United States v. Robinson

• Decision Date: 26 September 1973
• Docket Number: No. 73-1124.,73-1124.
• Parties: UNITED STATES of America v. Jeffrey Lynn ROBINSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

485 F.2d 1157 (1973)

UNITED STATES of America v. Jeffrey Lynn ROBINSON, Appellant.

No. 73-1124.

United States Court of Appeals, Third Circuit.

Argued June 12, 1973.

Decided September 26, 1973.

Edward H. Weis, Defender Assn. of Philadelphia, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., Carmen C. Nasuti, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS, ROSENN, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

Appellant Robinson was indicted on two counts of failing to perform duties required by the Selective Service Act of 1967, 50 App. U.S.C. § 451 et seq. The first count alleges that he failed to keep his local board informed as to his current address; the second charges him with refusing to report for induction on November 6, 1968 and "continuing from day to day thereafter . . ."

A jury returned verdicts of guilty on both counts and post trial motions for judgment of acquittal and for a new trial were denied.

On appeal Robinson contends:

1. With respect to both counts, that a new trial is required because the trial court refused to permit voir dire examination of the jury panel as to racial prejudice; and

2. As to the second count:

a. a judgment of acquittal was required, or

b. that a new trial is required because of errors in the charge to the jury.

THE VOIR DIRE EXAMINATION

Robinson is black as were some of the key witnesses, both for prosecution and defense. Defense counsel asked that the jury panel be asked:

"Would you take into consideration a witnsess\'s race in determining his credibility?"

The trial judge denied the request, saying:

"You have little faith in our system. I\'m not impressed."¹

Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), held that in trials in the federal courts upon a timely request, the judge must permit voir dire examination as to possible racial prejudice. While many would agree with the reaction of the distinguished trial judge that such interrogation in itself is a reflection upon the integrity of the jury panel, nevertheless the Supreme Court has taken a contrary view. Thus, in Aldridge, supra, Chief Justice Hughes wrote:

"The argument is advanced on behalf of the government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." (pages 314-315, 51 S.Ct. page 473)

In United States v. Bamberger, 456 F.2d 1119 (3rd Cir. 1972), this court recognized the Aldridge rule, although leaving to the trial judge wide discretion in determining what particular questions should be asked. No error was found in that case when defense counsel was permitted to ask questions dealing with racial prejudice.² Any doubts as to the mandatory requirements of the Aldridge rule were dispelled by the case of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L. Ed.2d 46 (1973), decided after the opinion of the district court had been handed down. The Supreme Court emphasized that the right to have the judge make inquiry on voir dire as to racial prejudice was one of constitutional dimensions. In that case general questions dealing with bias or prejudice not specifically referring to race were held inadequate to cure the defect, and reversal was ordered.

The government contends that Aldridge and Ham are not controlling in this case because the specific question suggested by counsel dealt with credibility of witnesses based upon their race rather than with prejudice against the defendant as such based upon his race. Aside from the fact that the district court's reaction to the question effectively put an end to any exploration of the area of racial prejudice, we think any such fine distinction between prejudice against witnesses based upon race and prejudice against the defendant based upon race would be pettifogging.

Both sides in a jury trial are entitled to have the credibility of witnesses judged by relevant standards. Both sides — but especially defendants — are entitled to remove for cause prospective jurors who would judge the credibility of witnesses by improper standards. Both sides should be free to exercise peremptory challenges in the light of their informed judgment as to the likely receptivity of the jurors to the testimony which will be presented. Cf. Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The government also urges that if there was error here, it was harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Because at least one of the witnesses against Robinson was black, the government contends that any racial prejudice against black witnesses must have been neutralized. We cannot make such a finding.

Assuming that a given juror believed all black witnesses to be less credible than white witnesses, that prejudice operated in the juror's evaluation of Robinson's testimony. The fact that it may also have operated in the evaluation of the testimony of other witnesses is irrelevant, for Robinson was entitled to have his testimony evaluated free from the taint of such prejudice. There is no doctrine of equality of prejudicial error.

Moreover, a black witness who testified in favor of the government would be clothed with whatever additional mantle of credibility his status as a government witness afforded him, whereas Robinson was a defendant and obviously interested in the outcome. If a juror entertained a prejudice against black witnesses, that prejudice would have had a far greater effect on the testimony of the defendant than upon that of a government witness. Thus, there is no such neutral prejudice as the government suggests.

It was reversible error to decline the request for a voir dire inquiry into the possible racial bias of jurors, and we cannot hold that this ruling was harmless. See also United States v. Booker, 480 F.2d 1310 (7th Cir. 1973).³

THE CHARGE ON DUTY TO REPORT FOR INDUCTION

The Selective Service file established that a letter dated October 22, 1968, ordering Robinson to report for induction on November 6, 1968, was addressed to him at 3519 N. 21st Street, Philadelphia, Pennsylvania (his mother's address), with a copy, c/o Mrs. Pamela J. Robinson, 1134 S. 47th Street, Philadelphia, Pennsylvania.⁴

The envelope addressed to 3519 N. 21st Street was returned to the local board on October 28, 1968, marked, apparently by the Post Office, "Address Unknown", "Moved, left no Address", "Moved, not forwardable". The copy addressed to 1134 S. 47th Street was returned to the local board, which stamped both the letter and the envelope with a date stamp "November 6, 1968". The secretary of the local board testified that the envelope was open when it was returned.

Robinson's mother, who was called by the government, gave her address as 3519 N. 21st Street and said that the defendant had not lived there after he married Pamela Robinson in 1967. The defendant's mother also testified that she did not know his whereabouts but had told him on one occasion that the Selective Service people and the FBI had been looking for him. Her testimony also established that Pamela Robinson had given her the envelope addressed to the defendant at 1134 S. 47th Street and that it was then mailed back to the local board.

The defendant's estranged wife, Pamela, testified that she had received the letter and turned it over to his mother. Pamela said, further, that at some time, not specified in the record, she was contacted by the FBI and was advised that Robinson was delinquent. She saw the defendant on one occasion thereafter, told him that he was under orders to report for induction, and that he was to contact the board and the FBI.

Robinson testified in his own behalf and alleged that he had not received either copy of the October 22, 1968 letter.

The court charged the jury in part as follows:

"The defendant claims that he did not receive any notice for induction. The truth of this claim is for you to determine. In order to find the defendant guilty, however, you must find, beyond a reasonable doubt, that he received the notice to report for induction prior to the time when, according to the notice, he was required to report, which was November 6, 1968 at 7:30 A.M., and that the defendant, willfully and knowingly, failed to report for and submit to induction as ordered. (N.T. 126) . . . The failure to report was willful if — and only if — the defendant was fully aware of his obligation to comply with the order to report for induction, but failed to do so with the intent to avoid his obligation under the Selective Service Act."

Some two hours after the jury retired to deliberate, the foreman sent the following question to the trial judge:

"In reference to the letter for induction delivered to Mrs. Pamela Robinson, addressed to Jeffrey Robinson, does the evidence show if she conveyed this information to her husband, Jeffrey, when she spoke to him and told him the FBI was looking for him?

"Does verbal discussion with his wife constitute legal proof that he did `knowingly\' refuse to perform a duty required of him as stated in Count II of the indictment?"

Counsel were summoned to the courtroom, and the trial court made the following reply, in part:

"If you believe the testimony of his wife that she told him that the FBI was looking for him, and that he was supposed to report for induction, `knowingly\' means done voluntarily and intentionally and not because of mistake, accident, or other innocent reason.

"In effect, if he knew from her that the FBI was looking for him, and that the FBI

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