U.S. v. Mutchler, 76-1914

• Citation: 559 F.2d 955
• Decision Date: 21 September 1977
• Docket Number: No. 76-1914,76-1914
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Richard MUTCHLER, and Mike Byrn Green, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 955

559 F.2d 955

UNITED STATES of America, Plaintiff-Appellee, v. Robert Richard MUTCHLER, and Mike Byrn Green, Defendants-Appellants.

No. 76-1914.

United States Court of Appeals Fifth Circuit.

Sept. 21, 1977.

Gerald A. Woolf, Houston, Tex., for Mutchler.

Dick DeGuerin, Houston, Tex., for Green.

James R. Gough, Jr., U. S. Atty., George A. Kelt, Jr., Asst. U. S. Atty., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GOLDBERG, TUTTLE and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge.

On January 26, 1976, defense counsel and the prosecutor selected a jury to try appellants on charges of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following a trial on February 5-6, 1976, that jury returned guilty verdicts against both appellants. During the nine days between jury selection and trial, nine of the twelve jurors sat on one or more similar drug cases. One of those cases involved the same prosecutor and a government witness that participated in appellants' trial. Because the jurors' interim service robbed defense counsel's prior peremptory challenges of meaning, we must reverse the convictions.

I.

The trial we review today is the second appellants have faced on these charges. A related jury selection problem tainted the earlier proceedings against appellants. This court reversed appellants' original convictions, quoting from United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975):

We think that the district court erred in denying the motions to quash the jury panel without allowing counsel for the defendants any opportunity to develop the nature and extent of the prior jury service of the twenty-seven members of the panel who had had prior jury service in narcotics cases.

United States v. Mutchler, No. 74-1536, 5th Cir., August 7, 1975 (unpublished per curiam). We remanded the case to the United States District Court for the Southern District of Texas, Corpus Christi Division.

The district court set January 26, 1976, as the jury selection date for the retrial. Pursuant to the practice in that division, jury selection for several other cases took place on that date.

The judge conducted the voir dire examination of prospective jurors for appellants' trial. Appellants previously had requested in writing that certain questions be asked at the voir dire. At the conclusion of the judge's examination, in which he had incorporated some of the requested questions, he asked counsel for both sides if they felt he had omitted any important areas of inquiry. Defense counsel raised the subject of prior similar jury service. Subsequent inquiry disclosed that ten prospective jurors had prior jury experience in narcotics cases. Defense counsel eliminated each by peremptory challenge. The court instructed the selected panel to report for trial February 4, 1975, later changed to February 5.

Between selection and trial date nine of those jurors sat on cases similar to that against appellants. Four of the jurors sat on a similar marijuana prosecution February 3. Six, including one of the February 3 jurors, sat on another such case February 4, the day before appellant's trial. ¹ At both the February 4 trial and that of appellants the same prosecutor conducted the government's case; one government witness appeared in both. Appellant's case and the trials conducted on February 3 and February 4 were very similar factually, each involving marijuana discovered during a Border Patrol checkpoint search of a vehicle. Each involved similar jury instructions. Each resulted in guilty verdicts.

On the date the jurors returned to court for appellants' trial, the defendants moved to quash the panel on the basis of this interim jury service. The district judge then made the following inquiry of the jurors collectively:

"Now, some of you on this panel have already recently served on other juries in criminal cases in this court. It is probable that some of the witnesses that you have heard in these prior cases will testify before you in this court in this case. The charge will be the same, as the charges in the prior cases that you have heard. And, as I said, the witnesses may very well be some of the same people, some of the same Government witnesses will be testifying here that have testified previously. This being the situation, I want to ask you if any of you feel that because of your prior jury service recently in other cases of similar kind that you will not be able to serve as fair and impartial jurors in this case and base your verdict on the testimony in this case alone without letting anything in connection with the previous cases interfere in any way with you doing that?

Do any of you feel like the fact that you have heard similar cases, that the witnesses could be the same in this case, being put on by the Government, do you feel that that situation would make it difficult for you to be fair and impartial in this case?

You must, of course, decide the case based on the testimony that you hear from the witness stand in this case alone, and not on anything else that you might have heard in the other cases.

Is there any of you who feel that because of your prior jury service, you would have difficulty or it would affect you in any way in making it hard for you to make your decisions in this case based on the evidence in this case alone?

I take it, then, that you feel like you can sit as fair and impartial jurors, listen to the testimony in this case, disregard what may have gone on in the other cases, and make your decision solely on what you hear here in the courtroom from the witnesses who testify before you on the witness stand here."

Following this inquiry the judge denied the motion to quash.

Appellants' attorneys took exception to the ruling. They maintained that the jury service between selection and trial had deprived them of the effective use of their peremptory challenges. Additionally, they argued that the judge's inquiry had been inadequate to develop any foundation that might support challenges to the jurors for cause. Without success they requested that the judge ask each juror individually whether and to what extent he had made a credibility determination regarding the overlapping prosecution witness.

II.

This court has recognized the importance of peremptory challenges in assuring the selection of that fair and impartial jury to which each criminal defendant is entitled. Toward this end we have emphasized the necessity of an adequate voir dire examination:

Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes.

United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977). We agree with appellants that, after a jury has been struck, but prior to trial, permitting the designates to sit as jurors on similar prosecutions deprives defense counsel of "necessary information" upon which to base an effective exercise of peremptory challenges. On that basis we reverse the convictions.

That appellants were entitled to develop on voir dire some information regarding prospective jurors' prior service in similar cases is well established. See United States v. Ochoa, 543 F.2d 564 (5th Cir. 1976); United States v. Montelongo, 507 F.2d 639 (5th Cir. 1975). Indeed, we reversed the earlier convictions of these appellants precisely because the district court had failed to permit any such inquiry. See United States v. Mutchler, supra.

On remand the district judge properly recognized the significance of the prior service factor. At the voir dire January 26 he made what was at the time an adequate inquiry of the prospective jurors. Following that inquiry defense counsel was able to make an informed exercise of discretion and peremptorily challenged several persons who had served in similar cases.

Permitting the selected jurors to serve in similar cases prior to appellants' trial, however, rendered the prior voir dire and peremptory challenges all but meaningless with respect to the issue of similar jury experience. The effect was as if the court had made the following statement to defense counsel at the voir dire: "The court recognizes the...