United States v. Tyrone B. Diggs, United States of America v. Garrett J. Keys, United States of America v. Percy Floyd, (Two Cases)United States v. Tyrone B. Diggs, United States of America v. Garrett J. Keys, United States of America v. Percy Floyd, (Two Cases)
Lead Opinion
We have here consolidated appeals
t
On February 11, 1972, about 9:30 a. m. the District of Columbia National Bank branch on Wisconsin Avenue was robbed by two armed men. A woman in a store across the street saw two men, one wearing a ski mask and the other with his face covered, leave the bank and enter a getaway ear, a green Chevrolet, driven by a third man. Earlier, about 9:10, another witness had seen two black men some three to four blocks from the bank as they were parking a white Cadillac car with a red leather panel on the door. She testified that about 10:15 she saw that a green car had knocked over some trash cans near her neighbor’s driveway and that the Cadillac was gone.
The Government’s evidence at trial developed that the taller of the two robbers with gun in hand was carrying an attache case and was wearing a gray ski mask, a dark raincoat, gloves, brown or tan trousers and brown “hush puppy” shoes. He had gone to each teller window, gathering all currency and coins which he placed in his attache case.
An audit disclosed that the robbers had taken more than $5,000, including $400 of “bait money.”
Word of the robbery reached the Washington Field Office of the FBI at approximately 9:30 a. m. and came to the notice of Special Agent Berry. The latter, with some 22 years of experience in the Bureau, had already been developing evidence involving appellants Diggs and Floyd as to other crimes, indeed only a fortnight earlier, Berry had arrested Diggs for his part in another robbery in which his distinctive red and white Cadillac had been utilized in the transportation of the avails of that robbery. Agent Berry was well aware that robbers might abandon a getaway car and switch to another waiting vehicle. Berry also knew that Diggs “hung out” in the 2200 block of M Street, N.E., where he had seen both Diggs and Floyd in the recent past. Taking Special Agent Mowrey with him, Berry, in an unmarked Bureau car, headed for that destination.
Berry produced his identification, and with guns drawn, the agents approached the Diggs car and ordered the three occupants to raise their hands above their heads and to keep them there.
The agents noticed that the rear seat passenger, Keys was wearing a black trench coat and that next to him was a short denim jacket. In plain view at Keys’ feet was a rust-colored brief case. Seeing that the car’s occupants conformed to the monitored descriptions and with their reasonable suspicions confirmed, the agents then placed all three appellants under arrest. Search incident to that arrest developed that both Keys and Floyd possessed .38 caliber revolvers. Contemporaneous search of the brief case revealed more than $5,000 in cash, and in due course, the bank’s bait money was identified.
That the agents were undertaking the steps as described for the purpose of investigating their powerful suspicion
The courts have considered other aspects of situations such as had here been presented, see, e. g., Young v. United States,
When the agents saw what Floyd was wearing, what Keys was wearing, when, in plain view, they saw the brief case and the denim jacket, ample probable cause for the arrest existed. United States v. Robinson,
We may, perhaps definitively, terminate further present treatment of appellants’ contention that the search and seizure here had been invalid,
II
Floyd’s Contentions
A
Quite apart from the bank robbery situation, Floyd presents another problem in his appeal No. 74-1010. Floyd had filed a written motion to dismiss the indictment which stemmed from another robbery, next to be treated. He contended that the jury selection system in the courts of the District of Columbia had improperly discriminated against young adults.
On November 3, 1971, three men armed with pistols entered the Minnesota Market in Southeast Washington. “Everybody go back, a robber ordered. An employee with a pistol pointed at his head was dragged to the front of the store by Floyd, positively identified at trial by various witnesses, including a young woman whose boy friend “ran around” with Floyd. This employee’s wallet containing $18 was taken from him, and he was ordered to open a cash register. When it developed he was unable to comply, the robbers seized as much money as possible and fled from the store. The jury found Floyd guilty of two counts of armed robbery and four counts of assault with a dangerous weapon.
Floyd’s indictment by a grand jury sworn in on October 6, 1971, had charged him with participation in the robbery and assault with a dangerous weapon, just described. His motion, first, to dismiss that indictment, and later, his motion to strike the petit jury panel, had been based on his claim that there had been unlawful discrimination against young people in the District of Columbia compilation of eligible jurors.
Through an expert witness, he sought to establish by a mathematical test, the
The Government then presented various witnesses including the Director of Data Processing at the Superior Court who explained the process by which all jury panels for the District of Columbia courts were selected. Unlike the course followed elsewhere, 28 U.S.C. § 1863(b)(2) expressly provides that
The plan for the District of Columbia may require the names of prospective jurors to be selected from the city directory rather than from voter lists.
Utilizing a computer program, the data processing unit had selected some 60.000 names chosen at random from the Polk Directory for the District of Columbia. The process so begun was further refined, when a group of people, some 12.000 in number selected at random, had been recipients of questionnaires, prepared by the Jury Commission. From the responses, that Commission determined whether people should be considered eligible, disqualified, exempt or excused, and from among those deemed eligible, jury panels each month were selected by the computer on a random basis.
The United States District Court, pursuant to 28 U.S.C. § 1863, adopted a MODIFIED PLAN FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR THE RANDOM SELECTION OF GRAND AND PETIT JURORS,
with explicit directions, inter alia, for the compilation of a master jury wheel and the use of the R. L. Polk Company’s city directory. The Plan conferred authorization, subject to the supervision and control of the Chief Judge, to the Jury Commission, to adopt a selection procedure which the Court has found “shall result in the drawing of names proportionally representing a cross section of all parts of the District.”
The Jury Commission is required to prepare an alphabetical list of names drawn, not to be disclosed except on order of court or- pursuant to 28 U.S.C. §§ 1867 and 1868. Thereupon, if the Commission shall determine that to supply court jury requirements, for example, for 18 months, it will need 60,000 names in the master wheel, and if there is a total of 600,000 names in the R. L. Polk file, a “quotient” formula must be devised. Thus the total will be divided by the number of names required, so that, as here, if the quotient be 10, every tenth name would then be taken for the master wheel.
We interrupt our analysis to observe that there was no proof of purposeful exclusion of any cognizant group, whether of youth or of any other (presently pertinent) coherent, identifiable class, see generally the discussion in Ware v. United States,
Rather, after the extensive hearings which had been conducted, the judge could see that Floyd at most had
The simple fact is that the Jury Selection Act provides no criteria for the identification of young people as a class. It may even be doubted that “young people” constitute a sufficiently coherent group to require their selection as part of a representative cross section of the community. “[Cjlaims of exclusion of the young from juries have met with little success in the federal courts,” Hamling v. United States,
We find no error whatever in Judge Bryant’s denial of Floyd’s motion to dismiss the indictment and his denial of the motion to strike the jury panel.
II
B
Floyd here has further contended that the trial judge erroneously declined to permit his counsel to inquire whether or not the prospective jurors “have had any dealings or experience with black persons that might make it difficult for them” to sit in judgment on this case.
After counsel saw the prospective jury, no effort was made by detailed questions to disqualify any prospective juror. On the contrary, Floyd’s counsel did not even exhaust the peremptory challenges to which he was entitled. It might be assumed that Floyd took his chances with the jury as selected.
It now is being argued that we are bound to reverse, counsel relying upon Aldridge v. United States,
From our post-trial vantage point, it is easy enough to say that the judge could readily have asked counsel’s question despite its imperfection. The judge himself could have reframed the inquiry, but his failure to do so is not fatal. Floyd had made no effort whatever to establish any such factual situation as can be noted in Aldridge and Ham. Nothing was shown actually to cause the judge to inquire into possible prejudice against Floyd because he was black. It would seem that some development of a situation of that sort is essential since the Court itself has so read those cases. See, e. g., Hamling v. United States,
Such a limiting evaluation of the significance of the language quoted would seem the more cogent if we consider
Floyd’s reliance upon the Aldridge and Ham cases definitely is misplaced. We are satisfied that the views we have expressed correctly reflect applicable law which indicates the course to be followed here. Other circuits after consideration of the problem have taken a similar position. See, e. g., United States v. Walker,
II
C
We now reach Floyd’s contention that the trial judge fatally erred when, in the absence of counsel the judge undertook to respond to the jury’s request for further instructions. Details presently will be discussed.
Of course, it is so that an accused is entitled to be present at every stage of his trial, Fed.Rule Crim.Proc. 43. Especially since Shields v. United States,
However, a failure to comply with the requirements of Rule 43 does not call automatically for reversal. The situation requires consideration in light of Fed.Rule Crim.Proc. 52(a), and so there “may in some circumstances be harmless error,” Rogers v. United States, supra,
by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise, Id.
The judge had responded to the jury’s inquiry in the absence of the accused and his counsel. Moreover, the judge had quite erroneously failed to instruct that the jury had no sentencing function and should reach its verdict without regard to what sentence might be imposed. The cumulative errors were seen to be
We here take up what happened in the instant case. The jury had retired to consider its verdict at 4:30 p.m. on April 5, 1973. At six p.m., no verdict having been reached, the jury was released with directions to resume deliberations at 9 a.m. the following day, and it did so.
On April 6, 1973, at 4:37 p.m., and before the jury was brought in to the court room to render its verdict, the judge informed the parties that earlier, and in their absence, there had been a communication from the jury.
THE COURT: When the jury came back from lunch, I received the following note:
We have reached a decision on all counts with the exception of one juror. Would you give us further instructions on the one holdout. Thank you. Peter J. Long.
I replied:
I regret that I cannot give you any instructions on the above. All I can say is that you should continue your deliberations. You have been in session for four and a half hours which is not unusually long. If I discharge the jury without a verdict being reached one way or the other, the case will have to be retried. That was it. I am going to make that a part of the record. Except for asking for some of the exhibits, that is the only message we got.
When the judge in the presence of all defendants and their counsel concluded the foregoing recitation for the record, no objection was raised by any of the attorneys. There was no complaint that the jury had been coerced into agreement during the afternoon’s deliberations. Seventeen days later, Floyd’s counsel alone reverted to the episode in connection with Floyd’s motion for a new trial which the judge denied.
Floyd now argues that had his counsel been present some two or more hours earlier when the judge, as above, replied to the jury’s request, counsel would have been able to note an objection. Yet, when, before the return of the verdict, counsel had been informed as to just what had transpired, she registered no objection. She certainly had been aware of the various counts and of the evidence in support of each charge. Even after the verdict had been returned, she made no comment.
It is clear enough that the trial judge should not have communicated with the jury in the absence of the defendants and their counsel. Even so, in light of the permissible “harmless error” considerations open to us pursuant to Rogers v. United States
Floyd insists that the reply to the jury’s request for instructions was coercive. That reply, set forth supra page 18, is completely factual, it can be seen, down to the last sentence wherein its vice is said to lié. The judge had not suggested what verdict should be returned, indeed the jury had not indicated, “one way or the other” just what “decision” the jurors had reached. We must read the excerpt “have to be retried” as an inadvertence,
The statement that some other jury would have to decide the case if thisone could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was surplusage; if they did not know, this information, far from being coercive, would have had the effect of reducing the pressure on them to reach a verdict. 25
In Fulwood, we concluded that the remarks of the judge were nonprejudicial and noncoercive. We take the same position here.
We find no merit whatever in Floyd’s claim that he was entitled automatically to a mistrial on the ground that the jury had made an unsolicited disclosure of its numerical division. As authority, Floyd points to Brasfield v. United States,
Substantial authority runs against Floyd’s claim. See, e. g., United States v. Jennings,
We find no error in the trials of any of these appellants.
CONCLUSION
We turn now to various problems involving the sentences imposed upon each of the appellants.
Taking up, first, United States v. Floyd, No. 74-1010, the jury on November 22, 1972, returned its verdict of guilty on two counts of armed robbery and four counts of assault with a dangerous weapon. We vacate the latter convictions for the ADW counts were lesser included offenses under the armed robbery counts. United States v. Johnson,
We let stand the convictions on two counts of armed robbery, for there were two distinct offenses perpetrated at the Minnesota Market. One involved the property of the store owners as discussed in our text, pages 6 and 7, supra. We do not view this episode as a “unitary transaction,” cf. United States v. Hopkins,
Different treatment is required in United States v. Floyd, No. 74-1011, where the jury returned guilty verdicts on two counts of bank robbery under the federal statute, followed by concurrent sentences of 5 to 20 years on each count; and two counts of armed robbery under the D.C.Code, for which concurrent sentences of 10 to 30 years on each count were pronounced. See footnote 1, supra.
In United States v. Canty, 152 U.S. App.D.C. 103, 115,
The crime is bank robbery, and the statute is entitled “Bank Robbery and Incidental Crimes.” There is no doubt here that only one transaction took place and that only one bank was robbed. Compare United States v. Hopkins. [Supra ]
Canty rejected the Government’s contention that the robbery of each teller could predicate a separate taking within the language of 18 U.S.C. § 2113(a). Accordingly, as in Canty we must vacate one conviction of bank robbery. Moreover, we vacate one conviction of armed robbery under the D.C. Code. See footnote 1, supra. We vacate the sentences on one count of bank robbery and on the remaining count of armed robbery and remand for re-sentencing by the district judge.
Passing to United States v. Keys, No. 73-1750, it will be recalled that Keys and Floyd had been charged on identical counts respecting the bank episode. Similarly they were found guilty, with sentences as to Keys as will appear in our footnote 1, supra. One conviction of bank robbery and one conviction of armed robbery will be vacated just as has been directed respecting Floyd, supra. Again, as in Floyd’s case, the matter of re-sentencing will devolve upon the district judge pursuant to United States v. Shepard, supra.
Respecting Diggs, found guilty in No. 73-1667 of two counts of robbery under the D.C.Code with sentences to concurrent terms of 3 to 9 years on each count, one conviction will be vacated, and the other is affirmed. His participation only as driver of the getaway car seems clearly to have led the jury to return not guilty verdicts as to all other counts.
Since it is not possible for us to penetrate the degree to which the sentences actually imposed on the respective appellants had been affected by considerations stemming from the counts we have vacated, we remand for possible re-sentencing in light of what here has been said.
Notes
. The Keys appeal in No. 73-1750 followed his convictions on two counts of bank robbery
The Diggs appeal in No. 73-1667 followed his convictions on two counts of robbery with concurrent sentences of 3 to 9 years on each count.
Floyd’s appeal in No. 74-1011 followed his convictions on two counts of bank robbery and two counts of armed robbery with sentences of 5 to 20 years on each of the two bank robbery counts and 10 to 30 years on each of the armed robbery counts, such sentences to be served concurrently with each other, with a sentence previously imposed by the United States District Court for the Eastern District of Virginia and with a sentence previously imposed by a state court in Virginia. And see the correlation of the foregoing with the sentence imposed following a separate conviction in No. 74-1010, infra note 6.
The Government at pre-trial dismissed certain ADW counts and the jury was instructed to disregard two other lesser included ADW counts if it should find the armed robbery charges had been proved. See United States v. Belt,
. After that case had been retrieved from the Cadillac, it was shown to a teller who immediately recognized it and while the case remained closed, described in detail the inside of the case and its contents. When opened, the inside and the contents were found to conform precisely to the description the teller had given in advance.
. See Judge Friendly’s opinion in United States v. Riggs, 474 F.2d 699, 703-705 (CA 2 1973).
. The course here followed by the alert perceptive FBI agents reminds us of the factual de
When we take account of the exigent situation confronting these agents and the facts of which they had knowledge as well as those creating the basis for their reasonable suspicion, probable cause was clear, and the course pursued by the agents was lawful. It makes little difference where the officers seized two .38 caliber revolvers from Floyd and Keys whether we are talking about a permissible “frisk” incident to an investigative stop, as in Terry, supra, or whether there has been a “lawful” arrest. See United States v. Robinson,
. On the same basis he later made an oral motion to strike the petit jury. However, he used only four of his ten peremptory challenges, and in any event has failed to indicate any possible prejudice.
. Floyd following his convictions in this case was sentenced to serve 8 to 24 years on each count of armed robbery and 3 to 10 years on each count of assault with a dangerous weapon, these sentences to be served concurrently with each other and with a sentence previously imposed by a state court in Virginia but consecutively to sentences already imposed by the U. S. District Court in Virginia and by the District Court in the bank robbery case, No. 74-1011, see footnote 1, supra.
. 28 U.S.C. § 1862 provides that no citizen shall be excluded from service as a grand or petit juror “on account of race, color, religion, sex, national origin or economic status.” The statute makes no mention of the factor of “age.”
. Government Brief, pp. 40 et seq.
. See note 5, supra.
. Floyd’s expert conceded on cross-examination that his analysis had not taken account of persons excused from jury duty by the court and that his analysis had been based on the relatively small numbers of responses received by the Jury Commission from the large number of questionnaires sent out. Taking into consideration such additional factors, one exhibit showed the distribution of jury venires by age, so that for the group 21-24, the actual distribution would be 10.2 per cent against an expected 14.3 per cent, and for the group 25-29, the actual distribution would be 10.6 per cent against an expected distribution of 14.7 per cent. Jury Commissioner Carusi testified that certain categories of exclusion from jury duty tended to apply more importantly to those between the ages of 21 and 30. These included persons in the armed forces, women caring for children under 10 years of age, practical nurses, students away at college and the like. Mr. Carusi emphasized that the Jury Commission never excused young people in the 21-30 age group solely because of age, indeed, as the law then read, age was a factor in the Commission’s operations only to the extent that persons under 21 were ineligible and those over 70 could be excused upon request.
. The Court has made it clear that even though petit juries must be drawn from a source fairly representative of the community, there is “no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Taylor v. Louisiana,
The Court compendiously has stated for us the governing rule that
the jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.
Id., at 538,
It is evident that after full hearings, the judge here had concluded there was no systematic exclusion of young people as a distinctive group. He realized that there had been no purposeful failure to regard “youth” as a cognizant classification.
. See generally: United States v. Olson,
. Counsel on brief has told us that “the record clearly shows no other questions were asked involving specifically any potential racial prejudice.” Note that Floyd’s counsel did not seek to elicit possible bias against Floyd because he was black. Cf. United States v. Grant,
. “We need draw no conclusion concerning whether or not it was ... for the purpose of creating the basis now asserted for objecting to the jury’s composition,” as Mr. Justice Rutledge put it in Frazier v. United States,
We here will indulge in no speculation. Rather, we can say with reasonable certainty in light of the overwhelming evidence arrayed against Floyd, there has been no showing that he suffered prejudice here.
. Not unlike the manner in which the issue had arisen in Aldridge and Ham, supra, was that presented in King v. United States,
. Justice Marshall indeed had concluded, in Ross,
To deny this petition for certiorari is to see our decision in Ham v. South Carolina stillborn and to write an epitaph for those “essential demands of fairness” recognized by this Court 40 years ago in Aldridge.
Id.,
. We may profitably take account of the opinion in United States v. Compagna,
while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity.
Cf. United States v. Graham,
. See United States v. Glick,
A not entirely dissimilar situation arose in our own case of United States v. Patrick,
at facilitating a compromise verdict by soliciting information that would assure those dissenting jurors, who would not otherwise have acquiesced, that appellant would receive treatment. (See, id., note 9).
In Patrick, the jury had informed the court that it had been “unable to reach a verdict— ten find [appellant] guilty, and two not guilty by reason of insanity.” Id.,
. Cf. Ware v. United States,
His trial counsel, though present, found no basis for objecting to what the court did, nor for asking that it do more. He made no objection to proceeding in Ware’s absence.
. As the Fourth Circuit put it where an objection was first raised after the verdict:
Finally, the conclusion of harmless error is confirmed by the failure of the appellant through his counsel, to raise any objection until after the verdict . ... Had it appeared to the appellant or his counsel that the action of the District Court involved any prejudice, objection would have been promptly entered by the appellant and not tardily raised after verdict.
United States v. Arriagada,
. The conclusion we reached in Walker, text supra, has not gone unnoticed, see, e. g., United States v. Amagada, supra, note 20; United States v. Schor,
. Rogers v. United States,
. See note 21, supra.
. Of course, a mistrial need not “require” a retrial. Witnesses disappear; other considerations often affect the prosecutor’s discretion; the problem may involve a “close and difficult issue of coercion in fact under the surrounding circumstances.” That was the situation (but not present here) in United States v. Thomas,
The Court saw “coercion” in United States v. Jenkins,
. Our opinion there, written by Judge (now Chief Justice) Burger, approached the issue taking account of the Allen charge, Allen v. United States,
Nothing of the sort is shown on our record where the evidence of guilt is so compelling. Moreover, unlike Thomas, the jury had not declared itself hopelessly deadlocked. Indeed, were we to speculate in terms of plausibility, whatever problem had disturbed the jury did not involve Floyd at all, only Diggs. Both Floyd and Keys who actually entered the bank were found guilty of bank robbery, 18 U.S.C. § 2113(a), and armed robbery, 22 D.C.Code §§ 2901 and 3202. On the other hand, as to Diggs, the driver of the getaway car, who had not entered the bank at all, the jury returned its verdict of not guilty of bank robbery and of armed robbery. He was found guilty only of robbery as defined in 22 D.C.Code § 2901, subject in any event to treatment as a principal, 18 U.S.C. § 2, D.C.Code § 22-105; cf. United States v. Parker,
. The fact that some of these cases in some degree involved versions of the Allen charge does not impair the weight we are inclined to give to them. See n. 25, supra.
. Since Floyd’s appeal in No. 74-1010 was consolidated by this court’s order with his appeal in No. 74-1011, we have followed the format of his counsel’s brief, discussing the jury composition claims in our Part II-A.
. See United States v. Spears,
. Compare our present treatment with the important discussion in United States v. Caldwell, supra, slip opinion page 67 with pertinent footnotes and page 68 where the federal convictions were vacated and re-sentencing was to be predicated upon certain nonfederal convictions. The option discussed in Caldwell, it would seerti, readily may be reconciled with
. “Thus, if the United States Attorney elects to combine local offenses with federal, he must do so in the knowledge that the trial will be conducted under federal evidentiary law.” United States v. Belt, supra,
. Bryant v. United States,
Dissenting Opinion
(dissenting).
Although the information contained in the majority’s statement of facts is highly suggestive of appellants’ guilt, very little of it was available to the special agents at the time they conducted their armed approach to appellants’ automobile.
In the interval elapsing between his departure from the FBI office and his approach on the Cadillac occupied by the appellants, Special Agent Berry received little information to support his intuition that either Floyd or Diggs, or both, were involved in the robbery. In the five or more radio transmissions he and Special Agent Mowery listened to, one robber was apparently described, initially, as (1) between six feet, two inches and six feet, four inches in height, and (2) was finally described as six feet tall. The three police reports described the second robber, successively, as (1) “tall”, (2) six feet in height and, again, (3) as six feet. The contemporaneous FBI radio reports, however, stated that the second robber measured approximately five feet, eight inches. Mowery recalled (and the transcript of the Police transmissions indicated) that the shorter robber was first represented as being six feet tall, but that this description was “refined” in later reports, so as to portray him as five feet, eight inches in height. Berry recollected, on the other hand, that “from the first transmission, one was tall and one was short, a Mutt and Jeff type of description.” Berry further testified that he knew Floyd to be shorter than five feet, eight inches.
When the Cadillac appeared, carrying three passengers, the driver began to park. The special agents pulled alongside the Cadillac, as it had “just about practically stopped”. Drawing their guns before leaving their automobile, the special agents approached the Cadillac, told the driver to turn off the ignition, and ordered the occupants to keep their hands in sight. It is patent from the record that only the driver, Diggs, was clearly visible at the time the special agents came alongside the appellants’ automobile. Moreover, Berry recognized Floyd only as the agent exited from his own automobile with drawn gun, for, as previously discussed, the ambiguous radio reports had not provided additional information sufficiently accurate to identify the appellants. While reports correctly described the getaway car as a green Chevrolet, Berry testified that he was not misled by this description, since he had expected the robbers to change cars. Referring to Floyd and Diggs, Berry stated: “If they came back there in that car, I was going to stop them . ” Finally, it should be noted that neither agent testified to any suspicious activity on the part of Diggs or the other occupants of his automobile, as they drew near the agents and Diggs started to park his vehicle. It is against this factual background, then, that this case must be analyzed.
As one commentator has stated the problem, the “protean variety” of the situations with which the fourth amendment deals
is mindboggling; each situation bristles with considerations and demands that are “not easily quantified and, therefore, not easily weighed one against the other”, and it seems “too dogmatic” and improperly insensitive to the practical complexities of life to categorize or pigeonhole situations for the purpose of enforcing a discipline of rules upon the richness of events. But if some discipline is not enforced, if some categorization is not done, if the understandable temptation to be responsive to every relevant shading of every relevant variation of every relevant complexity is not restrained, then we shall have a fourth amendment with all of the character and consistency of a Rorshach blot.
Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 375 (1974) (hereafter Amsterdam).
One of the most formless areas that the Supreme Court has sought to define
In Adams v. Williams,
Terry, it is said, creates three categories of street encounters between the law enforcement officer and the individual: simple conversation, which is always permissible; “investigatory stops”, which require reasonable suspicion of criminal activity; and “arrests”, requiring probable cause. Any attempt to expand this number, or to “recognize simply the principle that increasing degrees of restraint require increasing amounts of justification” must run aground on the fact that “any number of categories, however shaped, is too few to encompass life and too many to organize it manage-ably.” Amsterdam, supra, at 376-377.
In my view, the facts of this case demonstrate neither probable cause for an arrest nor reasonable suspicion of criminal activity under the doctrines of Terry and Adams, respectively; hence, I agree with the majority that a characterization of the agents’ actions, either as an arrest or as a “forcible stop”, is unnecessary to the decision of this case.
Since probable cause to arrest the appellants did not exist under the circumstances of this case, the next inquiry must be whether the special agents had “constitutional grounds to insist on an encounter, to make a forcible stop,” of appellants. Terry v. United States,
It is unquestioned that, during the entire time the appellants were under the observation of the special agents prior to their being seized by the latter, the appellants’ conduct was completely innocent in its outward aspects. It follows that the seizure of appellants was not warranted under the Terry doctrine.
The information upon which the officers acted in making their seizure of the appellants was restricted to that known to Special Agent Berry and to that obtained from radio transmissions from the F.B.I. and the Washington police. As already detailed, Berry’s personally obtained information concerning appellants was wholly insufficient to identify them as the perpetrators of the bank robbery; thus, his naked hunch that the appellants were the robbers, combined with the contradictory and confusing descriptions of the robbers received from the radio broadcasts, could not reasonably have served to cast any substantial suspicion on the appellants.
In Adams v. Williams, Justice Rehnquist, speaking for the majority, said:
Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.407 U.S. at 147 ,92 S.Ct. at 1924 .
In my opinion, the deficient nature of the information possessed by the special agents mandated further investigation by them before they undertook to seize appellants at gunpoint. As stated in Terry, the issue is “whether in all the circumstances of this on-the-street encounter, [the appellants’] right to personal security was violated . . .”
To my mind, the action of the majority in upholding the seizure and the subsequent search in issue here is extreme in its implications; that, though not intended as such, their decision on this point is the judicial equivalent of “burning down the barn to kill the rats in it.” I suggest that, if the people are to con
Thus, I urge that the evidence obtained by the special agents after the accomplishment of their invalid seizure of appellants was “tainted” and, therefore, not admissible against the appellants at the trial of their case. Wong Sun v. United States,
The Voir Dire Issue
The majority has correctly pointed out that, once the trial judge indicated he would not permit the proposed question regarding potential racial prejudice to be asked, appellant’s trial counsel made no effort to preserve the issue. The record does not reflect whether it was the form or the subject matter of the question which the court found to be objectionable. In the absence of an objection, the court was deprived of a final opportunity to reconsider the question tendered by defense counsel or to entertain an alternative question relating to racial prejudice. However, in King v. United States,
the judge’s refusal to put counsel’s question to the jurors was plain error affecting substantial rights. Such errors may be noticed although they were not brought to the attention ■ of the court. Rule 52(b) F.R.Crim.P.
In King, counsel had gone so far as to withdraw his requested question.
The majority opinion suggests that since appellant’s counsel did not exhaust his peremptory challenges, it “might be assumed that Floyd took his chances with the jury as selected.” The majority’s reliance on Frazier v. United States,
It cannot be doubted that we are dealing with a right that is of utmost importance to the integrity of the jury system, for the opportunity to ascertain potential
The import of the majority’s decision today — that only when a criminal defendant establishes that the potential for racial bias is accentuated by the circumstances of his particular case is he entitled to inquire into the veniremen’s racial prejudices — does not seem to me to be in line with the spirit of the Supreme Court’s holdings in Aldridge and Ham v. South Carolina,
When the matter sought to be explored on voir dire does not relate to one of those recognized classes, it is incumbent upon the proponent to lay a foundation for his question by showing that it is reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp.
Racial bias is one of those “recognized classes” of matters which, as the court thus implied, does not require a special foundation, as a condition precedent to the right to make inquiry.
Justice Marshall, dissenting from the denial of certiorari in Ross v. Massachusetts,
Nonetheless, on remand, the Massachusetts court read our decision in Ham as limited by the particular circumstances of that case — the trial of a civil rights worker in the South. The State court found that petitioner, unlike Ham, was not likely to be a “special target for racial prejudice” and, therefore, that the trial judge did not err in refusing to make the requested inquiry.
This distinction is supported by neither logic nor precedent.
* * * * * *
The Aldridge Court was not concerned with whether petitioner was unpopular in the community — a special target of prejudice — but rather with the potential racial “bias of the particular jurors who are to try the accused.” [283 U.S.] at 314 [ 51 S.Ct. 470 ]. The Court did not rely on any particular circumstances to justify its requirements other than the fact that “the possibility of such prejudice [against Negroes] is [not] so remote as to justify the risk in forbidding the inquiry. Ibid. Nor did the Court purport to limit its holding to any region because the “question is not . the dominant sentiment of the community . . . ” Ibid.
Naturally, the denial of certiorari in Ross is not in the nature of an affirmance, and is certainly not binding on us.
I share the majority’s concern about mandating a new trial on this issue; defense counsel was indeed lax in pressing her request for inquiry into potential jury bias. But a reading of the Supreme Court’s holdings in Aldridge and Ham, this Circuit’s decisions in King v. United States, supra, and United States v. Robinson, supra, and the rulings of other Circuits on this subject makes it plain that we should not require a showing that a criminal defendant is a “special target of prejudice” before permitting his inquiry into jury bias.
I respectfully dissent.
. Agents of the F.B.I. “may . . make arrests without warrant . . for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” 18 U.S.C. § 3052 (1969). The requirement of “reasonable grounds” is equivalent to the Fourth Amendment’s requirement of “probable cause.” Henry v. United States,
. Of course, no description of Diggs was included in the reports since, as the “getaway man”, he did not enter the bank.
.
To constitute an arrest there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.
.
. Assuming, arguendo, that it is necessary to determine whether the agent’s conduct constituted an “arrest”, it should be emphasized that:
[T]his is a decision on the rights of individuals and the duties of government, and not an abstract exercise in definition. In dealing with words there is always a temptation to allow them to become separated from their objective correlatives in the everyday world, and to treat them as if they have, or ought to have, one single simple meaning, unaffected by the contexts in which they occur and divorced from the world of things and events which give them their content and justification.' * * * “Arrest” is just such a word * * *.
United States v. Bonanno,
Thus, rather than relying on a mere definition to determine whether a “stop” or an “arrest”
It is obvious from all the facts in this case that the special agents’ conduct in drawing their guns constituted “the ancient instinct of a peace officer to bring the apparent transgressor to stand — i. e. to place him in an effective state of arrest.” United States ex rel. Robinson v. Fay,
“Focusing the inquiry squarely on the dangers and demands of the particular situation” at hand, and “in light of all exigencies of the case”, Terry, supra,
. This may not have been the case, as the testimony adduced at the Motion to Suppress hearing contained at least one significant gap. When Berry was questioned on cross-examination as to the basis for his “hunch”, the following exchange occurred:
Q. Yes. All right. And this suspicion was based upon your knowledge that Floyd had been released from the penitentiary and was in the Washington, D.C., area at the time, and that he had in the past been involved in bank robberies; and that during the month of January of the same year, you had occasion to be involved in an arrest of Tyrone Diggs regarding another bank robbery in the District of Columbia area?
A. That’s correct. And I knew that — do you want some more?
Q. Yes, I would like to know exactly what was in your mind. That’s what the Court has to rule on.
MR. ADELMAN: Your Honor, I object to these speeches.
MR. DIETZ: I am just trying to get the information, your Honor.
THE WITNESS: I forgot what I was going to say.
MR. DIETZ: You were about to volunteer something.
THE WITNESS: Yes, I know that. I was trying to think of what particular item I was going to mention.
THE COURT: Well, you have answered the question, Mr. Berry.
THE WITNESS: All right.
Transcript at 66-67.
. Berry testified that his basis for driving to the 2200 block of M Street was:
More than a hunch. As I said, I had developed them as suspects. I was heading out there, not knowing they were the ones who had robbed the bank, but on the chance that they were. Transcript at 53.
Special Agent Berry’s general belief that Floyd and Diggs were bank robbers could not, of course, provide probable cause for their arrest. Plazola v. United States,
. Although the majority relied on Bailey, “[pjerhaps definitively, [to] terminate further present treatment” of the search and seizure issue, I find it clearly distinguishable from the present case.
In Bailey, four police cars stopped an automobile containing four black males who were suspected of having just assaulted and robbed a pedestrian. An officer “approached appellant’s car, apparently with his gun in hand, and ordered the occupants to sit still and keep their hands in plain sight.”
In Henry, the FBI was routinely investigating a theft from an interstate shipment of whiskey. When the agents stopped the car in which Henry was riding, they knew who was in it. In fact, they had no reason for stopping it other than to search at a time when there was clearly no probable cause.389 F.2d at 314, n. 7 . (Italics added.)
Judge Leventhal found that, although there was no probable cause for an arrest, the investigative stop of the car was reasonable in light of the fact that it was leaving the jurisdiction and “once the occupants scattered it would be nearly impossible to reassemble them again.”
. The transcript of the Motion to Suppress hearing does not reflect any “corporate information” which was not broadcast to Special Agents Berry and Mowery over their radio.
. “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry,
As the defendants argued below:
But when an officer takes it upon himself, based on a hunch, based on good police work and good detective work to do what he did, then at the time he makes that stop, he has to have probable cause, because hunches come in bunches, but it doesn’t always make you a winner.
Transcript at 105.
. The question in King which the trial court refused to permit was:
Would any member of the jury be prejudiced by the fact that the complaining witness is white and the defendants are Negro?
. In United States v. Bear Runner,
Unquestionably one of the most effective means of ensuring impartiality is the voir dire proceeding during which questioning will expose any latent bias entertained by prospective jurors. Such exposure is necessary if the parties are to be expected to exercise their challenges in an intelligent and informed manner. Justice White recognized this in Swain v. Alabama,
The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted.
Id. at 218-219,
. See United States v. Robinson,
The majority cites United States v. Grant,
We believe it appropriate, however, to express our view that trial judges in the future should inquire into the subject of racial prejudice, if reasonably requested to do so by defense counsel.
[A] 11 six circuits to decide the question have held it to be error to refuse to permit reasonable inquiry into racial prejudice on voir dire, even absent the aggravating facts of Ham and Aldridge. (Citations omitted.)
Id., n. 6.
. The subsequent proceedings in the Ross case are of some import here. After the Supreme Court denied certiorari, Ross pursued his issue by way of application for the writ of habeas corpus. The United States District Court for the District of Massachusetts granted the application, and the decision was affirmed by the First Circuit in Ross v. Ristaino,
. The general question as to bias which was asked by the court did not remedy the trial court’s error. United States v. Robinson,
. As Justice Marshall noted in Peters v. Kiff,
[I]f we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society.
These observations are equally sound as applied to the issue before this court.