U.S. v. Floyd

• Decision Date: 13 May 1976
• Docket Number: 74-1011,Nos. 74-1010,s. 74-1010
• Citation: 535 F.2d 1299,175 U.S.App.D.C. 337
• Parties: UNITED STATES of America v. Percy FLOYD, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1299

535 F.2d 1299

175 U.S.App.D.C. 337

UNITED STATES of America v. Percy FLOYD, Appellant

Nos. 74-1010, 74-1011.

United States Court of Appeals, District of Columbia Circuit.

May 13, 1976.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

Appellant's Suggestion that this Court Rehear the Case En Banc, 522 F.2d 1310, 173 U.S.App.D.C. 95, having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having these cases reheard en banc, it is

ORDERED by the Court, en banc, that the aforesaid suggestion that this Court rehearing the case en banc, treated as a suggestion to rehear both appeal Nos. 74-1010 and 74-1011 en banc, is denied.

Statement of Chief Judge BAZELON with whom Circuit Judge ROBINSON joins, as to why he would grant rehearing en banc in No. 74-1011.

Judge Justice's excellent dissent persuasively sets forth the reasons why the division's opinion is unsupportable on either the law or the facts. See United States v. Diggs, 173 U.S.App.D.C. 95, 522 F.2d 1310, 1324-32 (1975). With respect to the trial judge's refusal to permit appellant to voir dire prospective jurors concerning racial prejudice, the division has misstated the applicable law as developed by the Supreme Court and this court. And with respect to the constitutionality of the police officers' initial stop or arrest, the division has misleadingly stated the facts. ¹ On both counts I believe rehearing is warranted. While I have nothing to add to Judge Justice's treatment of the Fourth Amendment issue, developments subsequent to the division's decision require further comment placing the division's aberrational holding on the voir dire issue in proper perspective.

In 1930 this court held that trial judges were not required to permit Negro defendants to ask prospective jurors whether they entertained racial prejudice that would disable them from rendering an impartial verdict. ² In Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), that holding was reversed by a nearly unanimous Supreme Court. Writing for the Court, Chief Justice Hughes stated that "the essential demands of fairness" require posing the question, id. at 310, 51 S.Ct. at 471, 75 L.Ed. at 1055, since even in the District of Columbia, the "possibility of prejudice" was not "so remote as to justify the risk in forbidding the inquiry." Id. at 314, 51 S.Ct. at 473, 75 L.Ed. at 1058.

Thirty-five years later, in King v. United States, 124 U.S.App.D.C. 138, 362 F.2d 968 (1968), we were invited to hold that Aldridge required that defendants be permitted to inquire into racial prejudice only in the aggravating facts of that case, in which a Negro defendant was tried by a white judge and jury and was sentenced to death for murdering a white police officer. We refused that invitation. Instead, relying on a First Circuit decision which had considered the same question in the context of a conviction for making false statements to a government agency, ³ we held that the Aldridge rule "is not limited to capital crimes or even to crimes of violence." Id. at 969. As we later observed in United States v. Robinson, 154 U.S.App.D.C. 265, 475 F.2d 376, 381 (1973), racial prejudice is one of those "recognized classes" of prejudice for which "there is a constant need for a searching voir dire examination." King, in turn, became a leading case, and was followed, implicitly or explicitly, in five other circuits, regardless of the nature of the crime, the race of the victim, or the racial composition of the jury. ⁴

The division's decision here rests on the proposition that race-prejudice questions need be asked only when there are some undefined special circumstances warranting such an inquiry. ⁵ That proposition blatantly misstates the principle of King and of the cases that have followed it, as the division itself implicitly acknowledged, 522 F.2d at 1318 n.15. The division rationalized its cavalier treatment of King by quoting a single sentence in the Supreme Court's subsequent decision in Hamling v. United States, 418 U.S. 87, 140, 94 S.Ct. 2887, 2918, 41 L.Ed.2d 590, 633 (1974). ⁶ The sentence in question, however, is vague and irrelevant dictum, which at most indicates that due process requires that race-prejudice questions be asked only in "certain situations" a rather broad phrase and not that the supervisory power requirements are so "limited." The division did not even attempt to rationalize its conclusion that King involving a single Negro defendant convicted of simple assault of a single white victim presented special circumstances warranting race-prejudice voir dire, but that this case involving three Negro defendants charged with armed robbery of a Georgetown bank and assault with a deadly weapon of five persons, including the branch manager and head teller did not.

It was to "maintain uniformity of (our) decisions," and because I believed that the question of whether to overrule King was of "exceptional importance," F.R.A.P. 35, that I originally voted to grant rehearing en banc in this case. I did so realizing that "there is a limit to the number of cases we can take en banc," ⁷ but also persuaded that the burden of rehearing here would not be great, since the teaching of King was so clear and clearly correct. I believed, and still believe, that the fair administration of criminal justice demanded that the division's decision be overruled, and that the Rule of Law and principled decisionmaking demanded that this appellant receive the benefit of the King decision.

Shortly after my vote was cast, the Supreme Court issued its decision in Ristaino v. Ross, --- U.S. ----, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). Ristaino was an appeal from a First Circuit decision granting a writ of habeas corpus to a black prisoner convicted in a state court of armed robbery and assault and battery by means of a dangerous weapon with intent to murder a white security guard. The First Circuit had held that the defendant had been denied due process by the state court judge's failure to question the veniremen concerning racial prejudice. ⁸ The Supreme Court reversed, holding that the Constitution requires race-prejudice questions only when "there was a constitutionally significant likelihood that, absent (such) questioning . . . the jurors would not be as 'indifferent as (they stand) unsworne.' Co.Litt. 155b." --- U.S. at ----, 96 S.Ct. at 1021, 47 L.Ed.2d at 264. The Court found that the victim's race was insufficient to create such a likelihood, and it noted that the added fact that the victim was a security officer had not been relied upon by trial counsel as an "aggravating racial factor." Id. at ----, 96 S.Ct. at 1022, 47 L.Ed.2d at 265.

Although eschewing a constitutional rule, the Ristaino Court was careful to point out that "the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant." --- U.S. at ----, 96 S.Ct. at 1022 n.9, 47 L.Ed.2d at 265. Indeed the Court stated that "(u)nder our supervisory power we would have required as much of a federal court faced with the circumstances here." Id. The Court then cited Aldridge and decisions from two courts of appeals: United States v. Booker, 480 F.2d 1310 (7th Cir. 1973), and United States v. Walker, 491 F.2d 236 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974). In Booker the Seventh Circuit had held, in an opinion by Judge (now Justice) Stevens, that the failure to voir dire veniremen on race prejudice was error even when the alleged crime, a narcotics sale, was non-assaultive, and the jury included five blacks. In contrast, Walker holds that the failure to pose race-prejudice questions in a forgery case, while not the "better practice," was not an "abuse of discretion" where the Government's two chief witnesses and three of the jurors were black; there were no racial overtones; and counsel had failed to call Judge Weigel's attention to the fact that the judge had omitted the proposed race-prejudice question in conducting the voir dire.

Because Ristaino involved a state court conviction, it did not provide the Court with an opportunity to define in detail the contours of the supervisory power rule. Ristaino strongly suggests, however, that at the very least we are free, perhaps in the exercise of our supervisory powers, ⁹ to continue to adhere to the King-Booker rule as to when race-prejudice questions must be asked. Ristaino also suggests that we are free to apply or not apply the harmless error doctrine to failures to question jurors about their racial attitudes. ¹⁰ Thus, in my view, the questions that warranted en banc consideration before Ristaino remain intact: (1) should King be overruled and if so what rule should replace it; (2) should the harmless error doctrine be applied to cases of this sort, and if so under what circumstances? By distinguishing constitutional and nonconstitutional requirements, Ristaino only serves to dissolve the division's sole reason for discarding King, namely that Hamling and Ham due process cases require us to do so.

If Ristaino in some respects leaves the reasons for rehearing unaffected, in other respects it strengthens them. After Ristaino, we at least owe this appellant a statement of the reasons for our decision which acknowledges rather than ignores the difference between supervisory power and constitutional requirements, and admits rather than denies that federal judges are required to pose race-prejudice questions absent the special circumstances of Aldridge. Moreover, we owe the appellant a principled explanation of why a person tried in federal court for committing an assault and battery by means of a deadly weapon with intent to kill a security guard would be entitled to voir dire prospective jurors concerning...