U.S. v. Franklin, 81-2069

Decision Date04 March 1983
Docket NumberNo. 81-2069,81-2069
Citation700 F.2d 1241
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Elmer Eugene FRANKLIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Thomas H. Alford, Edmondson Law Offices, Muskogee, Okl., for defendant-appellant.

Mark F. Green, Asst. U.S. Atty., Muskogee, Okl. (Betty Outhier Williams, U.S. Atty., E.D. Oklahoma, Muskogee, Okl., with him on the brief), for plaintiff-appellee.

Before DOYLE and McKAY, Circuit Judges, and TEMPLAR, District Judge *.

McKAY, Circuit Judge.

Elmer Franklin appeals his conviction of violating 18 U.S.C.App. Sec. 1202(a) (1976), which prohibits anyone who has been convicted of a crime punishable by more than one year's imprisonment from possessing firearms that have been transported in interstate commerce. Mr. Franklin claims that juries for at least two other criminal trials were selected on the same day as his, and that some of the jurors who convicted him might have been members of other juries that heard similar cases after their selection for Mr. Franklin's case, but before his trial. He argues that the trial court erred by failing to conduct a supplemental voir dire on this issue when Mr. Franklin raised it just before trial. 1

Instead of selecting a separate jury at the beginning of each case, some federal district courts hold a single proceeding in which they select a number of juries for future cases from a large group of veniremen. This procedure conserves judicial resources. It also creates the possibility, however, of juror bias arising from service in a number of similar cases. In particular, in the interim between jury selection and trial in one case, a juror might serve in another criminal case involving similar legal or factual issues or common government witnesses. A juror who has sat on a similar criminal case before being selected for the case in which he is challenged can be dismissed for cause only if shown to be biased. See United States v. Mobley, 656 F.2d 988, 989 (5th Cir.1981); Casias v. United States, 315 F.2d 614 (10th Cir.1963), cert. denied, 374 U.S. 845, 83 S.Ct. 1901, 10 L.Ed.2d 1065 (1963). However, interim jury service is uniquely pernicious because it is "more proximate in time and so creates a heightened danger of prejudice, which is especially great when the offenses are similar or the witnesses the same...." United States v. Jefferson, 569 F.2d 260, 262 (5th Cir.1978). Moreover, a defendant cannot foresee at the time of jury selection which jurors might perform interim service. The selection of juries for many cases long before trial thus prevents the defendant's meaningful exercise of his peremptory challenges by depriving him of necessary information on which to base them. 2 United States v. Mutchler, 559 F.2d 955, 959 (5th Cir.1977). Thus, the Fifth Circuit infers bias as a matter of law when a juror has performed interim service on a similar case, and has held that the juror can be dismissed for cause. See Mobley, 656 F.2d at 989. Moreover, a defendant need not keep track of each juror's service in order to assert this right; if he objects just before trial to possible interim service by some of the jurors, the trial court must allow a supplemental voir dire to determine whether the jury should be quashed. United States v. Capua, 656 F.2d 1033, 1036 (5th Cir.1981).

We agree with the Fifth Circuit's approach. The trial court may use the method of jury selection employed below, but it must also provide safeguards to ensure that criminal defendants' rights to impartial juries and peremptory challenges are not compromised for the sake of administrative efficiency. We therefore conclude that if a court selects juries for more than one case at a time, and if a defendant timely objects 3 to jurors' service on similar cases...

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13 cases
  • U.S. v. Dion
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 20, 1985
    ...(8th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1415, 39 L.Ed.2d 472 (1974), unless actual bias is shown. United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir.1983). The cases cited by Primeaux are inapposite. In Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 102......
  • State v. Dorsey
    • United States
    • Louisiana Supreme Court
    • October 21, 2011
    ...by a juror on a jury which has tried a similar case, alone, is not sufficient to sustain a challenge for cause. United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir.1983); United States v. Mobley, 656 F.2d 988, 989 (5th Cir.1981); United States v. Jefferson, 569 F.2d 260, 261 (5th Cir.1......
  • Kirkland v. State
    • United States
    • Texas Court of Appeals
    • March 28, 1990
    ...prior service actually biased the particular juror. United States v. Brown, 699 F.2d 704 (5th Cir.1983); see also United States v. Franklin, 700 F.2d 1241 (10th Cir.1983). Thus, counsel has the right to develop information on voir dire examination about a venireman's prior service as a juro......
  • U.S. v. Iribe-Perez
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 28, 1997
    ...factual issues or the same government witnesses may be dismissed for cause because of the high risk of bias. See United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir.1983). In the light of this case law, the district court erred in selecting the jury from a panel comprised of individual......
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