U.S. v. Jefferson, 76-1885
| Decision Date | 08 March 1978 |
| Docket Number | No. 76-1885,76-1885 |
| Citation | 569 F.2d 260 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joe Frederick JEFFERSON, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas Tinker (Court-appointed), A. Deniz Tor, Corpus Christi, Tex., for defendant-appellant.
J. A. Canales, U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, RONEY and FAY, Circuit Judges.
At the start of this criminal trial, the district court denied defense counsel's request to question the jurors regarding any jury service they may have had in the seven week interim period since they were first designated to sit on this case. Under the holding in our recent case of United States v. Mutchler, 559 F.2d 955 (5th Cir. 1977), this inquiry should have been made. Whether or not this was reversible error depends upon whether any of the designated jurors had, in fact, sat on a similar case or one involving the same witnesses during the period between selection and trial. We therefore remand the case to the district court for a determination of the controlling facts.
Defendant Joe Frederick Jefferson and his co-defendant, William Glasgow, were arrested at the Falfurrias, Texas, border patrol checkpoint, as they traveled in tandem in two separate automobiles. A search of the vehicles by border patrol agents revealed 370 pounds of marijuana in the trunk of Glasgow's car and some marijuana debris in the vehicle Jefferson was driving. Jefferson and Glasgow were charged with possession with intent to distribute the 370 pounds of marijuana. 21 U.S.C.A. § 841(a)(1); 18 U.S.C.A. § 2.
Jury selection for Jefferson's trial, which was severed from that of Glasgow, began on December 1, 1975. In the voir dire of the entire jury panel, defense counsel did not request that the trial judge examine the prospective jurors regarding prior jury service. Fourteen jurors were selected and instructed to return for trial on January 19, 1976. On that day, defense counsel requested further voir dire of the jurors previously selected regarding any jury service in the seven week interim period between jury selection and the commencement of defendant's trial. The district court denied the request, suggesting that the information sought was readily available in the clerk's office. The jury found defendant guilty. He appealed on the sole ground that the requested inquiry should have been made.
In some districts, repeat jury service is inevitable because of the small population base from which jury panels are selected. There is nothing wrong with this practice. The rule in this Circuit, and indeed in all of the federal courts, is that prior jury service during the same term of court in another criminal case is not, standing alone, a sufficient basis to support a challenge for cause. If counsel can show specific evidence that the prior service biased a particular juror, that juror will be excused for cause. United States v. Riebschlaeger, 528 F.2d 1031, 1032-1033 (5th Cir.) (citing cases from other Circuits), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976).
In two early cases, this Court did not find an abuse of discretion where the district judge had declined to ask potential jurors if they had previously served on a jury, on the ground that such an inquiry was irrelevant. Bellard v. United States, 356 F.2d 437, 439 (5th Cir.), cert. denied, 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Spells v. United States, 263 F.2d 609, 610-612 (5th Cir.), cert. denied, 360 U.S. 920, 79 S.Ct. 1439, 3 L.Ed.2d 1535 (1959). The references to "relevance" indicate that these decisions apparently were predicated on the fact that prior service was not a basis for a challenge for cause.
In United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975), we recognized that prior service is often considered by counsel when exercising peremptory challenges. We therefore held that counsel is entitled to develop on voir dire some information regarding the nature and extent of prospective jurors' prior jury service. We reaffirmed Montelongo in United States v. Ochoa, 543 F.2d 564, 566 (5th Cir. 1976), and also in United States v. Mutchler, supra, 559 F.2d at 957.
In United States v. Mutchler, supra, we were faced for the first time with the issue of interim jury service, that is, jury service during the period between selection as a juror in defendant's trial and the commencement of defendant's trial. In Mutchler, a marijuana case, the defendant had used all ten of his peremptory challenges at voir dire to exclude every prospective juror with prior jury service in narcotics cases. In the nine days between selection and trial, however, nine of the twelve jurors sat on one or more similar drug cases. The district judge asked the jurors collectively whether the interim service had biased them, and after a negative reply, denied the defense motion to quash the panel. We reversed.
The Court reasoned that permitting designated jurors to sit on similar prosecutions in the interim between selection and trial deprives defense counsel's prior peremptory challenges of meaning by depriving "counsel of 'necessary information' upon which to base an effective exercise of peremptory challenges." 559 F.2d at 958. We therefore prohibited interim jury service, holding that "once a jury is struck, the designates cannot serve prior to trial in other cases similar in fact and in legal issue or in cases in which the same government witnesses testify." Id. at 960.
The case sub judice differs somewhat from Mutchler. Counsel for Jefferson did not inquire into prior jury service at voir dire when the jury was selected, nor does it appear from the record that he exercised any peremptory challenges to exclude potential jurors with prior service. Despite Mutchler's rationale based on the right to exercise peremptory challenges, we do not find Jefferson's counsel's failure to exercise those challenges at voir dire to be material in this case.
Mutchler establishes that jurors with interim service in similar cases may be challenged for cause. The defendant there was described as having...
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...recent prior jury service. He asks that United States v. Mutchler, 559 F.2d 955, 959 (5th Cir.1977), discussed in United States v. Jefferson, 569 F.2d 260, 262 (5th Cir.1978), be extended to these facts. We note that the Mutchler opinion was carefully narrowed in a subsequent opinion, 566 F......
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...not the standard, however, when what is being sought is information upon which to base a peremptory challenge. 6 United States v. Jefferson, 569 F.2d 260, 261-62 (5th Cir. 1978); United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), Cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.E......
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...process meaningless as the attorneys could not fully evaluate the jury service of the prospective jurors. (United States v. Jefferson (5th Cir.1978) 569 F.2d 260, 262; United States v. Mutchler (5th Cir.1977) 559 F.2d 955, 958-959, mod. 566 F.2d by the fact that after the jury was selected ......
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