing to the contrary, to be unbiased and otherwise qualified and competent to serve and since,...