United States v. Ivan T. Joseph

card, cashing ed a bank check May- while SENTELLE, Before WILLIAMS and none, replied ers that he had that he was ROBINSON, Judges; and Circuit (as out, falsehood) seventeen it turns Judge. Senior Circuit traveling and that he was with his older brother, Joseph. Opinion by for the Court filed . Curley only luggage ap- noted that the Judge Circuit SENTELLE. parently carried bag the two was a tote Opinion concurring part, younger then the hands of the individual. Mayers He judgment asked if he could search concurring filed bag permission. Then, and received believ- Judge Senior ROBINSON. Circuit ing Mayers minor, per- to be a also asked SENTELLE, Judge: Circuit mission from the older brother. replied that this would be all and that Joseph (“Joseph” “appellant”) Ivan T. Curley go bag. could ahead and search the appeals his conviction for offenses related younger bag man handed the to the drugs. possession to the of firearms and officer, placed who it on the floor and un- assigns rulings He on the lawful- as errors zipped it. search, disqualification ness of a of a juror, sufficiency of the evidence and the Curley began As to take items out of the against him. Because we find that bag, Joseph bent over and reached into it. Brennan, no er- Curley’s partner, Sergeant District Court committed reversible then ror, permis- all “If Joseph, we affirm on counts. said to the officer has Therefore, prior to the occurred a seizure him to bag, pleasе allow to search sion an arrest, is correct that it was then it, O.K.?” do Joseph is difficulty for one. The unlawful to do “Do we have Joseph replied, in the District Court’s find no error things I have underwear here? ... occurred. that no seizure conclusion to a more gestured bag.” The officer every con- that not It is well established customer ser- the station —a private area of citizens police officers and between tact traffic. the flow of away from vice alcove — implications. In Fourth Amendment raises Curley that area and moved to All four itself, noted: Terry decision the Court bag. The search to search continued personal all Obviously, not intercourse pistоl and a .38 caliber yielded a loaded and citizens involves policemen between cocaine, measured crack later quantity of Only persons. "seizures” of when immediately The officers grams. at 70.55 or officer, physical of force by means Mayers under arrest. and placed Joseph way re- authority, has in some show of grand jury re a March On liberty may a citizen we strained the of against indictment a five-count turned “seizure” has conclude that occurred. a dismissed, the charge was one two. After n. 16. n. (1) pos charges trial on appellant stood “police can be observed As the Court later con a intent to distribute with session if, ‘only an individual to have seized sаid cocaine, substance, in viola namely trolled surrounding of all the circumstances view 841(a) (b)(l)(A)(iii) and of U.S.C. tion §§ incident, person would a reasonable 2; (2) using carrying a or and 18 U.S.C. § not free to believed that he was have to a during and in relation firearm ” Chesternut, Michigan v. leave.’ of 18 U.S.C. trafficking in violation crime firearm 924(c)(1); (3) of a possession § v. Men (quoting United States (1988) registration certificate a valid without denhall, 6-2311(a); Ann. of D.C.Code violation § (opinion of a for possession of ammunition Stewart, J.)). registration having a valid firearm without “in previously plain made As we have in violation of D.C.Code the firearm test of whether seizure circuit the a upheld The District Court Ann. 6-2361. § per- a reasonable oсcurred is whether has hear separate suppression search crime, have felt son, any innocent of as summarized unfolded ing; the evidence the circumstanc- away under to walk free above; verdicts of returned Turner, 672 F.2d Gomez es.” four counts.1 against appellant on all guilty decisions Supreme Court (D.C.Cir.1982). any apprehension of lost teach that plainly Analysis II. reasonably arise from must freedom A. The Search some show police or from of the duct it is that Consequently, clear authority. two claims makes case. in the not occur did seizure his violated conduct at Union Station police First, he ar rights. suppression Nothing appeared Fourth Amendment “by poliсe contact had that the officers hearing manner revealed gues that the authori- constituted or show of physical his fellow traveler force him means means probable by any cause restrained ty,” without other unlawful seizure an companion. As at the or his liberty appellant suspicion. We reasonable Gomez, re- not no do makes noted the United States outset seizure to constitute a liberty so as or even probable had cause strain claim it citizen, directing by approaching a merely suspicion sufficient it had a reasonable asking him Ohio, question, or him a Terry v. toward stop under justify Here, 141-44. identification. us but is is not before convicted, charge. His conviction count on Mayers also separate appeal, No. subject one, possession to distribute with intent judge the trial colloquy between tell that he could police did not colloquy proceeded as exit, juror. The relevant leave, and did not did not block follows: signs In any other of coercion. evidence

short, not err in your religious District Court did the COURT: Would [sic] sitting judgment had occurred. concluding you that no seizure prejudice somebody? however, argues further Joseph, my- If I have the evidence mr. walls: bag was an of the tote the search go all exactly If I am sure I can self. one, of his Fourth violative unreasonable way. Circumstancial [sic] rights. Again, we cannоt Amendment But if I am sure. wouldn’t. police, agree. It is well established Well, the standard the Court: cause, probable may even in the absence beyond That law is a reasonable doubt. pursuant search a warrantless conduct beyond any That doesn’t mean doubt. v. Busta voluntary consent. Schneckloth upon it has to be a doubt based means monte, reason. L.Ed.2d 854 The standard that we use in criminal (D.C.Cir. Brady, cases, presumption inno- 1988). before the District The evidence charged An cence. individual who is without contradiction Court established presumed crime innocent with a is to be in given had his consent the appellant that you proof are convinced that the until can this consent be said present case. Nor you the case such that find him is can involuntary. respect, In this the to be guilty beyond a reasonable doubt. Brady, in to which present case is similar A reasonable doubt means doubt coercion, no we noted that there was upon reason. A doubt that could based plain voluntary consent when rather you ordinary in make hesitate the course courteously requested and clothes officers your doing something. life in It is not permission conducting before received upon fancy a doubt based or whim. It’s F.2d at 1314-15. luggage search. you a real doubt. Do understand? argues reaching into While MR. WALLS: Yes. bag during the search constituted a the you apply the COURT: Could that stan- consent, the withdrawal of a review of rele dard? supports the District Court’s vant evidence I COUld. voluntary, conclusion that the consent was MR. WALLS: Yes, coercion, under no you acted court: And the fact that are a assume, Joseph did not withdraw consent. He you, man of the cloth and I Almighty free to tell the officers that apparently felt believe God? bag could be embar the contents of MR. YeS. WALLS: rassing, accompanied them to a and then you court: But understand that in place completion for the private more give you I this Court will certain instruc- any If coercion occurred at the search. to the law and that those must tions as point, Joseph has offerеd no evidence be followed this Courtroom. The fact it, assume that which the and we cannot you might have some beliefs that support. Certainly, as in does not you are different those or that be- judge’s Brady, cannot conclude the trial you has lieve that the Good Lord ordered clearly errone finding of consent “to be something I to do different from what ous.” you, you you tell can make sure that are listening to me in this case? Jury B. Selection mr. walls: No. I will listen to the Lord. I will listen to what he Good argues next Appellant supervision. I am under his wants. Judge reversible error committed cause, motion, know. But the Good excusing on his own court: giving not be the instructions followed what Lord will single juror. The exсlusion this case. a rather unusual we must concede was prima give me a mind to In order to establish a facie viola- He will mr. walls: requirement, tion the fair-cross-section pretty to him. I’m not think. I’m close (1) the defendant must show trying eontemptious to but I [sic] group alleged to be excluded is a “dis- make sure I make the want to group community; tinctive” decision. representation group in that the of this Well, you saying what court: juries from which are selected venires is that if there is a conflict what is between not fair and reasonable in relation to the you told and what I’m tell- the Lord has persons number of such in the communi- ing you, prevails. the Lord ty; underrepresentation that this right. mr. walls: That’s systematic is due tо exclusion right. going All I’m to ask court: group jury-selection process. go to to the you back room. case, In the appellant has met Transcript, Appel- June requirements. none of these From the argues persuasively question that the lant us, record we have no definition before juror, by requiring put to choice class, appellant’s vague other than ref- to God and between obedience obedience prospec- erences to the limitation of “the law, accurately did not test his fitness panel people tive those who were juror, certainly many as a to serve religious background without Mr. Walls’ religious persons actually put most to that and beliefs.” Brief of at 26. respond in the same fashion as test defining This falls far short the class in juror appellant in this case. As rea- certainly a “distinctive” fashion. We do sons, law, world, functioning in the real not intend to teach that exclusion of a simply expected put juror cannot be religious permissible. class See State v. However, anyone to that test. else Madison, 265, 240 Md. 213 A.2d 880 compel appellant the that does not reversal (dismissing grand jury indictment where seeks. unconstitutionally required to affirm belief Appellant reasons that he is entitled to a God); State, in Schowgurow v. 240 Md. typified trial on a line of cases new based 121, (1965) (overturning 213 A.2d 475 Texas, v. 311 U.S. 61 S.Ct. Smith by jury Maryland ‍​​‌‌‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌‌‌‌‌​​​‌​​​​​‌‍viction assembled under (1940), Taylor God). 85 L.Ed. 84 v. Lоui requirement of in But the belief siana, 692, 42 present provides nothing compara- record (1975), supporting L.Ed.2d 690 the funda ble to the unconstitutional exclusion from part of the principle mental “that is in jury service of defined classes Smith ‘[i]t juries (race), (gender), tradition the use of as and Thiel v. Taylor established South- justice jury Co., the public instruments of that ern Pacific (1946) (economic body truly representative spe- the com 90 L.Ed. 1181 a of class— ” cifically all who munity.’ Taylor, 419 U.S. at blanket exclusion of work Smith, (quoting daily wages). 311 U.S. at for S.Ct. at 696 165). put, the Otherwise present record dis most “ jury must consist ‘of a cross-section of possibly improper exclusion of closes is the ” community.’ Id. S.Ct. single juror. question governed a This (quоting plurality opinion Apo expressed by reasoning our sister 404, 410, Oregon, v. daca Calhoun, circuit (1972)). L.Ed.2d 184 Cir.1976), (9th F.2d 1094 cert. denied sub is, however, nom., Stephenson the funda- v. United It not at war with 50 L.Ed.2d 781 by this line of U.S. principle mental defended case, argued appellant In an concerns exclu- cases to note that the line motion had judge that the trial on his own potential jurors, of of not indi- sion classes jurors for cause. improperly excused two Supreme As the Court noted viduals. there, noted “a trial Missouri, 99 As the Ninth Circuit Duren U.S. (1979): discretion” selec- judge has broad S.Ct. to an (1954), party is entitled “a 184-85 absent not be reversed tion, will “which may he jurors to which impartial array Id. at clear abuse.” this a challenges. To pеremptory direct determined, has Supreme Court theAs granted But right. entitled as of party is an individual impartiality question to no more.” this, is entitled party credibility, and essentially one of juror “is doubtful con- is of decision While Puff Pat largely one of demeanor.” therefore questions of vitality, it involved tinuing 1025, 1038, 104S.Ct. Yount, 467 U.S. ton settled in scruples, since penalty death Though Illinois, Witherspoon v. the Su petition, a habeas involved Patton (1968), its “the trial Court observed preme reasoning valid remains progeny, its enti questions is such court’s resolution that exclusion general proposition ‘special def tled, appeal, on direct even ” ordinarily provide a single juror does not case While erence.’ A disturbing guilty vеrdict. basis tran a cold on and answer question or other no constitutional defendant has disqualify such appear to script might juror. of a particular to the service ren community as to large portion of Granted, justification judge “if a without or to impossible, panel der a cross-section cause and thus challenge for overrules a religious test on an impose unconstitutional impartial” panel juror not leaves venireman,2 takes but little it service as error to have expect reversible we would there are demonstrate imagination to 185. Obvious- Puff, 211 F.2d at occurred. saying that one ways of many different jurors can improper inclusion ly, such an than man.” It rathеr “obey God impartial right to an the defendant’s violate led the trial juror’s answer may be that the However, single of a jury. exclusion court, wrongly, conclude rightly suggest juror, improper, does even likely God and it juror found part of impartiality on the those any lack of instruc inconsistent offer him judge would has serving. of- in fact High tions, accede to he must and that even a nothing else to demonstrate fered certainly do Authority. Thus while we er panel part of the partiality on the hint of judges make a district not recommend actually argument This affords selected. question posed in putting the practice conclude, given the him no relief. case, cannot we owe, District Court that thе deference we Evidence Sufficiency the C. The of this necessarily in the exclusion erred of juror. single that the finally argues evi- guilty support the was dence insufficient in observed the Ninth Circuit Again, as His against him. basic verdicts rendered “moreover, of the Calhoun, regardless bag contain- contention that because the is excusing single propriety venireman] [a weapon was in ing and loaded the cocaine 542 to reverse.” be inclined would not we rather than companion his his the hands of ob- Circuit 1103. As the Second F.2d at own, not found the the could have 211 Puff, F.2d v. in States served United Peterson, 1818). v. ed. See 167 Thomas State presumed that those who law 2. The common (1926) ("The unqualified Minn. N.W. 764 com- prоfess in God were a belief did not jurors Torasco v. Wat- required witnesses. witnesses] belie[ve] as or in [that to serve mon law God.”); (1960) ("[N]or kins, Stratton, A.2d 223 Md. N.Y. 68 N.E. v. Brink competent, be any person, otherwise shall (1903) ("At but law no one a the common witness, juror, or incompetent a as deemed (Cullen, witness.") competent Christian was belief; provided, religious he account his J., concurring). has been This aban- criterion God, under and that in existence believes the Jackson, See, e.g., 156 Iowa State v. doned. person be held mor- dispensation will such His 610; (1912); Fed.R.Evid. N.W. cf. acts, be rewarded ally his and accountable (C.C.D.C.1807) Bridges, 20 F.Cas. v. Reason this world or in either in punished or therefor Nevertheless, 11,617). (No. abandonment of the cоme.”) (quoting 36 of the Article the world Maryland 488, establish or qualification did not either rev’d, Rights), Declaration believe not in permit requirement III God. (J.H. Coke, First Institute Lord Coke's case, in Viewing the the convict evidence necessary to possession element learning ap jury upon reasonable one, three, and and four him on counts — person in concert pellant acted firearm using carrying or element stage carrying bag every in appellant’s We find to count two. essential officers; with the law enforcement contact all inadequate as to counts. argument purported sufficient control over that he bag and its contents first to consent to for the moment Lаying aside request bag and then to that the its search a firearm “using carrying” or question of to another location before the be moved two, first on we will focus by count raised search; and, bag completion of that the counts common to possession element personal might contained his rea three, argu one, Appellant’s items— and four. he sonably not “was conclude because that he cannot be convicted ment position, knowingly in or had posses drugs firearm were and ” exercise ‘dominion or control’ over the ig himself companion and not sion of contents, incriminating bag and its Law possession fundamental law that nores the son, he 682 F.2d at but that actual, joint as constructive as well can be dominion and exercising fact such control. sole, proved circumstan as and as well Coupling this evidence with the evidence gener as direct evidence. See tial as well drugs that after the found the in the Durant, F.2d ally United States suddenly bag, appellant claimed that he (D.C.Cir.1981); United States Mayers bag found the on an esca had (D.C.Cir.1982); 676 F.2d Raper, lator, say certainly cannot Lawson, States v. United guilty verdict was not a rational one based (D.C.Cir.1982). As we Du noted in the case.3 on the evidence rant: slightly presents a Count two differ unnecessary to “It is show ... 924(c)(1) question. ent 18 U.S.C. outlaws § drug or person had the on his accused “us[ing] carr[ying]” possession reach, enоugh it is his immediate within and in relation to a during firearm position in a knowingly that he ‘was trafficking While the statute crime. right to exercise dominion had the disjunctive, “whoever ... speaks it, directly, or over’ either control firearm,” the indictment uses or carries a sense through Possession others. conjunctive, “Ivan T. spoke shared, it jointly though it is suffices used carried a firearm.” On an ... by circumstantial may be established conjunctive, charged in the indictment evidence.” well as direct support sufficient to when there (quoting at 747 648 F.2d charged, one of the acts conviction on Staten, (D.C.Cir.1978)). not be disturbed for lack conviction will principles of Applying these established sufficiency the evidence. Turner v. the law, “allowing government the 398, 420-21, States, 396 U.S. United inferences that of all reasonable benefit 24 L.Ed.2d 610 evidence,” the as we may drawn from (“when jury guilty returns a verdict a judgment reviewing a motion for a in charging must in several acts the an indictment Musser, 873 acquittal, conjunctive the verdict stands the ... (D.C.Cir.1989), simply respect any with to F.2d evidence is sufficient charged”). conclude that “there is no the Without decid cannot one of acts might fairly evidence in ing mind or not the the upon a reasonable whether which statutory on the present doubt” case is sufficient guilt beyond a reasonable conclude “using,” fits guilty. the evidence well jury’s verdict of element of reject as the so to meaning Davis, statutory “carrying” 683 within the Statеs v. United in in recent decision United as defined our (D.C.Cir.1977). younger represented brother possession the firearms-related counts We note as to all duty performing the of a Mayers his appellant guilty not no more than the found appellant. concluding physical conduit guilty, apparently that the III. (D.C.Cir. Evans, F.2d 891 States Conclusion 1989). (1) the that: recapitulate, we conclude To Union Station conduct at Amtrak’s in Evans we noted While Amendment Joseph’s Fourth did not violate “ 924(c)(1)purposes ‘carrying’ for section and the no seizure rights since there was ‘having con may synonymous not be consent; (2) the was search conducted ” it re neither does possession,’ structive er- no reversible Court cоmmitted wearing bearing a physical quire actual juror; and excluding single a ror in 888 F.2d at 895. person. gun on one’s support to sufficient evidence was ability to present a person “has When Therefore, counts. guilty verdicts on all a fire control over” dominion and exercise is af- judgment of District Court the firearm “within and further has arm firmed. protect him to easy reach and available trafficking] of ongoing [drug during his ROBINSON, Judge, Senior Circuit plainly committed fense,” id., he has rather concurring in concurring part, preclude by intended to Congress the act judgment: may While it the statute. passage sustaining join my colleagues I in which a defen there are cases be that Joseph’s motion District Court’s denial of a firеarm possession dant’s constructive handgun suppress drugs and the to ready his ac sufficiently removed from My analysis and bag. in the tote found support not that the facts would cess score, my on that well earlier concerns carrying the fire that he conclusion however, go beyond the discussion Part ‍​​‌‌‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌‌‌‌‌​​​‌​​​​​‌‍question, at the time arm 11(A) opinion. agree, I also majority of the Here, a ease. present such facts do not incongruent with those ex- for reasons relevant times within was at all defendant 11(B) opinion, pressed in Part of, usually no more than steps few err in dismissing the District Court did not from, the firearm. Of span an arm’s panel Mr. from the the Reverend Walls course, carrying must be done know I jurors. Consequently, prospective write But, here, support the evidence ingly. Id. explain my position on separately to these pos guilty on the ing jury’s verdict of unreservedly matters. I concur two support goes charges likewise session 11(C) opinion, majority confirm- Part that the de circumstantially the conclusion sup- sufficiency of the evidence to ing the firearm was in the that the fendant knew port Joseph’s convictions. carry protec it for the bag, and intended activity. trafficking tion of say the evidence in this cannot

We conceivable, or even strongest case is It is settled “a search conducted that is seen. But strongest we have consent is constitution pursuant to a valid above, equally noted it is well ally permissible.” the test. As we It is estab however, upon lished, “[wjhen prosecutor be “evidence necessary that justify might fairly rely upon consent to seeks which a reasonable mind search, he has the reasonable doubt.” lawfulness of burden guilt beyond a clude was, fact, proving consent Davis, at In this case 683. 2 given.” freely voluntarily and When the is. 624, 630, States, 218, 223, Bustamonte, Zap 66 v. United 328 S.Ct. 412 U.S. v. 1. Schneckloth 1477, 1277, 1280, (1946). 2045, 854, (1973). 2041, 1483 90 L.Ed. L.Ed.2d 860 S.Ct. 36 93 491, 497, 103 Royer, v. 460 U.S. See also Florida 543, 548, 229, Carolina, 1323-1324, 1319, Bumper 391 U.S. L.Ed.2d 236 2. v. North 75 S.Ct. 797, 1788, 1792, Mendenhall, L.Ed.2d 802 (1982); 446 U.S. S.Ct. v. Bustamonte, 1879-1880, 558-559, 1870, supra 544, v. See also Schneckloth note 100 S.Ct. 2045, 222, 1, 497, (1980); at 412 U.S. at 93 S.Ct. at Davis v. United 512-513 L.Ed.2d 1, 1256, 860; 593-594, 582, Royer, supra note 460 U.S. States, Florida v. at 66 S.Ct. 236; 497, 1324, 1261-1262, 1453, (1946); at at United 103 S.Ct. 1460-1461 90 L.Ed. uncontradicted, wholly paved way Joseph countenance officers asked to response bag, his initial was to the District Court’s conclusion. The a search of the But the officers’ clearly of that caliber.3 court the demeanor of observed possibility testimony not foreclose the they did Government’s witnesses as detailed mind, change Joseph incident; manifested hand-reaching it heard them consent, prior of his when and revocation testify bag that after the was moved from bag into the as Officer he thrust his hand heavily-traveled main concourse of Un Curley began to remove its contents. comparative ion Station to the seclusion of area, customer service the search con act, single That without further elucida tinued without furthеr interference Jos tion, ambiguity. Was pregnant was eph.8 The court announced that it credit seeking merely protect to his under Joseph testimony,9 expressly ed the officers’ public exposure, try or was he wear from Joseph found that did not withdraw his ing any to halt further examination of the accept consent to the search.10 We must latter, re bag? If the was officers’ finding clearly unless it was erroneo coercive, and thus destruc sponsive action us,11 plainly it was not. of the consent tive of the voluntariness originally expressed?4 Officer Brennan intruded, Joseph “I that when

testified II that,”5 doing but he did stopped him from explain stopped he him.6 What how examination, On voir dire the Distriсt he said Brennan’s tone of voice when was panel prospective Court directed to the Joseph, you’ve given the officer to inquiries “[i]f variety a series of on a why bag, don’t permission to search subjects, including any whether had assist gestures, it”?7 you let him search What program ed rehabilitation.12 spoken? An any, accompanied the words Several, Walls, including Mr. answered in questions might and similar swers to these affirmative, they after which were light upon equivocal episode. have shed brought individually to bench addi questioning. When Mr. tional Walls was Nonetheless, adequate up- no basis reached, he confirmed the court’s under setting ruling the District Court’s standing pastor that he was of a loсal suppress apparent. nei- motion Since church,13 acknowledged that he companion ther nor his testified helping citizens evidence, with concerned any other the factual ver- offered “work[ed] drugs get presented by the stood folks who are on that want sion Government 1, 13-14, Mendenhall, supra 72. v. note 446 U.S. at 8. Tr. I States 557, 1879, 100 S.Ct. at 64 L.Ed.2d at 511. 9. Tr. I 98. Bustamonte, supra 3. Compare Schneckloth v. 2044, 1, 220, at 412 U.S. at 10. 858-859; Royer, supra note L.Ed.2d at Florida v. 494-495, 1322-1323, 460 U.S. at States, 11. Campbell v. United 234; Mendenhall, L.Ed.2d at United States v. (1963); supra note 446 U.S. at U.S.App.D.C. v. United Jackson 64 L.Ed.2d at 505. 326-327, F.2d 864-865 See also Taylor, Bustamonte, Maine Compare supra 4. Schneckloth ‍​​‌‌‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌‌‌‌‌​​​‌​​​​​‌‍228-229, L.Ed.2d United S.Ct. at 2048- note 2049, 412 U.S. at Thomas, U.S.App.D.C. States 36 L.Ed.2d at 863-864. (1989). Undeniably, voluntariness Suppress Transcript Hearing on Motion tо question search is a of fact. of consent (Tr. I) 70. Bustamonte, supra note Schneckloth v. 2058-2059, 248-249, Since the officer stated that he feared L.Ed.2d at 875. bag, reaching weapon for a 70-71, gentle presum- reaction Tr. I a feeble (Tr. II) Proceedings Transcript 16. of Trial 12. ably priority. was not a 13. Tr. II 73. 7. Tr. I 71.

128 the court make determinations right. sponse was off.”14 “that would impartial juror I have When inquired as prevent “Well, a conscious the court asked in this I want to you from to whether about [sic].” case,” people,” being a fair do what’s “you can whether the re When from what case.26 beliefs ordered The fact you you that are different you to do believe are I tell listening to me you, that the Goоd you something different can might have some you make sure from those or Lord has this judgment on answer was gious [sic] subject. The ed: The exactly If I have the questioning sure prejudiced somebody.” “Yes, I can.” court I can evidence then shifted asked whether his go him from Mr. ^[19] all the myself. If I am to a related Walls stat way. sitting in “reli Cir temptious made its final what make the listen to the Good Lord. give Mr. sion;” him Walls’ me a mind to he [sic]. a bit later wants. [sic] reply I am not decision.”28 inquiry: but want thereto was I am under his think. he added that “He will trying I’m to make sure I I will listen to The court then “No. pretty to be supervi I will close eon- if I I wouldn’t. But cumstantial Well, you saying that if what am what the Lord sure.20 there is a conflict between you telling you, I’m has told and what him that the correct then told The court the Lord “beyond a reasonable standard prevails.29 term.22 doubt,”21 arose. stood23 immediately thereafter “give you certain The court and could Mr. Walls explained apply that informed said that instructions as to meaning him standard,24 he under- problem of the it point from a He declares that the him of “a fair Mr. Walls said “That’s he was cross claims section of the dismissed.31 that the dismissal jury panel that right,” community.”32 Court’s and at this is drawn deprived action that those must be followed the law and ju exclusion of specter “raises the thereupon posed this rors The Government insists class.”33 Courtroom,”25 in his endeavor to falls short question: 29. Tr. II 75. 14. IITr. 73.

15. Tr. II 73. 30. Tr. II 75.

16. Tr. II 73-74. 31. Tr. II 75. 17. Tr. II 74. See, e.g., Duren v. at 26. 32. Brief 664, 668, Missouri, U.S. 99 S.Ct. 18. Tr. II 74. (1979); Taylor v. Louisi- L.Ed.2d 586-587 692, 697-698, ana, 19. Tr. II 74. Texas, (1975); Smith v. L.Ed.2d L.Ed. U.S. Tr. II 74. 20. 21. Tr. II 74. See, ' e.g., Appellant at 27. Duren v. Brief for 33. 74. 22. Tr. II Missouri, supra 586-587; Georgia, Avery 74. 23. Tr. II 561-562, 891, 892-893, (1953); Ballard v. United L.Ed 1247-1248 74. 24. Tr. II theory underly- L.Ed. 185-186 II 75. 25. Tr. ing Joseph’s arguments seems to be count- questions put to Mr. individuals asked the less 26. Tr. II 75. answers, give with the the same Walls would strong religious everybody com- result that Tr. II 75. petit juror would be excluded from mitments Opinion Majority See service. 28. Tr. II 75.

129 particular judge.”39 After With reference to a transgression.34 demonstrate such discussion, colleagues my present considerable fair-cross-section contention Joseph’s contentions agree, dispose ed, rejected the Court notion “that on that basis.35 right representative jury to a includes the by jurors explic to be tried who have I majority, see parties

Unlike inability itly route. The indicated an to follow the law no need to travel that tortuous beyond peradventure record establishes judge.”40 and instructions trial disobey that Mr. Walls would Lockett thus demolishes at the outset he felt that instructions whenever Court’s by thesis advanced and meticulous religious tenets. The they collided with his ly analyzed majority, and dismantled emphatic showing equally record is its complete and furnishes the short but an reason that he was dismissed for Joseph argues.41 all swer to alone.36 stripped Thus of its constitutional over indistinguishable The case at bar seems tones, Joseph’s protest to no more amounts Ohio,37 from Lockett v. potential which than a сlaim that the District erred Court they after said that jurors were excused law, ordinary a matter of and as such it opposition capital punish to reason of their A is doomed to failure. district court has ment, they “take an oath to well could not conducting pro latitude in voir dire wide truely try this case ... and follow [sic] form, ceedings, including the nature and upheld Supreme The Court the law.”38 “ range questions potential jurors,42 put it was ‘unmistak their dismissal because entitled, regard and its action in this “is ably they clear’ that could not be trusted appeal, ‘special defer ‍​​‌‌‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌‌‌‌‌​​​‌​​​​​‌‍ even direct by existing law’ and ‘to follow con ‘abide ”43 pro- the trial If the court’s exclusion of a scientiously the instructions’ of ence.’ 2960, 596, Supreme 39. Appellee Id. at S.Ct. at L.Ed.2d at 34. Brief at 17-20. The 98 57 984 478, 484, Holman, (quoting Boulden v. U.S. Court teaches us that 394 1138, 1142, 433, (1969)). S.Ct. 22 L.Ed.2d 89 439 prima order to establish a facie violation [i]n requirement, the de- of the fair-cross-section 596-597, 2960-2961, 40. Id. U.S. at S.Ct. at 438 98 (1) group alleged fendant must show that the L.Ed.2d at 57 group in the to be excluded is a "distinctive" community; representation that the of this sure, 41. To be jurors Lockett involved exclusion group are select- in venires from which jurors prospective their stance unalterable ed not fair and reasonable in relation to Court, Supreme against penalty. community; the death persons such in the number of however, analysis recognized has that the same underrepresentation is due to that this juror-exclusion types, applies to cases of all group jury- systematic exclusion of the 423, Witt, 412, Wainwright 469 U.S. v. process. selection 841, 844, 852, (1985), 32, Missouri, L.Ed.2d 851 because 83 supra at note 439 U.S. Duren 668, quest conscientiously 364, who will "the is for S.Ct. at 58 L.Ed.2d at 586-587. 99 apply the facts. That is what the law and find Maj.Op. 122-125. 35. impartial consists of." Id. an said, Joseph's 524, 527, Additionally Carolina, 36. to what has been 42. Ham v. South 409 U.S. 93 Walls, 46, objected 848, 850-851, (1973); to dismissal of Mr. counsel 35 L.Ed.2d S.Ct. you asking 408, 413, tending question [Mr. that "the Connors v. United something you 1033, (1895); is sort of like Walls] Unit- S.Ct. 39 L.Ed. Brooks, 267, 271, be so unconscionable.” ask him to do that would U.S.App.D.C. ed States v. judge objection Tr. II 76. The overruled United States v. Cald- 20, 32, explaining well, when the are times U.S.App.D.C. "[t]here give (1974). has to directions and instructions. Court somebody suggesting to me not tolerate could my be carried out.” instructions would not Yount, Patton v. Tr. II 76. (1984). Witt, Wainwright supra See also 425-426, 852-853, 37. U.S. L.Ed.2d 105 S.Ct. at 852-853; Corp. v. Consumers Union Bose U.S., Inc., 2959-2960, 595-596, And see Irvin Dowd, L.Ed.2d at 983-985. the two. a conflict between by the to him to be “fairly supported juror is spective plainly right in dis- is record,” upset.44 That The District Court it will not be unique position juror. missing prospective him as a because trial courts credibility of and to assess the demeanor petit jury ser under consideration

those

vice, safeguard the accused’s thus to impartial to an Amendment Sixth area, discretion in this

jury.45 The court’s course, The court not unbounded. failing investigate the

may err either bias,46 potential strength existence hand, or, by disqualifying a on the other GEORGIA-PACIFIC impression or juror holding “some potential CORPORATION, Petitioner, the case” but opinion as to the merits of opinion or “lay impression aside his able to LABOR RELATIONS NATIONAL on the evidence and render a verdict based BOARD, Respondent, However, trial in court.”47 presented separating the difficult task of courts have 7, Long- International Local Union No. the facts impartially find those who will shoremen’s Warehousemen’s conscientiously apply the law Union, Intervenor. eases, not. In close where those who will that a clearly indicate the record does No. 88-1751. category one particular juror falls within Appeals, States Court of United other, def yield must considerable Circuit. Columbia impres judge’s “definite erence to the trial un prospective juror would be sion that a 8, Dec. 1989. Argued impartially apply the faithfully and able to 29, Dec. Decided law.”48 us, however, is not The situation before require reliance on the

nearly so close as to Mr. left evaluation. Walls

District Court’s religion over that he would choose

no doubt appear should

the court’s instructions States, 751, (1961) (error questions); v. United must be mani- factual Brown L.Ed.2d 543, 203, 204-205, U.S.App.D.C. fest). 544- ("when important testimony is antici witnesses, categories pated from certain Wainwright, 477 U.S. 44. Darden v. status is such that whose official or semi-official 144, more, less, reasonably ‍​​‌‌‌‌‌​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌​‌​‌‌‌​​​‌‌‌‌‌​​​‌​​​​​‌‍juror might in be testimony, query as to their clined to credit point judge’s function at this 45. "The trial juror inclination would have such an whether a later on in is not unlike that of trial requested”). given ... should reach conclusiоns as to the trial. Both must by relying credibility impartiality and on their 43, Dowd, supra note 366 U.S. at 47. Irvin v. demeanor evidence and re- own evaluation of 1642-1643, 722-723, 6 L.Ed.2d at S.Ct. at Rosales-Lopez sponses questions." v. United by pretrial publici- (impression created 755-756 States, Wainwright, supra ty). 44, note And see Darden L.Ed.2d 477 U.S. at capital punishment); against (opinion at 155 Murray, 46. Turner v. Reynolds v. United (1985) (in capital case where 90 L.Ed.2d 27 (court wheth- must assess L.Ed. black); the accused is Ristai victim is white and strength opinion formed are er “nature and Ross, no v. presump- necessarily to raise the such as in law (1976) (trial is inextrica where race L.Ed.2d 258 partiality”). tion of jury); bly up Ham v. with issues for the bound Witt, Carolina, Wainwright supra note U.S. at supra South 852-853, 425-426, 850-851, L.Ed.2d at (possible at 50 S.Ct. at prejudice may racial distort consideration

Case Details

Case Name: United States v. Ivan T. Joseph

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 29, 1989

Citation: 892 F.2d 118

Docket Number: 88-3140

Court Abbreviation: D.C. Cir.