United States v. Jermaine Boney, United States of America v. Donald A. Holloman

America STATES UNITED BONEY, Appellant.

Jermaine America STATES

UNITED HOLLOMAN, Appellant. A.

Donald 90-3270, 90-3281.

Nos. Appeals, States Court Circuit.

District Columbia 6, 1992.

Argued Feb. 13, 1992. Oct.

Decided by this (appointed McDowell

Barbara Anklam, E. James court), whom with brief, for D.C., Washington, was Tim- Boney in 90-3270. appellant Jermaine D.C., also en- Washington, Dyk, othy B. appellant. appearance, for tered Alexandria, Asiner, (appointed Va. Mona Hol- court), appellant Donald A. by this in 90-3281. loman Atty., Peters-Hamlin, Asst. U.S. Kristan Atty., Stephens, U.S. Jay B. whom Jr., Tourish, J. and Thomas R. John Fisher D.C., Washington, Attys., Asst. brief, appellee. SILBERMAN, HENDERSON Before: RANDOLPH, Judges. Circuit Circuit filed for the Court Opinion Judge SILBERMAN. concurring part dissenting

Opinion Judge RANDOLPH. part Circuit filed bag Boney plastic pickup throw a under the SILBERMAN, Judge: Circuit bag, officer truck. Another retrieved the Jer- Donald Holloman and Appellants grams which contained 12.72 of cocaine trafficking drug Boney appeal their maine purity. Boney and Marks base of 69% under Both were convicted convictions. were arrested the scene of the sale. cocaine, 841(a) for distribution U.S.C. § standing arrested while Holloman was pos- one, Boney, also convicted of gas nearby the cashier’s window Boney grams 12.72 of cocaine. session of and the cashier were station. Holloman erroneously the district court claims that station, pre- only people at the and the testify as to permitted expert witness twenty marked dollar was on the coun- bill objects to the district guilt. Young ter front of Holloman. identified in- give an identification court’s failure suspects at the scene of the ar- all three that the jury the and contends struction to rest. sentencing for improperly considered Marks, Holloman, Boney and tried were very grams of cocaine purposes the 12.72 jury distributing for the .199 before a charge of which possession in the involved grams purchased by Investiga- of cocaine appellants assert acquitted. he was Both Young possessing tor and for intent to right to' an that their Sixth Amendment grams of cocaine distribute 12.72 found because after impartial jury was violated government under the truck. The intro- ju- that one of the trial it discovered was expert testimony duced from Officer David felon. We affirm on rors was a convicted Stroud, concerning who testified the roles ju- except the Sixth Amendment all issues participants drug traf- and behavior of for the district We remand ror bias claim. ficking operations. government put hearing into actual bias. court to hold a involving hypothetical an elaborate Stroud people performing exactly three the same I. case, in actions as the defendants in'this midnight September Shortly after location, using same exactly the same of the Metro- an undercover officer words, amounts of co- and even the same Young, Department, Darrell politan Police testified that the scenario caine. Stroud Jeffrey sought Marks and approached pattern suggested to him a common buy twenty dollars worth of crack cocaine. sale; gave opinion on cocaine he his who appellant A. Hollo- Marks asked Donald “runner,” operation was a the described man, standing a short distance who was “holder,” going and who “was who was Young. away, Investigator to “serve” Hol- actually make the sale.” might not have replied loman that he Young, testified about thereupon appel- who also enough. Marks called to Officer transaction, con- cross-examined Boney, was also stand- was lant Jermaine who night ability Holloman at cerning his to see ing nearby, and told him to “break ... of Hollo- his later identification piece Boney the rock.” walked to a and about off truck, closing argument, Holloman’s the rear man. pickup reached down behind theory Holloman tire, pressed the plastic bag which held counsel and retrieved the time of the misidentified at Young large described as a off-white had been what court, however, declined to he arrest. The Holloman said that had rock. then describing the gave give jury an instruction enough for the transaction and Inves- in identification grams difficulties often involved tigator Young .199 of cocaine base gov- gave testimony emphasizing and Young, exchange, purity. of 84% the defendants’ twenty prere- ernment must establish Holloman a dollar bill with beyond a reasonable doubt. identification corded serial number. car, acquitted returning Young jury, puzzlingly, rather After to his radioed counts, convicted Holloman team to move in and Marks on both members of arrest grams of walking only of distribution of the .199 told them that Holloman was to- (he acquitted possession nearby gas they ap- As cocaine was ward a station. arresting grams police found under proached, one of the officers saw 12.72 count drugs involved weight of Boney of both truck), and convicted pickup acquitted. re- had been he was After verdict offenses. sentencing, Holloman’s

turned, but before foreman tip that the received a counsel II. An investi- felon. jury a convicted confirmed by prosecutor challenge gation Boney’s We turn first grand convicted of had been the foreman Ac- of Officer expert testimony Stroud. consent taking a vehicle and without present- theft hypothetical cording Boney, had been arrested and in California closely mirrored prosecutor so ed Boney Holloman Arizona. and larceny in by assigning facts this case presence the felon’s claimed that in the hypothetical, roles to individuals Amendment Sixth violated gave opinion essentially Stroud Officer trial. a new they moved rights, playing Boney Holloman their motion. The court denied Boney as- sale. in a cocaine those roles helpful testimony was not acquit- serts that though had been Even required charge, the court possession ted Fed.R.Evid. unduly prejudicial under Boney’s Holloman’s and that it was calculated both weight of by aggregating sentences Fed.R.Evid. 403. (.199 grams in both counts drugs involved argu appellant’s We consider grams and 12.72 count on the distribution sepa 403 Rule 702 and Rule ments under count). the Sen- Under possession on objection only Rule 702 rately because Guidelines, drugs tencing that amount district trial.1 The preserved was range sentencing of 63-78 produces a expert testimony admission court’s The district each defendant. months for only subject to reversal under Rule 702 months, Boney to 78 court sentenced See United States of discretion. for abuse accepting respon- credit for gave Holloman (D.C.Cir.1988).2 761, Dunn, 763 846 F.2d v. him to 63 months. sibility sentenced and testimony that expert permits Rule 702 convic- appeal their Boney and Holloman of fact to understand the trier “assist[s] that Officer Boney contends tions. a fact is to determine the evidence or testimony inadmissible expert Stroud’s was re that 702. Under sue.” Fed.R.Evid. jury to the unhelpful it was both because testimony “assist” expert that quirement unduly prejudi- and under Fed.R.Evid. 702 “help as the (usually referred to jury Holloman cial under Fed.R.Evid. 403. testimony should or requirement), fulness” refusing to charges that the court erred to matters within dinarily not extend of identifica- jury on the issue instruct the Stroud’s knowledge laymen. Officer presence claim that tion. Both so. The certainly did not testimony do Amend- jury the Sixth on the violated felon repeatedly dealers operations of narcotics Finally, requires a new trial. ment and topic to be suitable have been found the district argues also they testimony are expert because and Double the Due Process court violated knowledge aver the common within Amendment of the Fifth Jeopardy Clauses See, v. e.g., age juror. United States on the calculating his sentence based by assertion, testimony unhelpful expert government's Bo- counsel considered Contrary to the objection ney’s jury under Rule thus barred did raise an to the Rule counsel began to Before Officer Stroud 702 at trial. "you Boney’s protested real- testify, counsel court's circuits have stated that district 2. Other nothing expert. com- ly an don’t need There testimony expert be over will admission of ” objected to plicated case.... He also See, e.g., manifestly only if erroneous. turned concerning "roles and testimony the defendants' 230, Boissoneault, 232 v. 926 F.2d United States objected govern- Finally, to the he so forth." (2d 1991); Espinosa, v. 827 United States Cir. prosecutor hypothetical ment’s after detailed denied, Cir.1987), 604, 485 611 cert. F.2d before Stroud it but Officer had described 1243, (1988). 968, 441 108 sufficiently objections were These answered. applying to be We understand these circuits 103, the district specific, alert see Fed.R.Evid. apply test that here. same we appellant's opposing counsel itself, see, Dunn, 761, (D.C.Cir.1988); could make for inferences 846 F.2d Boissoneault, Carson, e.g., 233, v. F.2d 926 F.2d at United States stat denied, Cir.), ing cert. (2d pat 462 U.S. that the defendants’ actions fit sale, typical drug tern of a Officer Stroud did not draw conclusion so obvious that it Nevertheless, Boney contends thought could the juror’s be he invaded that, expert testimony op although Arenal, province. Cf. drug general may erations of dealers (8th Cir.1985) (holding F.2d admissible, expert prohibits Rule competent particular opinion that a giving from samples own to conclude that several particular role in al played defendant agent cocaine all cut with one activity. position is that leged criminal His source). testimony the same His testimony is because the barred both similar to a statement defendant’s implic rule helpfulness requirement of the actions mirrored a common criminal modus itly prohibits testimony on matters operandi—a testimony generally form of own, expected to infer on their jurors are Espinosa, allowed. See United too close testimony comes because (9th Cir.1987), cert. de innocence, guilt opinion to a direct nied, See, e.g., proscribed. which would also be (1988); States v. Stew L.Ed.2d 441 Lockett, art, (9th Cir.1985), 770 F.2d (9th Cir.1990). Boney notes that Sec expressed “discomfort” ond has Circuit States v. Mah particular testimony that connects de er, (9th Cir.1981) (per conduct, see in criminal fendants to roles curiam). Boissoneault, 926 and has F.2d expert per “an not be stated that should Circuit, however, The has Second testify mitted that the defendant’s ac objected testimony slightly to such fit pattern tions a conduct which ground it different that would be “rather expert prior in narcotics in had observed expert approach to allow an offensive” Cruz, vestigations.” in the ultimate conclusion the case testi (2d Cir.1986). fying particular that a defendant’s actions pattern fit a of criminal express opinion Officer did an known conduct. Stroud Brown, this See United States about the actions the defendants denied, (2d Cir.1985), cert. disguised thinly 475 U.S. government’s case—the 1141, 106 (1986).3 hypothetical did render statements Still, imagi- part mere of an is of the normal role of a assessment it abstract Nonetheless, merely patterns nary expert Rule 702 does to describe scenario. abstract, drawing ac expert not bar from conclu- conduct in the but connect an case, including specific patterns— a to those specific sions a conclu- tions in a case point testifying sion that the defendant was involved in sometimes even illegal specific that involved in activity playing role the defendant was criminal See, e.g., v. Car illegal activity. The does not confine conduct. Rule denied, son, cert. Cir.), expert general (2d F.2d 351 an statements the field 2456, 2457, require it expertise; of his does not that (1983). specif- from in the The Circuit’s inferences the facts Second Although jury. ic case be left to the marked ambivalence toward such testimo expert ny perhaps as ex- be well that an should draw reflects a concern that Although Boney expert held that that in the Sec- Brown court nevertheless claims Cruz testimony connecting spe- ond barred testimony concluding Circuit that the defendant had cific to a criminal modus defendant common played the role of "steerer" in narcotics operandi, the law in circuit is not as clear Brown, operation was admissible. See 776 F.2d suggests. as Circuit stated he Second has at 401-02. "expert may suggest recently generally that an facts, be drawn from the inferences should L.Ed.2d 75 United testimony and S.Ct. depart general from perts Fleishman, 1335- about criminal conduct States v. conclusions draw them, Cir.), they approach what the cases before (1982). accepted to be forbidden That generally verge opinions ground supported by because Rule seem position would concerning the defendant’s conclusions testify 704(b), expert bars which guilt. “the mental ing that the defendant had constituting an element condition state or accepted note generally sayWe 704(b). charged,” of the crime Fed.R.Evid. by no obvi proposition means guilty defendant opinion An Rules of the Federal examination ous from necessarily incorporates conclusion expert time an At one of Evidence. requisite mental had the the defendant any ultimate testifying on prohibited from offense. elements of the state to meet all fact. by the trier of determined issue to be nature of the Although overlapping See, Spaulding, e.g., expert testimony can treating L.Ed. provisions 704(a) specifically produce re confusion5 understandably some Rule expressly prohibition and now relied on to regarding precise moved that rule testimony on “ultimate is permits expert agree we opinion guilt, as to exclude of fact.” by the trier to be decided guilt or innocence opinion on sue[s] that a direct hand, 704(a). On the other that Rule 702 is barred and Fed.R.Evid. would be that, de commentary Rule 704 states challenging such testi plausible vehicle 403) (and Rule 702 Rule spite change, mony. “opinions used to exclude may still be however, contentions, would Appellant’s re merely tell the what essen- go Appellant further. require us to 704, Note of reach.” Fed.R.Evid. sult to general accept if tially argues that we Proposed Advisory on 1972 Committee not tes- expert must view—that an witness accordingly has Rules. The Fifth Circuit guilt or tify directly as to a defendant’s guilt or question innocence regarded inexorably to the are led innocence—we than entailing legal conclusion rather objection to testi- episodic Circuit’s Second fact, trier of an issue for the see equivalent of mony is the functional Masson, n. 5 582 F.2d 964 v. States accept disagree. We We the forbidden. (5th Cir.1978); Kerr- see also Owen v. that an Ninth Circuits’ view the Fifth and (5th 236, 240 Cir. Corp., 698 F.2d McGee testify the ultimate expert may not on 1983), consistent Circuit has and Ninth innocence, find no guilt question give a direct expert may not ly held that an extend that in Federal Rules to warrant inno guilt or opinion on the defendant’s coherent line prohibition. We think that no cence, although the court has never and beyond that restriction can be drawn reasoning. v. specific in United its States boundary has find such a Cir.1990); that the effort to (9th Lockett, F.2d 590 919 in the Sec- perceive caused tension we 388 843 F.2d Kinsey, United States v. opinions. Cir.), denied, 109 ond Circuit’s (9th 488 U.S. cert. fact, (1983)). appellant language cites embracing including is In the ultimate inferences case," Boissoneau.lt, holding at 232 in 926 F.2d

sue in the mischaracterizes Cruz omitted), (citation it has Brown, and has noted that Circuit re- a case in which Second conclusory experts state "permitted to make of an ex- in the admission fused find error ments, experience, that the defen based playing pert’s opinion had been that a defendant illegal drug-related activi in dant was involved See in a sale. of a "steerer” narcotics role Brown, (citing ty.” States v. at 233 United Id. Brown, F.2d at 401-02. 776 denied, (2d Cir.1985), cert. 776 F.2d 397 L.Ed.2d 90 339 case, apparent for in this 5. That confusion (2d Young, F.2d Cir. v. solely appellant on Rules 702 and relied while denied, 1984), government pressing appeal, re- (1985); and United States v. sponded appellant's argument had been as if Carson, (2d Cir.), cert. F.2d 704(b). Rule based on case, however, Boney did In this at testimony, which Stroud’s Officer judge to discre trial exercise not ask the and defendants particular matched most Although Boney ar Rule tion under in an roles paradigm their actions testimony was gues appeal that Stroud’s amount to enterprise, does illegal objections Rule under inadmissible guilt. defendants’ opinion on the direct enough specific to raise trial 1335-36; Fleishman, Unit- 684 F.2d See recognition of the threat Our that issue. 961, & n. Masson, v. ed States “unduly may pose bi expert testimony Concluding that a defen- Cir.1978). (5th Anderson, F.2d at asing jury,” prosecu- (as described actions dant’s objection to ex every mean that does not played defendant tor) that the suggest an automatically includes testimony pert not the enterprise role a criminal given unduly prej testimony that the objection govern- jury that telling the same as Precisely Rule 403. because udicial under its case every element of proved has ment under the trial requires Rule 403 court charged. guilty and that defendant balancing determine take a subtle Dunn, 846 Indeed, States of the evi probative value whether the permitted testi- (D.C.Cir.1988), effect, we outweighs prejudicial F.2d 761 dence There to Officer Stroud’s. alerted to the need mony similar must be trial activi- specific objection. nature timely that the expert concluded balance suggested “a retail in a townhouse ties everyday distribu- operation used though appellant did not Even crack and primarily

tion, distributing of Rule 403 at objection under preserve an simi- Stroud 762. Officer Id. at heroin.” trial, must review admission we still the actions described larly opined that error, plain see Fed. testimony for expert holder” a “runner and suggested this case 103(d), cannot re means we R.Evid. appellants’ ac- drug type of sale extraordinary circum than verse “other in the “runner certain roles tions fit rights and ‘affectpng] substantial stances ” Dunn, we did operation. holder” justice.’ miscarriage of in a resulting] conclu- expert’s 702 to bar read Rule Johnson, illegal drug described that the facts sion (D.C.Cir.1986)(quoting in this case addition operation. Cir. Johnson, of indi- specific treatment imagine somewhat more a Rule 403 1983)). It is difficult not warrant a different exacting roles does vidual could meet challenge that therefore, Rule, and, we contemplates the result under the standard, Rule 403 claim. appellant’s trial reject thoughtful consideration to the the admission evidence and leaves Nevertheless, we echo here judge. As of the trial sound discretion in sounded cautionary note we in stated Third Circuit Cir.), is an (3d often v. Anderson: cert. States 767 “[TJhere F.2d Long, 574 testimony un expert danger 58 inherent 99 denied, 439 U.S. aura of jury of its duly biasing judicial ‘because “If self-re ” F.2d Rule reliability desirable, and trust.’ 851 special it is when ever straint is (D.C.Cir.1988) (quoting United court is reviewed of a trial analysis (9th event, in Amaral, F.2d In appellate tribunal.” States denied, could Cir.1973)), think the district cert. this case we note value reasonably thought We quite have this, connecting the defen testimony within the as is in cases such it Stroud’s that drug sale under to exclude to identifiable roles in court’s dants trial discretion And, in testimony goes outweighed prejudicial effect. expert that Fed.R.Evid. what that rather clear hindsight of criminal modus it seems description beyond testimony impact the assigns specific ever prejudicial in operandi general influence carried, overly it did not if court defendants roles individual suggestion jurors, despite Stroud’s for prejudicial. unfairly deems the fail- inherent in “prejudice analyzed drug “runner” in been the Marks had an identifica- court offer” the trial on both ure of acquitted Marks operation, instruction, declined id. tion counts. “case exhibited] because to reverse III. pres- often special difficulties none testimony that identification ented argues Holloman Appellant be information require additional refusing to in erred district court that the repose jury in for us to order given to the identifica the issue of jury on instruct the ability evaluate in their confidence identification that when He claims tion. identification,” at 556. id. Salley reliability in issue, decisions prominent our our (D.C.Cir. summarized thus States, The Fourth Circuit v. United States, accurately it stated when 1965), v. United cases and Macklin there oblige a district when (D.C.Cir.1969), “compelled” F.2d 174 instruction difficulties,” instruction an identification give “special court are Cir.), requested.6 Brooks, when one — -, reversible it was Salley we held (1991) of such the absence —in refuse the the district court error is not to instruct failure circumstances request for instruction defendant’s error. Salley, See identification. mistaken v. United in Jones at 898-99. But identification Young’s Officer (D.C.Cir.1966), we States, F.2d 537 special presented case no in this Holloman of our limitations “emphasized the narrow single Young executed a difficulties. restricted ruling Salley,” id. in in Holloman to face with face transaction revealed patterns that holding to fact minutes by streetlights. Within lit an area difficulty in the identification. special some to his Holloman description of he radioed complications just such Salley presented he shortly thereafter identified team, and narcotics “an undercover there because arrest. at the scene Holloman recollec- isolate in his attempted] to agent in as participant identity of one tion the transactions.” similar many aas 100[sic] IV.

Jones, F.2d at 542. argue that the also Boney holding in Our Macklin grant refusing to erred in district court Although we similarly limited. said light trial new their motion major identification is which cases in sen- but before discovery, after conviction jury on instruct the court should issue the trial in their jurors tencing, one of the Macklin, 409 sponte, see identification sua contend appellants awas felon. read suggestion our must F.2d at Amendment Sixth in this situation subsequently We have precatory. requires a impartial of an guarantee failing to offer a district reversed interpret the urge us to They new trial. diffi particular instruction such an unless 28 U.S.C. light Amendment Sixth testi complicated the identification culties jury selec- govern the Thus, case. mony §§ process. (D.C.Cir.1972), tion we Telfaire, 469 F.2d

v. however, defen- that all three to alert the court argues appellant Hollo- government 6. The objections. Fur- joining each other’s object jury dants thermore, properly instruc- to the not man did given, charge had been fact, after effec- Holloman’s counsel trial. In tion at retired, allowed jury the trial court Before before tively objected instruction to the twice. objections. Counsel opportunity for another given, stated charge was Holloman's counsel lack of an clearly objected to the then objections of all behalf make would she Because instruction. Marks identification that counsel Fed. three defendants objection to only an requires Boney for Bo- in.” Counsel R.Crim.P. would "chime and ney jury to retires charge give be raised before objected to the decision not then verdict, objection was Holloman’s consider its state- The earlier instruction. identification sufficient, sufficient. by counsel was ment Holloman’s Uribe, v. reli- direct appellants eschew The Cir.1989) (“Like (1st many statutory so 1865-1867 because 28 U.S.C. anee on §§ right time- to exclude felons must be appear rights, the statutory remedy would sure, invoked.”). inapplica affirmatively To be the statute We think barred. purpose to just congressional not because appellants, but 1865 evinces to the ble § juries. The juror concealed service of felons on objection to who restrict the Rather, untimely. procedural limitations felon status strict § help appellants however, abundantly do clear that other 1865-1867 make U.S.C. §§ a differ address provisions values, efficiency those and final judicial such as because by procedures problem Congress’ felon- tempered ent desire bar ity, —the jury should administer reject rule of Congress district led jurors and requires a process. Section selection per se reversal. certain to exclude court official

district right to an including both convicted Sixth Amendment jurors, groups The felony, similarly require impartial jury accused of does felons and individuals disqualifications. felon-jurors. Supreme to status-based absolute bar on pursuant 1865(b)(5). But 1867 estab repeatedly stressed 28 U.S.C. Court has § § on the guarantee impartial limitations procedural strict of an lishes touchstone objections See, raise ability parties against juror jury protection is a bias. 1867(a) Power, process. Subsection jury Equipment, selection Inc. e.g., McDonough object “before Greenwood, the defendant allows 104 S.Ct. begins, or within sev (1984).7 examination 845, 849, per voir dire Á se or discovered days therefore, after the defendant en appropriate, rule discovered, by the exercise could reasonably conclude that fel if one could therefor, grounds whichever diligence, party always against one ons are biased 1867(a). And sub 28 U.S.C. is earlier.” status, alone, § does not another. But felon 1867(e)emphasizes that the section fact, § as the dis necessarily imply bias. “exclusive procedures constitute Congress’ purpose re suggests, sent challenge the can parties means” which jury may stem stricting felons’ service 28 U.S.C. improper selection. jury for other than a concern from considerations 1867(e). apply provisions These do § Dissent at 637-38. jurors. for biased case, however, directly because to our requiring a per se rule important, More felon juror fails to disclose his when a out that a felon it turns new trial whenever form, no qualification jury status inconsistent with jury on a seems served process in the court’s selection defect unnecessary new hostility to McDonough’s occurs. 848-49, trials, 104 S.Ct. at id. defen oft-repeated axiom and the “[a 28 U.S.C. Insofar as §§ not a to a fair trial but is entitled moreover, analysis, dant] are relevant to our States, v. United perfect one.” Lutwak any rule that would they against counsel 481, 490, statutory to automatic reversal. lead therefore, that think, We L.Ed. 593 in the to stand permits a conviction scheme im of an guarantee Amendment the Sixth dis untimely allegation that the of an face se per does not mandate partial trial serve juror a felon trict court allowed selection, every reached conviction invalidation pro proper jury violation included a felon. Accord Unit example, if a acknowl cess. For (1st Uribe, jury qualifica ed States edged felon status on the Currie, Cir.1989); permitted to serve tion form but was curiam), Cir.1979) (per an F.2d 1867 would bar violation of § See, e.g., untimely challenge to his service. 1990), North, (D.C.Cir. 904 McDonough juror’s States v. 910 F.2d Although a fail- involved 7. -, denied, during 114 the voir dire ure to disclose information -U.S. case, applied (1991). a civil we have examination in L.Ed.2d 477 McDonough to criminal trials. See however, case, the dis In this v. United Ford L.Ed.2d defendant’s denied judge Cir.1953); trict (5th States, cf. hearing. To be evidentiary an for motion U.S. Carpenter, Raub v. the district in North sure, reliance our (1902)(denying a 47 L.Ed. S.Ct. settle hearing not did evidentiary judge’s case).8 civil in a a new trial for motion hearing required is a whether question does Amendment though the Sixth Even juror trial that after it is revealed when reversal, there is still require automatic information. relevant concealed had enti were appellants question whether directly likewise, has not Court, Supreme whether determine hearing to to a tled gener issue, it has noted faced Although the in fact biased. was juror allega remedy for “that principle al does status juror’s felon discovery hearing ais juror partiality tions trial, think we require a new by itself opportunity has the the defendant which his status failure to disclose juror’s Phillips, v. Smith bias.” prove actual pres examination the voir dire response to 215, 102 S.Ct. all, After concerns. added serious ents judge was the district (1982). think We infor relevant failing to disclose or lying hearing here. conduct obliged to sub raises itself during voir dire mation N.R.R., Burlington Hard Cf. possible juror’s questions about the stantial that, Cir.1987) (ruling under (9th 482, 484 rule adopt per se refusing to While bias. court’s case, district facts of new trial in United requiring a hearing evidentiary grant an failure (D.C.Cir.1990), cert. North, F.2d 843 dishonesty was an abuse juror about — 2235, 114 U.S.-, denied, any hold discretion). not now We do the seri recognized we concealment deliberate false statement concealment juror’s of a deliberate ousness evidentiary hear an necessitates juror aby during dire. voir information of relevant refusal juror’s that a we believe ing. But court should that a district We assumed particularly felony status to admit showing of actual upon a trial grant new information some Unlike troublesome. court’s denial the district and affirmed felon dire, question bias about sought voir had it a new trial because as juror for average of a motion strike status would no hearing and found evidentiary Lying held an and sensitive. extremely serious 904-05; (and easy to as important see also Id. at as bias. factor about a records) Cir. felon sta Currie, through public verify curiam) (affirming the district the inference at least 1979) (per raises tus participate new trial desire to for a undue a motion had an juror court’s denial partialit case, perhaps because hearing determined evidentiary specific after no evi provides record y.9 lied about Because jurors who that those the lie was the motivation against dence biased felon status case, it was in this bias unrelated defendant), cert. facts under these of discretion abuse trial a new motion for through post-judgment per se support for a rule finds The dissent 8. years perhaps later appeal and direct jurors or on to strike trial power of a ap- That U.S.C. 2255. § See 28 under in the interests grant a new trial cause and policymak- straightforward federal pears to be 639; trial That the justice. Dissent Congress. reserved ing, we think suggest that power does not judge possesses this it. to exercise for him decline error that a things equal, the likelihood governed other of that decision 9. All Our review dissent, in- is biased information how- who conceals standard. abuse of discretion judge’s disclosure ever, trial with the likelihood the existence creases use disqualification. to his will lead promulgated information a rule fashion discretion to during status of a felon permits a defen- the disclosure Because appeals rule which court of —a disqualification, conviction, certain to almost felon trial leads challenge because a dant particu- concealing that status is about concern time jury, before at least sat on his appropriate. larly presumably later judgment is entered and acquitted trial not to have held an eviden- use of in sentencing conduct tiary hearing. Sentencing under See Guidelines. Coleman, United States v. 1424, 947 F.2d remand this case for the We therefore (10th Cir.1991); United States v. 1428-29 evidentiary hearing court to hold an district Rivera-Lopez, (11th 928 F.2d 372-73 juror’s determine failure to whether Cir.1991) curiam); (per United States v. felon status resulted in actual disclose his Fonner, (7th 920 F.2d 1332-33 Cir. appellants. bias to Duncan, 1990); 918 F.2d —

V. denied, (6th Cir.1990), cert. U.S.-, Appellant Holloman also claims that his (1991); Rodriguez-Gon States v. improper. Although Hollo-

sentence was zalez, (2d Cir.), 899 F.2d 180-81 only man convicted of distribution of — -, acquitted U.S. grams .199 of cocaine and of Dawn, United States v. possession (1990); intent the L.Ed.2d with distribute Boney grams pick- (8th 12.72 had under the Cir.), 897 F.2d cert. de 1449-50 — truck, up presentence report aggregat- nied, -, ed the two amounts of cocaine and calculat- United States v. Moc ed an offense level based on the combined ciola, (1st Cir.1989); 891 F.2d 16-17 weight grams. The of 12.919 offense level Isom, United States v. 886 F.2d 738- sentencing range determined a of 63 to 78 (4th Cir.1989); United States v. Juarez- months, statutory within the maxi- well Ortega, (5th Cir.1989); 866 F.2d years mum of 20 set U.S.C. Ryan, United States v. 866 F.2d 608- 841(b)(1)(C), range far above § (3d Cir.1989). Circuit, Only the Ninth applied 10 to 16 months that would have strong Judge over a dissent Chief Wal grams the .199 been used to calcu- lace, rejected acquitted has the use of con late the offense level. sentencing, duct in and it did not rest court, finding by grounds.

The district at least a decision on constitutional See preponderance of the Brady, United States v. evidence Hollo- 851- possessed grams man also the 12.72 Cir.1991). n. 14 52 & pickup cocaine discovered under upon

truck,10 “relevant conduct” which considered that “relevant conduct” require lB1.3(a) Guidelines offense level under of the Guidelines and sen- § is, offenses, drug related tenced Holloman be based to months. Had Hollo- possession sweepingly man been convicted on the defined to include “all such acts count, intent part to distribute the same sen- and omissions that were of the same tencing range of 63 to 78 months would or common scheme course of conduct applied. argues plan as offense conviction.” Sentencing permit do not Guidelines consid- lB1.3(a)(2). language That U.S.S.G. § drugs eration of the involved in the count certainly enough broad to include acts un acquitted. on which he was And he con- derlying offenses of the defendant by considering drugs tends that those Indeed, acquitted. application has been sentencing by giving him the same notes make clear that conduct rele sentence that he could have received had sentencing vant for if even the defendant counts, he been convicted on both the dis- was not convicted on any count involving Jeopardy trict court violated the Double 1B1.3, that conduct. See id. Commen and Due Process Clauses of the Fifth 6A1.3(a) tary Application Note 2. Section Amendment. range Guidelines allows a broad sentencing appellants’ argument information to be used in is offered in overwhelming prior judicial requires simply the face of the information have re- jection; a full ten reliability support circuits have authorized “sufficient indicia of fact, sentencing suggested beyond cocaine had been shown a reasonable possession grams Holloman’s of the 12.72 doubt. guilt simply diet indicates that probable accuracy.” U.S.S.G. doubt; it does beyond a reasonable proved an 6A1.3(a). Congress also has endorsed § played no may that the defendant that not establish of the information expansive view See, charged e.g., part limitation shall in the conduct. sentencing: in “No used be 1332; Isom, concerning Fonner, 886 F.2d 920 F.2d at on the information placed

be character, of Assort- 738; and conduct v. One background, cf 361-62, Firearms, a convicted of an offense which person ment a of (1984). for the ... receive and consider 79 L.Ed.2d 361 S.Ct. sen- imposing appropriate acquittal may purpose underlying of Conduct will, there- proved 18 U.S.C. We sentencing long tence.” as as it is in § used on fore, the Ninth Circuit in isolation process. leave due by a standard that satisfies join, instead, the other ten issue and imply that Although Holloman’s assertions Sentencing holding Guide- beyond circuits requires proof the Constitution sentencing of the use in conduct lines allow sentencing, it is well reasonable doubt acquitted counts.11 underlying process is so established that “due satisfied sentencing necessary are long facts chal constitutional Holloman’s preponderance of evi- proved Holloman ar significant. are not lenges Burke, 888 F.2d dence.” States v. acquitted conduct to use of the gues that (D.C.Cir.1989);see also McMillan the Double sentence violated enhance his 79, 91-92, 106 Pennsylvania, him for an by punishing Jeopardy Clause (1986) acquitted. Even he was of which offense (approving standard in con- the same Clause, Jeopardy assuming the Double sentencing). Because the sen- text of state Clause, would than the Due Process rather prepon- least a tencing court found being sentenced protect a defendant pos- Holloman of the evidence that derance acquitted, charge he was cocaine, grams it com- the 12.72 sessed argument “misperceives the Holloman's error in consider- no constitutional mitted a sen a sentence and distinction between his sentence. ing cocaine to enhance Mocciola, enhancement.” tence impose a court did not at 17. The district Admittedly, Holloman received pos for the separate on Holloman sentence if he have had same he would sentence Rather, considered count. session possession count. on the convicted drugs count to enhance involved and is cer That is rather anomalous result range statutory sentence within perspec tainly unlucky from Holloman’s he con of which was distribution offense tive, Neither it is not unconstitutional. merely af acquitted conduct “the victed: Jeopardy nor the Double process due range statutory point within the fected requires convicted Clause defendant imposed.” Rod sentence was at which his statute multiple counts under same at 181. In riguez-Gonzalez, 899 F.2d a defen receive a different sentence from separate punishment for the absence of dant convicted on one count. conduct, does not have acquitted merely in Holloman’s a conse result case arguable the Double claim based on make both quence Congress’ decision to Jeopardy Clause. possession intent distribution and un the same offense distribute substantive argu process Holloman’s due 841(a) sentenc to base der U.S.C. assumption false ment is based drugs ing weight involved. finding acquittal equivalent complete innocence. But guilty ver- ^{[*] [*] [*] [*] [*] [*]} sentencing seized in viola Relying provisions we have the use in of evidence on the above sentencing See United already approved tion of the the use in Fourth Amendment. (D.C.Cir.1991), uncharged McCrory, weight drugs criminal 930 F.2d involved — U.S.-, rt. counts. See United conduct and dismissed ce 116 Chaikin, (D.C.Cir. underlying an Conduct States v. Salmon, 1992); acquittal require does different treatment (D.C.Cir.1991). Similarly, we allowed under the Guidelines. ruling power our on the nullification Accordingly, reject all of the chal- we against lenges appellants jury ought brought open. raise to be out argument except their that the convictions requires evidentiary Amendment

Sixth A. The Felon-Juror hearing juror’s whether a fail- to determine My colleagues apparently view the felon- in his felon status resulted ure to disclose juror’s deceptive silence on voir dire as the appellants. re- against actual bias We problem. They source of the treat this court to hold such a mand to the district governed by case as if it is hearing. North, (D.C.Cir.1990), It is so ordered. — U.S.-, 114 L.Ed.2d 477 held that RANDOLPH, dissenting Judge, Circuit juror when a has made a false statement concurring part: in part dire, aggrieved party on “an voir must colleagues’ agree my I with as- do juror’s response show that correct ... consequences of flow from sessment what would have demonstrated actual bias.” trial, jury that the discovery, after a interpreted McDonough North Power happened a re- jury foreman of the to be Greenwood, Equipment, Inc. v. Assuming cently-convicted felon. that the restored, I juror’s rights have not been civil cases, jurors incorrectly In an both had require a would reverse the convictions and dire, question swered a on voir in North view, my In the status of the new trial. deliberately, inadvertently. in McDonough deception juror plus juror’s as a felon A correct answer in each case during of court and counsel voir dire dem- bias, possibility revealed the of actual of onstrates that this individual could not be juror’s favoring disfavoring or one side instruc- trusted to conform to the court’s weight other than the of the reasons discharge faithfully tions and to his duties problem But is not the evidence.1 “bias” juror. as a here. respect separately I also write disqualified serving from on Felons are Jeopardy question whether the Double juries in criminal and civil cases. 28 both court calcu- Clause forbids a district from 1865(b)(5). It U.S.C. is not “bias” lating commit- a defendant’s sentence for Jury them. Selection disables drug light quanti- ting one offense (the Act), Service Act of 1968 28 U.S.C. ty drugs charge involved of which preserve excluded felons to Although acquitted. the defendant was I §§ H.R.Rep. reach, jury. my colleagues “probity” agree with the result No. (1968).2 Cong., It case is close and I the effect of 90th 2d Sess. 6 believe McDonough damages juror qualification ed on the form and other was a civil action for allegedly arising product. person unqual- from an defective competent evidence whether prospective jurors had asked the wheth- Counsel jury ified for ... service. they any family er or member of their had ever "seriously injured” by product. defective (b) making In the chief determination juror though had silent even One remained court, judge district district or such other leg exploded. when a tire son’s been broken judge plan may provide, shall deem as the did not bro- It later turned out he consider the petit any qualified grand person or to serve on North, leg injury. ken case, a "serious" criminal juries in the district court unless he— speak up when the court one did (1) is not a citizen of the jury panel they if or members of asked peri- eighteen years for a old has resided who ever been convicted of a their families had district; year judicial od of one within crime, though juror’s this brothers had one of read, write, (2) and understand is unable to been convicted. degree profi- English language with a satisfactorily ciency fill out provides pertinent part sufficient to that: 2. Section 1865 form; juror qualification court, (a) judge The chief of the district or (3) language; English speak unable may plan such other district court as the (4) incapable, reason of mental or provide, upon or his initiative recommenda- commission, satisfactory jury physical infirmity, to render tion of the clerk or shall deter- service; solely provid- mine on the basis information day. See this form in milder tinues doing so. ground new no broke it, to saw Aristotle As termed criminals Fed.R.Evid. barred Greeks ancient office; public to hold was Spe- serve juries. serving on “infamous” constitutive so do capacity to supra note Project, Vand.L.Rev. cial 1275a. Ill POLITICS, Bk. a citizen. being cites Insti- 1. Blackstone Coke’s at 941 n. felon proposition today is tutes lead should all Where Blackstone, W. jury. on a not serve think The defendants altogether certain. ENGLAND OF LAWS THE ON unfit- COMMENTARIES determination congressional supra, Blaokstone, also see 4 W. 361-63; pres- the that conclusively establishes ness law, were felons At common 352. at them denies felon disqualified a ence of most and juries, American from barred Sixth by the guaranteed jury” “impartial effect, to this statutes now have states objects that The government Amendment. 1865) provide (like section many though bearing because here has no 1865 section been he has if may serve felon a that comply with failed Boney and Holloman Special society. formally into rehabilitated 1867(a). section forth in set limits time 1054. supra, at 23 Project, Vand.L.Rev. to raise defendant a criminal requires This this ancient for reasons exact Though the Act “before of alleged violations clear, none crystal disability are not within begins, or dire examination voir Id. “bias.” involve explanations proposed or could discovered days after [he] seven ranged Rather, have they 941-50, 1051. at of dili- exercise discovered, by the have has “declared a criminal idea that from the therefor, whichever grounds gence, 942, and community,” id. at upon the war 1867(a).3 Neither 28 U.S.C. § earlier....” punishment, as of it out cast be so should right. exactly has it side par- adding this notion the dubious require- “jury” which the extent The post- array of other the broad ticular bar (and Article Sixth Amendment ment de- increase would sanctions incarceration common- incorporates III) immutably id. Felons’ crime, at 944-45. terrence unclear. by a felon to service bar law devel- have may also juries from exclusion Wood, 123, 57 U.S. 299 felons exclusion from earlier oped for the (1936), stands 78 177, L.Ed. 81 S.Ct. con- 1051, practice id. witnesses, at excluded should felons proposition that The against him charge (5) pending has one, could not and novel juries is not a of, ain from has been convicted or the commission district court. surprise to of, aas come a crime have of record court Federal State 1865, invoking § cited government itself than for more The by imprisonment punishable discuss- circuits from other relying on cases rights have not and year his civil one Opposition to provision. ing Government’s restored. & n. at 4-5 Trial a New enumerated Motion been thus Defendants’ The exclusions 646, 1948, 1990). there- 25, 15, 62 district court (filed Aug. ch. of June 2 Act 1948. since it, time, and we 869, qualifica- before statute Prior to had the 952. fore Stat. Duignan v. United those for it. juror properly in federal court consider tions for Cf. 568, 566, 200, 71 195, S.Ct. highest States, state in 47 court juror in the 1652, H.R.Rep. (1927). See sat. federal 996 No. L.Ed. (1978), 4 U.S.Code & n. Cong., Sess. 5 2d 95th impels consideration additional An 4; 5477, 1978, pp. n. 5478 Cong. & Admin.News would statute “waived” hold To course. 20, 1789, Judiciary ch. ofAct 29 of § abo see argu constitutional directly to defendants’ lead Stat, 73, Though undertaken I have not 88. deeply more doctrine is one "If there ment. were excluded probable that felons survey, it is constitu process of any in the other than rooted courts. all of those jury service Cf. ought we it is that adjudication, tional Consequences Project, The Collateral Special constitutionality unless ... questions of pass on 929, Conviction, Vand.L.Rev. Criminal Spector Mo adjudication is unavoidable.” (1970). 105, 101, 65 S.Ct. McLaughlin, U.S. Co. v. tor in Jean 154, quoted L.Ed. 101 claims defendants government also Nebon, 105 S.Ct. because, motion in their argument their waived Army v. (1985); Rescue see also felon-juror, basis of on the trial a new 570-75, 67 S.Ct. Angeles, 331 U.S. Los the dis- cite specifically they did 1420-23, Ashwander L.Ed. preserved. the issue think I trict court. 466, 483, TVA, they cite § Though defendants did J., concurring). (Brandéis, (1936) objection. L.Ed. basis of certainly clear the made — U.S.-, granted, though the “settled proposition rule[s] law,” at the common id. at 57 S.Ct. in the Sixth may have been “embedded suppose There is no reason to that the Amendment,” id. at time limits of section 1867 were meant to implementation or modifica- congressional (and absurd) a wholesale work limitation of respected by tion of those rules should be power. Nothing magical happens at 183- the courts. Id. at begins. the moment voir dire A felon’s reject I therefore the defen- altered, suddenly character is not argument that the Amendment dants’ Sixth completely English unfamiliar with the lan- serving juries itself felons from bars guage suddenly does not become fluent. requires per reversal se where one rate, Jury At Selection and Service law, slips through. What federal informed primarily prospective ju- Act concerns how practice Congress’ historical enact- selected; purpose rors are towas en- subject may is a dif- require, ment sure venires reflect a “fair cross sec- question. ferent community,” 1861, tion of the 28 U.S.C. § government’s objection, the the As to by replacing “key system the old man” of 1867(a) time limits of section cannot be methodology. selection with a more neutral felon, under section read to allow a barred S.Rep. 891, Cong., 90th 1st Sess. 9-12 No. 1865(b)(5), no one to sit on a whenever (1967). Challenges way to the in which the objects prior to the start of voir dire. unlikely venire was chosen are to be aided litigant’s time limits did not a Those revoke any gained by by individually information right challenge prospec time-honored to a examining prospective jurors. qualifi- The sup juror tive for cause. No one would cations set out in section 1865 are a differ- pose upon discovery that the of a felon on juror ent matter. Whether a is unable to the court could not exclude him voir dire 1865(b)(3); speak English, section is under doing passed. because the time for so had 18, 1865(b)(1); age physi- of section Wright, Federal and Proce C. Practice infirm, 1865(b)(4); cally mentally or section Another 2d dure: Criminal felon, 1865(b)(5), or is a section convicted Act, 1866(c)(4), provision of the 28 U.S.C. § upon ques- susceptible are all to detection expressly power confirms the court’s to tioning Congress of the individual. also “upon challenge strike venire members supposed judges trial retained the by party good cause shown.” The 1865(b)-unquali- power to exclude section imposes Act no time limits on the exercise “checkpng] in jurors by fied court whether authority, authority of this an derived from up qualification determinations made to power the inherent of the federal courts to valid,” point and eliminated as provide for the conduct of their criminal providing “redundant” a section so trials, protections and a source of in excess S.Rep. 891, leading to the Act. bill No. required by of those the Constitution. Congress thought n. 33. supra, at 32 Florida, 794, 797-98, Murphy v. 421 U.S. power by any not limited time “that [was] 2031, 2034-35, 95 S.Ct. requirement.” Id. (1975); States, 360 Marshall v. United U.S. 1867(a) The time limits of section thus do challenge, absolutely preclude based also v. Pro see panel on the fact that contained venzano, (3d F.2d 995-96 Cir. 1865(b), disqualified by individual section 1980). inquiry power into how just challenge made after because that ought response exercised in comports the start This with of voir dire. particular challenge properly guided by practice replacing longstanding policies practices underlying during Amendment, original juror an alternate incorporated in the Sixth as juror original trial when the is determined underlying juror well as those the basic See, qualifications adopted by Congress unqualified. e.g., in sec to be (2d Cir.) (L. Olano, Gottfried, tion 1865. United States v. 934 v. Cf. (9th Cir.1991), Hand, J.), F.2d cert. state application to hold Fed. clined (1948). See L.Ed. state provisions statute, light by Rule also assumed 24(c). It is R.Crim.P. process due constitution, federal violated juror “to excuse a court allows 23, which 302-03, 16 protection. equal has retired cause after just that, fact 307.) rested provides Raub verdict,” and which consider been have by could verdict returned may be directed verdict since “a valid possibly could entered, plaintiff Fed.R.Crim.P. remaining jurors.” pres- impanelled juror’s juror prejudiced 23(b). disqualified If a have efforts,4 diligent hold does parties’ premise spite ence. deprived of the thereby v. United is not Hansen case, Sparf and trial see when action 105-06, 15 S.Ct. take corrective power States, 156 U.S. light. conclu- come facts so relevant L.Ed. Two courts control. need not defendants’ sion on to the move I therefore re- and Kohl read Raub convictions. vacating their nevertheless argument or actual bias vintage, showing of actual old precedent quiring Court Supreme newa point before side, the defendant seems prejudice neither cited Carpen granted. In Raub position. may be against trial Cir.1979); (6th 47 L.Ed. ter, Currie, 609 on voir case, States, stated (1902), a civil Ford twenty-one and over he was Cir.1953). dire Both any crime. convicted not been by suggested one ground, A middle The Court false. to be proved statements the hearing on remand North, tois verdict was however, determined, that the pres- felon-juror’s effect prejudicial con rendered be “could only one that the The solution. colleagues’ my This is ence. facts”; presence the the sistently with got off hearing, if that the difficulty is have not could therefore felon-juror the distance. a short go but ground, would the 163, atU.S. appellants. the prejudiced inquiry? nature the be would What then addressed The 73. Court 23 S.Ct. at able actually was felon the Whether awas judgment the contention the Apart juror? aas service adequate render it. enter Cit power to for want nullity called' be himself, could who the felon from Lehlback, 160 U.S. ing Kohl Rule jurors. other the Not witness? aas (1895), which 307, 40 L.Ed. S.Ct. tes- Fed.R.Evid., jurors forbids 606(b), though “void” not was a verdict held rule deliberations. their about tifying sub- including an alien by a jury rendered questioning such foreclose also Raub defectum, challenge propter ject v. United Tanner felon-juror. See the “not was below judgment stated 120-27, 107 S.Ct. 483 U.S. States, 164, 23 void,” at 187 U.S. absolutely ... Per- (1987). 2747-51, habe- presented (Kohl had at 74. —on he honored whether be asked haps he could Jersey a New whether question as—the instructions judge’s oath, followed his Jersey to the New contrary was statute responsibilities. faithfully his executed and either noted Court Constitution. affirmative. he answered Suppose other- concluded had Jersey courts New already He he believed? be Why should asked, de- been wise, they had voir concealing his status deceptively, ed from United case distinguishes this Diligence anything suggest dire; does not government Cir.1989), (1st re- Uribe, to un- done reasonably have should There, defendants the felon government. by the lied This verdict. deception before cover dis- eventually it onto made who significant another form, from Uribe differs case juror qualification aon status closed con- capacity for it comes respect. When un- defendants which, to the although available suspect If law, class. are in forming felons rule, them examined was a local der deception on practices felon-juror particular While at in. Id. the verdict after until not), the did juror Uribe (which voir dire broadly, to cover situa- wrote court Uribe con- class concerning felons suspicion was "unknow- juror's status where tions particular individu- respect to that firmed present that able,” did decisional facts al. Uribe, juror here act- Unlike circumstance. status, presented Dowd, position and his court.” Irvin v. lied once about 1639,1642, itself throws doubt on his veraci- as a felon ty. why That is the rules allow witnesses question A closer arises when prior convictions. impeached to be juror professes ability to render fair ser- Perhaps hearing Fed.R.Evid. 609. vice but doubts nonetheless remain. Com- why the court could focus on he deceived pare Florida, Murphy v. disclosing a felon. But by not his status as with Ir- probably represented, if he were as he vin, 81 S.Ct. at 1645. Then 401,1621, should in view of 18 U.S.C. be §§ look, indicate, must so the cases him likely his counsel would advise not to giving at the facts rise to the inference and See, e.g., answer at all. States v. determine whether the can or “cannot (1st Cir.1979). Vargas, realistically expected impartial.” be to be respond, If his answers would still he did supra, process C. at 363. This Wright, lack of trustworthiness. suffer from a duplicated post-trial can hearing: just I written should not be What have light facts that would have come to follow pertain post-verdict inquiries taken ing a correct answer on voir dire can be said, juror’s actual As I have into a bias. developed, drawn, inferences from them approved inquiries, reject- North possible strength and the existence and Judge ed view for the Second Winter’s juror’s bias determined.' The district juror’s that a intentional nondisclo- Circuit judgment then can make a about requires sure on voir dire the conviction to challenge whether a actual bias would be vacated if a truthful answer would have made, so, See, granted. have if might on the merits” that revealed a “view North, e.g., F.Supp. United States v. juror’s being led struck either (D.D.C.1989); W. LaFave & cf. peremptorily Compare or for actual bias. 24.6, J. Israel, Criminal Procedure North, 910 F.2d at with United 1992). (2d North, ed. The facts of like Colombo, (2d States v. presented ques McDonough, facts of Cir.1989). A felon’s exclusion is not for bias,” “excep tion of “actual not the more bias, speaks so neither case to the situation in which “the tional facts circumstance[ ]” here. to are such that bias is be inferred.” “Technically juror fails to meet who North, 904, quoting F.2d at McDon statutory qualifications subject is ough, 464 U.S. at 104 S.Ct. at 850 ’ challenge juror ‘for cause while a who is (Blackmun, J., joined by Stevens & O’Con- ” subject challenge ‘for biased is favor.’ nor, JJ., concurring). requirement North’s supra, (emphasis at C. add- Wright, bias,” “showing of a of actual 910 F.2d at ed). Though Wright Professor states that necessarily already be would of course present gen- lost on “distinction [is] grounds for met when the facts constituted id., lawyers,” eration of I would revive it challenge implied for bias. A judge challenge here. confronted with a a chal- When concealment has frustrated “for must first determine which favor” of bias however, cause,” post-trial lenge “for type challenge facing: he is a chal- purpose, and inquiry into actual lacks bias bias,” lenge “implied for “actual or one for ideally way replicates in no what would fact,” The former is bias.” “bias respect In this happened trial. before “conclusively presumed latter is as a mat- bias, challenge implied for it is to a Wood, similar ter of law.” 299 U.S. at per sé exclusion of the which leads to challenge S.Ct. at 179. If the is for actual correctly If com- a felon bias, veniremember. the trial must then determine form, qualification he is not pletes juror in fact unlikely whether be jury duty. for See Modi- impartial to render even summoned easy service. This is for the United States District juror has fied Plan when the admitted bias for or District of for the against party, acknowledged or has Court for the Columbia some why of and Petit other reason he would find it difficult Random Selection Grand Ju- (As Through August to “render a verdict based evidence rors Amended of two determinations sary consequence through slips F, If he 1991), E & at §§ is allowed Wood made, and under Congress trial, before discovered stage but is at 183, in at make, further without he is excluded presumably is, at some a felon writing the statute: be supra, Wright, ado, 2 C. to have his sufficiently rehabilitated point, inference, arising out of of cause fixing of restored, that the and rights civil other circum and parties identities But states. point be left should case, he will be particular aof stances advisory 609(c) commit- & Fed.R.Evid. cf. other, against one side biased justification not a is thereto. It note tee’s determined Congress because rather broken, to us, rule has been once any jury, deter sit on ought not he away. and walk up hands our throw any party, under the fate mine inevitably a felon said that can it be Nor judg any case. That circumstances, and the defendant biased be must maintaining about concern reflects ment in criminal so that prosecution, against jury, section integrity cf. verdicts, no difficul- guilty cases, involving H.R.Rep. 1076, supra, 1866(c)(5); No. First, I am disinclined ty presented. is in verdicts. it, confidence public with and suppositions statute based interpret a it, put recently Kennedy “[t]he Justice As Second, I to psychology. felon about impress is to system purpose might see I hypothesizing, in such indulge the com and criminal defendant upon the could why a felon be reasons at least two convic verdict a whole that a munity as He verdict. guilty prejudiced towards in accordance given acquittal tion or cynicism developed a callous may have Powers who are by persons the law fair.” innocence, having no protestations about — U.S.-,-, Ohio, while in- laments many such doubt heard add (1991) (emphasis 1372, 113 L.Ed.2d others— to show his desire Or carcerated. believe, adopted what ed). I Congress, citizen good he is now himself —that view—reflected the traditional no doubt excess display an him to lead might law, see, e.g., in our Fed.R.Evid. elsewhere rectitude, in his deliberations both less generally are 609(a), (c) felons —that on what constraints vote. Given others, than responsible trustworthy and post-trial developed at can be evidence on to counted be they just cannot 640, a defendant supra p. hearing, see “fair.” how able show unlikely ever to be conclusions, or how applies felon-juror reached It is not absolute. This bar jurors. the other have influenced he not been rights have felons “civil whose bias, involving there are cases unlike And (a 1865(b)(5) determi- restored,” 28 U.S.C. § jury’s deliberations to the facts extrinsic no state), thereby and by each made nation section under status (other the felon’s than may on who influence some state preserves whether likely to reveal 1865(b)(5)) are of Co- The District juries. sit on federal the exclusion underlying reasons a formal to have appear does lumbia case. particular implicated in felon’s of a restoration for the procedure States, unwilling to con- has been a felon rights, see Williams That civil about raises doubts A felon his conduct (D.C.App.1980). form 421 A.2d oath, and juror’s to honor the capacity District of Colum- upon a in serve judge’s instructions. trial comply year passed has since one courts when bia when, occurred intensify as concerns “incarceration, These proba- completion of counsel court and here, felon deceives he has been when tion, parole,” or and Such on voir dire. his status about jury sys- the District’s pursuant certified perform trusted simply cannot be person 11- plan. § tem Ann. D.C.Code in sitting duty of solemn faithfully the be incom- a felon could 1906(b)(2)(B). That of others. judgment month jury one on a to serve petent incompe- the exclusion next, underlying or could be The reasons competent on the limitations juries state but in one felons in a federal tent mean that received may be evidence another, the ban what makes seem in competent preju- ... disprove or prove “[ejfforts to neces- is the arbitrary. But that somewhat challenged ror not to exclude a felon us would be from the record before dice voir dire. When the right at futile, the outcome of cause guesses whether bring challenge relinquished different ... was not might have been the trial Nevada, speculative.” Riggins v. abrogated by the but rather felon’s con- purely — 1816, cealment, -, -, granted. 112 S.Ct. a new trial should be I U.S. (1992). I therefore express opinion possibly L.Ed.2d 479 no related Ford, at join subject post-conviction decline relief under 28 Currie, Raub reading in F.2d at other than to note that the U.S.C. § and Kohl as requiring a defendant show scope proceedings obviously of such nar- prejudice in circum- actual bias these appeal, rower than direct and that context, impanell- stances.5 the bias prejudice” applicable standard “cause and properly challenged for im- ing juror of a in 2255 actions does not allow relief from § See, e.g., is reversible error. plied bias a non-constitutional flaw “unless Corp., Motors v. General Gladhill claimed error ‘a fundamental constituted (4th Cir.1984), so hold- inherently defect which results a com- ” challenged juror held stock ing because plete miscarriage justice.’ Peters v. corporation. in the defendant Addonizio, 178, 184-85, U.S. Cf 2163, 33 Kiff, U.S. 2235, 2240, (1979), 60 L.Ed.2d 805 justices six vot- States, quoting Hill v. United U.S. on a conviction based a ver- ed to reverse “illegal in by jury

dict rendered that was I would hold that when id. composition,” at 92 S.Ct. at 2168 felon, under excludable U.S.C. JJ., Stewart, (Marshall, Douglas concur- & 1866(c)(4) pursuant to the determination arguing that ring), strongly a dissent over by Congress enacting section made way preju- the defendant had no 1865(b)(5), on voir his status has concealed Id. illegality. diced jury in a criminal dire and served on a C.J., (Burger, joined by Blackmun at 2170 case, vacated when the the verdict must be JJ., dissenting). Rehnquist, & entry judg- error discovered before ment. The remand to the district court power court the gives Rule 33 the district hearing ques- limited to the should be for a “in the grant a motion for new trial was, fact, whether the covered tion 33, and justice,” interest of Fed.R.Crim.P. 1865.6 by the terms of section that such Supreme Court has noted long post-verdict inquiries proper are so Sentencing Acquitted B. Basis they are conducted within the strictures Conduct Tanner, imposed by Fed.R.Evid. 606. of distribut- convicted Holloman 2751. The 107 S.Ct. at above grams .199 sold to ing er- cocaine base —the discussion establishes that would be rights. Circuit has concluded split Com- civil The Fourth 5. The state courts are issue. State, Beasley Ala.App. required pare 96 So.2d in order that some "affirmative act” State, Tweedle v. 153 Tex.Crim. rights within the mean- civil to be restored Hermann, (1949); v. 283 218 S.W.2d 846 State 1865(b)(5). Hefner, ing United States v. of § (Mo.1955); Benson, 617 State v. 235 Or. S.W.2d 731, Cir.1988). I doubt the 842 F.2d 732 291, (1963); Ortega, 384 P.2d 208 with State v. present to re- present case would an occasion 312, (1966). generally See 77 N.M. 422 P.2d 353 question. The here was convict- solve the Freiling, Op.2d v. 22 Ohio Firestone 25, 1985, February and sentenced to one ed on (Ct.C.P.1963); Stagg Stagg, v. N.E.2d 91 years’ probation. year jail His with five parte 32 P.2d 856 Ex Bron- Mont. expired un- probation therefore would not have son, Tex.Crim. 254 S.W.2d 117 (or February February at the earliest til 25, 1990, concurrently). supra if it ran As noted government protests in its Brief there 6. The p. the felon the D.C. statute renders juror’s rights civil is no evidence that the had (Febru- ineligible year until one after that date Appellee restored. Brief for at 22. not been 25, 1991). February ary Defen- or Though the formulation strikes me as somewhat May so this inverted, was held in of dants' trial the district court could address the qualified juror apparently under would not have supra p. As noted the issue on remand. statute, were sufficient the D.C. even if that of Columbia does not seem to have a District satisfy requirement. procedure the federal formal for the restoration of a felon's Salmon, 948 F.2d v. States Calculating United Hollo- officer. the undercover v. States also United (D.C.Cir.1991); see .199 the of light level man’s offense (D.C.Cir.1992); Chaikin, Sentencing would, the under grams alone Sentencing Commission imprisonment of Guidelines, term fix his States United The Report computed 9, citing cases. Guide- court months. The 10-16 Annual Although the acts under- differently. mention specifically do not lines sentence possession-with- been of the has Holloman a defendant acquitted on which counts lying count, dealt of Guideline language intent-to-distribute the But acquitted. Boney cocaine base grams “all,” of 12.72 cer- 1B1.3(a)(2),particularly truck, district court under comprehend threw enough to tainly broad evidence, of found, by preponderance not are Sentencing judges generally acts. too, that cocaine possessed Holloman they of information kind in the restricted under conduct” “relevant it as treated limitation “No account. may take into (Holloman 1.3(a)(2) the Guidelines. of IB§ concern- the information placed on shall accuracy of the factual contest the does character, and conduct background, ing the The district court findings.) district court’s imposing of purpose ... for person of a involved added cocaine therefore 3661. 18 U.S.C. § sentence.” total counts—a possession distribution sentencing under it comes When Holloman’s determine grams 12.92 —to gov agree that the Guidelines, all circuits the sentenc- increased level. This offense by a conduct relevant prove ernment The court months. range to ing evidence, than rather of the preponderance months. Hollo- to 63 sentenced doubt. See reasonable beyond a that, de- understandably complains man (D.C.Cir. 862, 869 Burke, States possession of the being spite acquitted Sentencing Com 1989); 1990 if he less than sentence no charge, Report McMillan it, the mission sees As he Annual convicted. had been 79, 91-92, 106 this; they Pennsylvania, if permit do not Guidelines Jeopardy and Double S.Ct. do, they violate sen proof standard Fifth and Four- that this holds Process Clauses Due guilty A not process. government due tencing The satisfies Amendments.7 teenth govern appeals courts establishes us that other tells verdict element of here. each proved occurred has not approved what ment It doubt. beyond a reasonable offense level, offense determining the base that, more possibility rule out does sentencing instruct the Guidelines engaged not, the defendant likely than con- “relevant into account to take Mitchell, Helvering conduct. See “all drug offenses means duct,” which for 82 L.Ed. part same acts ... ... Assortment v. One (1938); United States scheme or common of conduct course 354, 104 S.Ct. Firearms, 465 U.S. of conviction.” offense plan Dowl (1984); see also lB1.3(a)(2). application U.S.S.G. § 342, 110 States, ing v. United that the Com- indicate to this section acquittal defendant’s despite to the added may be therefore counts misconduct.” out of that arising charges charge drugs involved in amount 1330, Fonner, F.2d 920 v. States guilty. United found the defendant which apply to do which Due demands of Process to the Fourteenth applicable reference I read Holloman's 7. V. Amendment, fed- cases. by Const. its terms not Amend. trials, inelegant reference as an criminal eral

645 Cir.1990). See, 855, id. at and did not articulate consti (7th in addition 1333 Coleman, tutionally-compelled doing reason for so. Fonner, v. 947 United States — at 852 n. 14. But Id. see United States v. denied, Cir.1991), cert. (10th 1424 F.2d 12, (D.D.C. Rodriguez, F.Supp. 741 13-14 U.S.-, 307 112 1990), (D.C.Cir.1991) aff'd, 946 F.2d 127 Rivera-Lopez, 928 States v. (1992); United (table). Cir.1991) curiam); Unit (11th (per F.2d 372 Duncan, 918 F.2d 647 (6th ed States v. widespread practice under This Rodriguez- v. United States Cir.1990); comports generally sys Guidelines with the Gonzalez, (2d Cir.1990); Unit 899 F.2d prevailing prior tem to the Guidelines. Dawn, v. 897 F.2d 1444 ed States Judges pre-Guidelines “very cases had Mocciola, v. Cir.1990); United States impose any sentence broad discretion” to Cir.1989); v. (1st United States limits,” statutory F.2d 13 “within the and “could Isom, 886 F.2d 736 (4th Cir.1989); United properly refer to ... evidence introduced Cir.1989); (3d Ryan, v. F.2d 604 States respect crimes of which defen [a] Juarez-Ortega, F.2d States v. v. acquitted.” States dant was (5th Cir.1989). (2d Cir.1972). Sweig, of these cases sus 454 F.2d 183-84 Six Funt, to a sentence. Five See United v. 896 F.2d tained enhancements v. Ber enhancements, (11th Cir.1990); United States six 2-level involved nard, (4th Cir.1985); 2D1.1, posses- 757 F.2d pursuant Guideline § Warden, Goldberg ex v. United States rel. an offense. Cole during of a firearm sion (3d Cir.), 1428-29; Duncan, man, 622 F.2d 60 947 F.2d at 871, 101 S.Ct. 652; Rodriguez-Gonzalez, F.2d at Bowdach, v. United States 561 F.2d 180-81; Dawn, 1449- 897 F.2d at (5th Cir.1977); United States v. 50; Mocciola, The de 891 F.2d at 16-17. Cardi, 519 F.2d (7th Cir.1975); acquitted fendants each case been Atkins, United States 480 F.2d drug using in connection with a a firearm (9th Cir.1973). This circuit had 924(c). See, e.g., Rod offense, 18 U.S.C. § in at least one reached a similar result riguez-Gonzalez, 899 F.2d at 179. The case, though adopt declined to and follow case, Isom, upheld sixth a 6-level enhance Sweig to its ultimate limits. 2B5.1(b)(2) (pursuant ment to Guideline § (D.C.Cir. Campbell, operating printing press) for a defen 1982). Reviewing that a courts believed dealing convicted of with counterfeit dant inevitably influenced would be obligations, after he had 18 U.S.C. § already anyway. It evidence he has heard acquitted charge on a of counterfeit practice reverse seemed better ing, 18 371. 886 F.2d at U.S.C. § disclosing candidly judge so influenced for cases, remaining the four two involved Of for the sentence. Pre-Guide- the reasons upward departures, Ryan, 866 F.2d at 608- relied on the different lines courts also 09; Fonner, 920 F.2d 1332. One of sentencing. proof applicable at standard of aggrega others —like this case—involved quantity separate tion of a of cocaine hedged Although in the the Guidelines charged in a count on which the re impose particular sen- courts’ discretion Rivera-Lopez, guilty turned a not verdict. tences, intended to con- the Guidelines were specify 928 F.2d 372. One did not permitting sentencing practice tinue the Juarez-Ortega, array situation it faced. of informa- courts to consider a wide 1B1.4; see also appeals tion, F.2d at 748-49. The one court of see U.S.S.G. § Still, creating pattern, with this the statute to break U.S.C. 3661.8 § (9th Cir.1991), Brady, did offense of conviction sets substantive Wallace, Judge permissible punishment. limit of so over a dissent Chief outer imposing purpose and consider for the 8. Which reads: appropriate section recodified placed sentence. That No limitation shall on the informa- concerning background, character and U.S.C. See U.S.S.G. tion enacted person background. conduct of a convicted of an offense § 1B1.4 which a court of the United States receive the the elements that jury the court told v. States See United 5G1.1. U.S.S.G. § offense possession-with-intent-to-distribute v. 609; States at United Ryan, 866 type some knowing possession of But at 16. Mocciola, cf spe- substance, — and a quantity,9 -, controlled 112 S.Ct. R.L.C., U.S. v. States 93- Tr. at 5/9/90 case, distribute. cific intent (1992). In this 1329, 117 L.Ed.2d con- on both instructed court also 95. The 20of statutory maximum faced Holloman possession. joint possession structive the distribution for imprisonment years’ this Boney on convicting By 21 Id. at 94. convicted. he was on which count Holloman), jury demon- the (but not count pre- this were 841(b)(1)(C). If U.S.C. § un- found the that stash its belief strated sentencing court could case, the Guidelines necessary quanti- of the truck was the by der sentence appropriate chosen the have jury use. “The personal not for ty and was underlying conduct considering Holloman’s this rationally found” that could though the [not] count even possession was base grams of 12.72 cocaine stash of guilty. With a verdict returned for was Boney’s use personal not for is difference place the Guidelines at at Holloman’s. consider court must sentencing count on this Thus, verdict if the 1195. preponderance by a proved if conduct in the by the evidence at all dictated with- a sentence evidence, render and must on a conclu- rested case, only have it could inclu- by the applicable range made in the possess the did not Holloman sion is reason conduct, there unless sion of that try government Were “stash.” extent, effect To this departure. for a which offense for tomorrow Holloman them is the interpret Ias Guidelines of the possession of element as an included in McMillan: described same way. Holloman stash, bar Ashe separate “a did not create there statute of the possession considering his says that penalty; separate for calling offense amounts conduct” “relevant stash as court’s the ... solely to limit operate[d] he something for which him for punishing penalty selecting a within discretion asserts, pro- which, Ashe he acquitted, it,” at was 477 U.S. already available range 2415-16, hibits. 2417. 84-87, 88, at agreement overwhelming light of Jeopar- Double that the argues Holloman after appeals before courts of the picture. Ashe complicates the dy Clause any con- Guidelines, the absence 1189, 25 the 436, 90 S.Ct.

Swenson, 397 U.S. Court, I Supreme trary indication principle (1970), extended 1B1.3(a)(2) Guidelines agree that Pearce, Carolina of North in this applied when not unconstitutional 717, 89 S.Ct. argument entails Holloman’s manner. Jeopardy Clause the Double may be defendant minor premise for prosecution against a second “protects of which conduct only for Finding punished acquittal.” after offense the same beyond a guilty found has been Dou- defendant in the component estoppel a collateral means “punishment” If doubt. reasonable Clause, held Ashe Jeopardy ble a sen- setting of in the any role “plays prosecu- a second prohibited Constitution argument puts the tence,” McMillan govern- if the a different offense tion adjusted be sentences allows rest—it an issue proof on to offer would have ment trial. proven at facts not prose- based in the first regarding which at 2418-19. guilty. U.S. of not “grounded its verdict” cution the defendant to be that seems (internal distinction at 1194 acquitted for the being sentenced district omitted). In this case the quotation {i.e.,only drugs sentenced quan- that the clear since made court has This held), Boney drugs drugs also the sold or he drugs relevant tity involved weight. not over jury. for the sentencing an issue and is not Patrick, n. 5 agree with case, did The district resolve (D.C.Cir.1992). does not That at 12-13. Tr. that verdict. 11/21/90 quantity of dispute is over here tencing range subsequent available at a constitutionally-per- Rather, the conduct. Indiana, by the trial. sentencing range is set Cichos missible (1966); see also of which defining the offense statute Westen, convicted, supra, the actual 78 Mioh.L.Rev. at 1021-22 while was defendant range is determined & n. 66. sentence within es- information reference to other

part by rate, disregard I cannot At the evi- preponderance of tablishing, by a McMillan, Court’s decision broader in other dence, involvement the defendant’s weight implications, and the accumulated conduct. relevant twenty years’ from our sister of decisions nicety conceptual clearly require, that this recognize I The Guidelines circuits. who, person like Hollo- allows, sentencing on a might clearly be lost and McMillan not relief when the man, sigh of uncharged breathes account con- courts to take of realiz- is announced without guilty verdict proven by preponderance of duct may imprisonment his term of ing sentencing evidence. To bar if, at sentenc- “increased” acquitted nevertheless considering from conduct responsible him finds ing, the court proven be anomalous. also can be so Jeopar- Double held, That the misconduct. same never indeed Supreme Court has reprosecution him from dy protects appellate Clause court has as I am aware no so far count, acquittal or that his acquitted held, Jeopardy Clause Double ever potential sen- his maximum looking means that sentencing courts forbids solely on basis determined tence will be underlying an offense which conduct he was convicted logic the count which acquitted. The hard defendant My analysis, comfort. of little analysis doubtless differing-burdens-of-proof rests somewhat my colleagues’, also accepted by Supreme Court has been weight” the Su- “special uneasily contexts, ten other as well other acquittals in its preme has accorded Court appeals in this context. See su- courts of jurisprudence. Unit Jeopardy See Double agree I that we should pra p. 645. DiFrancesco, 449 U.S. ed majority’s States join the reject today, and so underlying conduct holding that the use of cases; parte Ex (1980), collecting see also “relevant conduct” acquitted count as Wall.) 163, 173, (18 21 L.Ed. Lange, 85 U.S. lB1.3(a)(2) purposes of sen- under § If, has commentator as one Jeopar- the Double tencing does violate indicated, as the Court has suggested, and dy Clause. 11, 101 DiFrancesco, at 130 n. guilty verdicts are n. at 433 respect for weight out of given special acquit in the teeth jury’s prerogative to Westen, guilt, overwhelming evidence of Petitioner, COOPER, Denver S. Jeopardy: Re Double The Three Faces of Appeals on Government

flections Sentences, Criminal Mioh.L.Rev. RAILROAD STATES UNITED Drubel, & Toward Westen BOARD, RETIREMENT Jeopardy, Theory Double A General Respondent. 81, 122-31, then the Sup.Ct.Rev. No. 92-1080. formalizing potential use Guidelines’ sentencing may Appeals, Court of acquitted conduct jury’s significant erosion Circuit. worked a District of Columbia hand, the the other dispensing power. On Argued Sept. that when to have indicated seems Court 23, 1992. Decided Oct. only to the speaks aspect of a verdict receive, a defendant sentence Dou question guilt, open the

leaves does not limit sen- Jeopardy Clause

ble notes my (1990). As for which include acts meant to mission be out, difference point colleagues convicted. defendant at trial proof the standard tween 2; note application back- 1B1.3 U.S.S.G. § appeals courts of ten sentencing has moved ¶ weight commentary ground Guidelines, sen under the to conclude con- uncharged criminal involved drugs “misconduct may consider judges tencing underlying dismissed in conduct duct and

Case Details

Case Name: United States v. Jermaine Boney, United States of America v. Donald A. Holloman

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

Date Published: Oct 13, 1992

Citation: 977 F.2d 624

Docket Number: 90-3270, 90-3281

Court Abbreviation: D.C. Cir.