Henry Daniels, Jr. v. United States

357 F.2d 587

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 24, 1966
• Docket: 19324_1
• Status: Published

Opinions

DANAHER, Circuit Judge:

We are unanimous that the delay of some eight weeks between the date of sale and the appellant’s arrest was not unreasonable and prejudicial.¹ We find no error respecting appellant’s claim on this aspect of the case.

After a trial otherwise free from error, the trial judge denied appellant’s motion for a new trial based upon the claim that a juror by her silence at voir dire had deprived him of an opportunity to show her possible bias. It is argued that the ruling was erroneous as a matter of law.

The record shows that the prospective jurors had been sworn. The prosecutor explained that appellant had been charged with violation of the narcotics laws. Respective counsel were introduced and prospective witnesses were identified. The prosecutor then asked:

Is there any reason why you can’t decide this case fairly and impartially upon the evidence as it will be given by the prospective witnesses during the course of this trial?

(No response.)

Is there any reason that comes to your mind which would cause any of you to hesitate as the triers of the facts in a narcotics case?

(No response.)

I assume by your silence that the answers to these questions are in the negative?

(No response.)

Defense counsel asked if any juror had ever been employed by the police department. One juror answered affirmatively.

Defense counsel continued:

Do any of you have relatives or close friends with the Federal Bureau of Investigation ?

(No response.)

Are any of you or do you have close relatives who are connected with the Treasury Department or the Internal Eevenue Service ?

(No response.)

The silence of one juror at that point predicated the post-conviction motion for a new trial. It does not appear of record² that the juror was so employed at the time in question. However, the transcript of the argument indicates that the judge and both counsel took as established, that the jury list in the possession of counsel listed a certain woman juror and gave her occupation as a check numberer in the Treasury Department. There was no suggestion that she was in any way connected with law enforcement problems in the Narcotics Bureau.

Counsel at the argument on his motion explained that at the trial he had had a law student as an assistant. He had asked the assistant to help him with the jury list. “He never informed me of any connection between this Mrs. Mickens and the Treasury Department. Whether he spotted it or whether it had any significance to him, I do not know.”

Defense counsel urged:

“A check of my list indicates there may have been ten jurors who were government employees. I don’t object to the fact she was a government employee. I don’t think that was material. I think the mere fact she was employed by the Treasury Department is definitely material. Her agency, the one who pays her, her immediate superiors - - - she is certainly aware that the Bureau of Narcotics is an agency of the Treasury Department. I definitely feel it is material in this case, in a narcotics case.”

The trial judge after argument ruled:

“I frankly say to you that that which is the basis of your motion now, namely, that there was a person from the Treasury Department — as I recall, a numberer of checks of a non-enforcement division of the Treasury — was not a basis for a new trial. Actually, there is no concealment of this, and the jury list does in fact recite, [³] as I recall, that this juror was a check numberer of the Treasury Department.

“I am going to deny your motion,”

We believe the trial judge did not abuse his discretion.⁴ It seems clear that the judge deemed of scant materiality that the particular juror when impaneled before trial had failed to respond to one of many questions asked by counsel on voir dire. In colloquy at the hearing the judge asked:

“Do you think it is significant, peculiar as to its relation, or lack of relation to materiality, the fact that this juror was not in the enforcement branch of the Treasury Department, was a mere check num-berer ?”

The experienced trial judge, exercising his discretion with respect to a motion for new trial, obviously was of the view that there was no merit of substance to the appellant’s post-conviction claim. The judge knew that defense counsel had asked an assistant to try to help him with the jury list which identified the prospective juror and her occupation. The judge knew that counsel claimed that on the very night when the trial had been concluded, he returned to his office and then discovered that this particular juror had been or was employed by the Treasury Department. The prosecutor had commented that if defense counsel had been diligent, so simple a “discovery” could have been made before a one-day trial as it was readily apparent that evening. In that context, defense counsel explained that his mind had been taken up with other matters before trial and thus sought to meet the prosecutor’s suggestion that he had not been diligent.

The judge could not have failed to know how often appointed counsel are charged with having rendered ineffective assistance. He observed that he thought counsel had been “diligent” in his client’s interest, and the judge pointed to the “alertness” with which the motion for new trial had been filed, just as he had demonstrated during trial that he had been “diligent” in behalf of his client.

But the judge readily could have concluded that what was so easily “discovered” after trial could have been noticed before trial except that counsel had turned the jury list over to his assistant. Taking into account the scant materiality of the defense claim and the absence of challenge before trial, we can not say that there was such an abuse of discretion as to require that the verdict be set aside and that a new trial be granted. Cf. Fed.R.Crim.P. 52(a). Such considerations were epitomized by the Supreme Court, thus:

“Whether or not employment in the Treasury outside the Narcotics Bureau would constitute ground for challenge for ‘actual bias,’ such employment in the connections disclosed here affecting Moore and Root was not so obvious a disqualification or so inherently prejudicial as a matter of law, in the absence of any challenge to them before trial, as to require the court of its own motion or on petitioner’s suggestion afterward to set the verdict aside and grant a new trial.” ⁵

Affirmed.

1 . Powell v. United States, 122 U.S.App. D.C. -, 352 F.2d 705 (1965); Jackson v. United States, 122 U.S.App.D.C. —, 351 F.2d 821 (1965); Bey v. United States, 121 U.S.App.D.C. 337, 350 F.2d 467 (1965); Roy v. United States, 123 U.S.App.D.C. -, 356 F.2d 785 (Sept. 2, 1965), Petition for Rehearing En Banc Denied March 11, 1966; Cannady v. United States, 122 U.S.App.D.C. -, 351 F.2d 796 (1965); cf. Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965).

2 . See note 3, infra.

3 . Appellate counsel on brief tells us “That Mrs. Mickens was employed by the Treasury Department does not appear in the record, although the government’s opposition to appellant’s motion for a new trial concedes the fact by implication.” He asks us to take judicial notice of the juror’s questionnaire in the Jury Commission’s files. The Government on brief tells us that the mimeographed master list of jurors gave the name and address of the woman juror with her occupation “Check numberer — Treas. Dept.”

That undoubtedly was the list as to which counsel had asked the help of his assistant. We think there is no question, from the argument of trial counsel and the pronouncement by the judge, that counsel then had such a list containing an entry as shown.

4 . Frazier v. United States, 335 U.S. 497, 512, 69 S.Ct. 201, 93 L.Ed. 187 (1948).

5 . Frazier v. United States, supra note 4, 335 U.S. at 513, 69 S.Ct. at 210; and see Spivey v. United States, 109 F.2d 181 (5 Cir.), cert. denied, 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401 (1940); cf. United States v. Dennis, 183 F.2d 201, 228 (2 Cir. 1950), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).