U.S. v. Ricks

• Decision Date: 02 October 1986
• Docket Number: Nos. 83-5060,s. 83-5060
• Parties: UNITED STATES of America, Appellee, v. Thomas Calvin RICKS, a/k/a Joe Dancer, Appellant. UNITED STATES of America, Appellee, v. James A. CARTER, Appellant. UNITED STATES of America, Appellee, v. Marcell MOFFATT, a/k/a Black Barney, Appellant. UNITED STATES of America, Appellee, v. Stanley RODGERS, Appellant. UNITED STATES of America, Appellee, v. Kerney William LINDSEY, a/k/a Wilco, Appellant. UNITED STATES of America, Appellee, v. Beatrice ROBERTS, Appellant. UNITED STATES of America, Appellee, v. Maurice David KING, a/k/a Peanut, Appellant. (L), 83-5061 to 83-5064, 83-5066 and 83-5081.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 731

802 F.2d 731

55 USLW 2261

UNITED STATES of America, Appellee, v. Thomas Calvin RICKS, a/k/a Joe Dancer, Appellant.

UNITED STATES of America, Appellee, v. James A. CARTER, Appellant.

UNITED STATES of America, Appellee, v. Marcell MOFFATT, a/k/a Black Barney, Appellant.

UNITED STATES of America, Appellee, v. Stanley RODGERS, Appellant.

UNITED STATES of America, Appellee, v. Kerney William LINDSEY, a/k/a Wilco, Appellant.

UNITED STATES of America, Appellee, v. Beatrice ROBERTS, Appellant.

UNITED STATES of America, Appellee, v. Maurice David KING, a/k/a Peanut, Appellant.

Nos. 83-5060(L), 83-5061 to 83-5064, 83-5066 and 83-5081.

United States Court of Appeals, Fourth Circuit.

Argued April 8, 1986.

Decided Oct. 2, 1986.

Ransom J. Davis (H. Russell Smouse, Harry J. Matz, Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, Md., on brief) for appellant James A. Carter.

Stuart R. Blatt, Baltimore, Md., for appellant Beatrice Roberts.

W. Gary Kohlman (Kohlman & Fitch, Kenneth Michael Robinson, Washington, D.C., on brief) for appellant Maurice David King.

James B. Moorhead, Asst. U.S. Atty. (Breckinridge L. Willcox, J. Frederick Motz, U.S. Attys., Baltimore, Md., Stephen Bailey, Second Year Law Student, on brief) for appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, and WILKINSON, Circuit Judges, sitting in banc.

HARRISON L. WINTER, Chief Judge:

These appeals have been reheard in banc. We conclude that the judgments of conviction for all defendants must be reversed and they must be granted new trials.

I.

The facts are set forth in the panel opinions and need not be repeated here. United States v. Ricks, 776 F.2d 455 (4 Cir.1985). The panel majority ruled that the district court committed reversible error when it failed, albeit inadvertently, to give defense counsel unequivocal advice as to the section of the list of jurors from which the jury would be selected. The failure, it concluded, resulted in an impermissible dilution of defendants' statutory right to peremptory challenges of prospective jurors. We too hold, for the reasons set forth by the majority and the additional reasons set forth below, that there was an impermissible dilution of defendants' statutory right to peremptory challenges of prospective jurors necessitating reversal of their convictions and the grant of a new trial.

Because the panel majority granted the defendants a new trial, it expressed its view on a number of issues which were likely to arise on retrial and it withheld decision on others. As to those which were decided, we too make the same rulings for the reasons advanced by the majority. We also decide one issue reserved by the majority, and hold that King may be convicted of a violation of 21 U.S.C. Sec. 848 upon proof of two violations of 21 U.S.C. Sec. 841 plus proof of a violation of 21 U.S.C. Sec. 846. Stated otherwise, we rule that a conviction of a conspiracy under 21 U.S.C. Sec. 846 may be a predicate offense for conviction of violating 18 U.S.C. Sec. 848.

II.

The majority panel opinion expressed two thoughts which we think are an alternate basis of decision. First, in footnote 4 it was said "that an excessively large venire could have the ... effect [of diluting the right to peremptory challenges] even if the procedure were clearly explained. The usual practice with a struck jury system, which we encourage, is for the list to contain only the approximate number of necessary potential jurors." Next, in footnote 9, it is suggested that "absent a local rule of court or established local practice about how a jury will be selected and how peremptory strikes should be exercised with respect to a large venire, there is a duty on the part of the court to give clear, unambiguous instructions to counsel about the procedure to be followed and that a failure on the part of the court in this respect is plain error." Closer study of the authorities sustaining the validity of a "struck jury" system leads us to hold that it is essential to the validity of a jury chosen by the "struck jury" system that the list given to counsel contain only the approximate number of necessary potential jurors, or, if a larger list is given, that the court give clear, unambiguous instructions about the portion of the list, containing not more than the approximate number of necessary potential jurors, from which the jury will be selected.

A.

The right to peremptory challenges has been characterized as "one of the most important of the rights secured to the accused." Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). Although not a constitutional right, "[t]he persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury." Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). Most recently, in a case limiting the use of peremptories to exclude veniremen on the basis of race, the Supreme Court again acknowledged the historic function of peremptory challenges "as one means of assuring the selection of a qualified and unbiased jury." Batson v. Kentucky, --- U.S. ---, ---, 106 S.Ct. 1712, 1720, 90 L.Ed.2d 69 (1986).

The method for exercising peremptory challenges depends upon the method of jury selection. In the "jury box" system of jury selection, the parties exercise their challenges against jurors already seated in the box, and who will remain on the jury unless challenged. This case, however, concerns the use of the "struck jury" method of jury selection where the trial judge tenders to each party a list of qualified veniremen and each side exercises its peremptories against the names on the list. If, after each side exercises its strikes, there remains more than twelve persons on the list, the trial judge must decide which twelve will constitute the jury. ¹

It is self-evident that the right to a given number of peremptory challenges becomes less and less effective as the list of potential jurors against which the challenges must be exercised grows larger than the approximate number of veniremen needed to comprise a jury. When the "jury box" method of selection is used, a party knows that each time he strikes a venireman sitting in the box, he is assured of removing someone from the panel who otherwise would serve as a juror. But when the trial court submits a struck jury list on which more than twelve names will remain after each side exercises its peremptory strikes and the judge then selects the jury in a manner not previously disclosed, the defendant faces the prospect--the actuality in the instant case--of wasting strikes on veniremen the trial judge ultimately chooses to exclude from the jury.

The effect of a larger than necessary "struck jury" list is, thus, to dilute the defendant's right to exclude potential jurors of whom he disapproves, but for whom he lacks a basis for an objection for cause. The Supreme Court has stated: "The denial or impairment of the right [to peremptory challenges] is reversible error without a showing of prejudice [citations omitted]. 'For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.' " Swain, supra, 380 U.S. at 219, 85 S.Ct. at 835 (quoting Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892)). See also Pointer, supra, 151 U.S. at 408, 14 S.Ct. at 414 ("Any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.") We think it clear that the dilution that results from the court submitting an overly-large struck jury list without limiting instructions hinders the full, unrestricted exercise of peremptory challenges and violates an essential part of the right to trial by jury. We reach this conclusion from our review of the history of the struck jury system.

B.

Swain v. Alabama, 380 U.S. 202, 217, 85 S.Ct. 824, 834, 13 L.Ed.2d 759 (1965), noted that "[t]he system of struck juries ... has its roots in ancient common-law heritage." In a footnote the Court describes how the jury was selected: "Historically 48 names would be selected from a special jury list and each side would alternately strike 12 names, the remaining 24 being summoned for the case." Id. at 217, 85 S.Ct. at 834 n. 21. The Court there cites to Blackstone who explains that this practice of selecting "special juries" was "originally introduced in trials at bar when the causes were of too great nicety for the discussion of ordinary freeholders, or where the sheriff was suspected of partiality." 3 Blackstone's Commentaries 357 (1897) (emphasis in original). Common juries were selected by the "jury box" method. Id. at 358.

The common-law method might seem to support the practice of the district court in the instant case, because after each side exercised twelve peremptory strikes, the remaining number (24) was twice as large as necessary for the jury. But at common law, the veniremen were summoned by the sheriff after the parties exercised their strikes against the list. Experience demonstrated that twenty-four veniremen were usually necessary to ensure that at least twelve persons appeared. J. Bentham, The Elements of the Art of Packing as Applied to Special Juries 31 (1821); see also, Nesmith v. Atlantic Ins. Co., 8 Abb.Pr. 423, 424 (N.Y.1859). When less than twelve persons appeared, the court would simply complete the jury with "persons present in court." 3 Blackstone's Commentaries 365 (1897). Thus there was reason to require that peremptories be exercised against an excessively large list. By contrast, today there is not the same need to call an excessive number of veniremen because there is better attendance and statistically the number of excuses for cause can be determined with great accuracy. As a result, a...