U.S. v. Bowles, 78-1032

• Citation: 574 F.2d 970
• Decision Date: 01 May 1978
• Docket Number: No. 78-1032,78-1032
• Parties: UNITED STATES of America, Appellee, v. William E. BOWLES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 970

574 F.2d 970

UNITED STATES of America, Appellee, v. William E. BOWLES, Appellant.

No. 78-1032.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1978.

Decided May 1, 1978.

Thomas M. Bradshaw, Asst. Federal Public Defender, Kansas City, Mo., for appellant.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, ^* District Judge.

MATTHES, Senior Circuit Judge.

William E. Bowles, a black person, was indicted, tried, and found guilty of distributing phencyclidine (commonly known as PCP or "Angel Dust"), ¹ a Schedule III substance, in violation of 21 U.S.C. § 841(a)(1). Imposition of sentence of imprisonment was suspended and defendant was placed on probation for a period of two years conditioned on his participation in a drug rehabilitation program and submission to chemical testing at the discretion of the United States Parole Officer.

On appeal from the judgment, defendant seeks reversal and remand for another trial for: (1) failure of the district court to voir dire the jury panel regarding racial prejudice; (2) failure of the district court to properly instruct the jury; and (3) improper argument of the Assistant United States Attorney regarding the availability to defendant of a government informant.

We hold that the defendant was denied a fair trial because the district court refused to ascertain whether any of the prospective jurors would be influenced in arriving at a verdict because the defendant was a Negro.

Before addressing the critical issue just noted, we briefly review the pertinent facts. The prosecution was bottomed on the purported purchase from the defendant on or about June 18, 1977, of a quantity of Angel Dust by William J. Wilson, a Kansas City, Missouri police officer assigned to the Drug Enforcement Administration. A government informer, a government surveillance agent, and a disinterested party were involved in or witnessed the alleged transaction. There was sharp disagreement as to whether the defendant sold the Angel Dust. The government's only witnesses were DEA Agent Wilson, who testified that he made the purchase, and a chemist who analyzed the controlled substance. Defendant, who had not been previously convicted of any crime, and the disinterested party unequivocally controverted Wilson's testimony. Neither the government surveillance agent nor the government informer testified.

Initially, we review the proceedings which mandate our reversal and remand.

The district court extensively interrogated the jury panel. ² Near the conclusion of the voir dire, the following occurred:

THE COURT: I will ask you, first, Mr. Newman, (Assistant U. S. Attorney) do you have any additional voir dire questions you would like to have asked?

MR. NEWMAN: No, Your Honor.

MR. BRADSHAW (Attorney for Defendant): Only two matters, Your Honor. I forgot to tell the court that Anthony Metaxes will be with me at the counsel table.

THE COURT: I am sure no one knows him.

MR. BRADSHAW: And secondly, I forgot to include among my voir dire questions a question concerning whether the fact that the defendant is a member of the Negro race

THE COURT: I am not going to ask that. I just feel that I I may be unfair to you, but I feel that would put undue emphasis on it. I have told them to weigh their own conscience and I believe if they are racially prejudice(d) they ought to come forth and say it; and if they are, they are not going to respond if I ask them. That is just the way I feel about it. I understand your concern but I feel it is better for you.

In denying appellant's post-trial motions, the court seemed to regard abuse of discretion as the vital, if not the controlling, standard and concluded it had not abused its discretion in refusing to voir dire the panel on the racial issue. Neither did such refusal, as the judge viewed the matter, violate the essential demands of fairness nor result in prejudice to the defendant. The court cited one case to support its position, United States v. Brown, 540 F.2d 364 (8th Cir. 1975). Brown is not controlling in that it involved the scope and manner of voir dire on the impact of pre-trial publicity. The race or national origin of the defendant was not an issue in Brown.

Fed.R.Crim.P. 24(a) provides that 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. Clearly, Rule 24(a) is designed to provide the framework for the procedure to be pursued in the examination of prospective jurors. Under the Rule the district judge is vested with and should exercise his discretion in deciding how the voir dire will be conducted. The courts have, in effect, so held. United States v. Bell, No. 77-1894, 573 F.2d 1040 (8th Cir. April 19, 1978); United States v. Brown, supra at 378; United States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974); Pope v. United States, 372 F.2d 710, 726 (8th Cir. 1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971).

But it by no means follows that where, as here, the defendant is a Negro, the district judge may with impunity refuse to make appropriate inquiry of the jury panel as to possible racial bias, and then justify such refusal by asserting the exercise of discretion. Forty-seven years ago the Supreme Court of the United States, in an opinion authored by Chief Justice Hughes, announced the governing rule. The closing part of the opinion is particularly apropos:

The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.

Aldridge v. United States, 283 U.S. 308, 314-15, 51 S.Ct. 470, 473, 75 L.Ed. 1054 (1931).

The courts of appeals have consistently adhered to the teachings of Aldridge. In United States v. Powers, 482 F.2d 941, 944 (8th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479 (1974), this court proclaimed:

For more than four decades, it has been the rule in federal courts that a trial court must inquire as to possible racial bias of the veniremen when the defendant is a member of a racial minority.

Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). Yet, as recently noted by the Supreme Court in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), neither the supervisory power of the Supreme Court over lower federal courts as exercised in Aldridge nor the Due Process Clause of the Fourteenth Amendment as applied to the state courts in Ham require the trial court "to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner." 409 U.S. at 527, 93 S.Ct. at 830. (emphasis in original).

See also United States v. Bear Runner, supra at 911 ("a searching voir dire is a necessary incident to the right to an impartial jury"); United States v. Booker, 480 F.2d 1310 (7th Cir. 1973) (refusal to interrogate prospective jurors regarding possible racial prejudice against a black defendant not harmless error despite overwhelming evidence of guilt and five black jurors); United States v. Carter, 440 F.2d 1132 (6th Cir. 1971) (failure to inquire regarding potential racial prejudice of prospective jurors in the trial of a Negro defendant upon request of defense counsel was reversible...