USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 1 of 23
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4680
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GUY BENJAMIN BOWMAN,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:22-cr-00021-JPJ-PMS-1)
Argued: March 5, 2024 Decided: July 1, 2024
Before DIAZ, Chief Judge, and RICHARDSON and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Diaz and Judge Rushing joined.
ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. Jonathan Patrick Jones, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Christopher R. Kavanaugh, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 2 of 23
RICHARDSON, Circuit Judge:
A jury convicted Guy Bowman of distributing methamphetamine as well as
conspiring to do so. He now appeals those convictions, arguing that the district court erred
before and during his trial. We disagree and thus affirm his convictions.
I. Background
In March 2022, law-enforcement officers executed a search warrant on a property
in Meadowview, Virginia, where Bowman and his girlfriend, Sally Carr, lived. The search
was a part of an investigation into the couple for the distribution of methamphetamine.
And the search, which encompassed the residence and vehicles, yielded evidence of that
crime. Among other items, officers found (1) three vacuum-sealed bags containing 997
grams of meth in Bowman’s Mercedes, 1 (2) a cell phone in a lock box, and (3) a notebook
in a drawer recording how many “8 balls” 2 were sold, the price for which they were sold,
and when the buyer would pay the balance. Carr arrived as officers searched the property.
But Bowman was nowhere to be found.
Officers located Bowman later that day at the Deluxe Inn in nearby Bristol, Virginia.
Officers patrolling the area found Bowman outside the hotel in his Jeep, and—pursuant to
an arrest warrant and a search warrant for his person—detained and handcuffed him. A
1 Among other evidence showing the Mercedes was Bowman’s, officers found a receipt and temporary registration for the Mercedes in Bowman’s Jeep. 2 As explained at trial, “[a]n 8 ball is a slang term for an eighth of an ounce or 3.5 grams” and is “indicative of a user quantity.” J.A. 483–84. 2 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 3 of 23
search of Bowman’s person yielded $7,108 in cash and another cell phone that was later
revealed to contain messages about drug dealing.
Officers then took Bowman into a hotel room to talk. As they entered the room,
Bowman proclaimed, “I am good at what I do, and I’m connected with the Sinaloa Cartel.” 3
J.A. 503. Surprised by this unprompted assertion, the lead investigator, Drug Enforcement
Agency Special Agent Brian Snedeker, stopped Bowman from saying anything else, got a
Miranda card, read Bowman his Miranda rights, then asked Bowman if he wanted to talk
to the officers. Bowman said yes. Not once during this process did Bowman ask for a
lawyer.
Bowman proceeded to tell officers that “he sold drugs for a living.” J.A. 511.
Specifically, he said that the meth officers found pursuant to the search warrant was his
and that it was part of twenty pounds of meth that he had transported from California to
Virginia with the intent to sell. This meth, he said, originated from the Sinaloa Cartel. He
had transported the meth to Virginia by concealing it inside a spare tire on his Jeep. And
this twenty-pound supply was only part of Bowman’s larger drug-trafficking operation. In
the prior year, he estimated that he had shipped between 150 and 200 pounds of meth from
California to Virginia. Officers arrested Bowman after the interview.
Based on this evidence, Agent Snedeker swore out a criminal complaint against
Bowman, and Bowman and Carr were jointly indicted on two counts. Count One alleged
that the pair conspired to distribute and possess with intent to distribute 500 grams or more
3 The Sinaloa Cartel is “[a] well known Mexican drug trafficking cartel.” J.A. 506. 3 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 4 of 23
of a substance containing meth in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(viii). Count
Two alleged the corresponding substantive offense: that both distributed and possessed
with intent to distribute 500 grams or more of a substance containing meth in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii).
Jail didn’t keep Bowman and Carr from talking. Rather, the two continued to
communicate via the jail phones. Over the course of four phone calls, Bowman instructed
Carr to collect drug debts for him and once again admitted that he sold drugs for a living.
Eventually, Bowman’s and Carr’s approaches to their prosecution diverged. Carr
pleaded guilty to Count Two, resulting in the dismissal of Count One against her. But
Bowman proceeded to trial. And, after two court-appointed attorneys withdrew from
representing him, he chose to proceed pro se—despite a magistrate judge’s advice to the
contrary.
Before trial, Bowman filed a motion to suppress the initial statements he made to
Agent Snedeker. He did not assert any facts that contradicted the above-described
rendition of Agent Snedeker’s interaction with him. Instead, he argued that the statements
that he “is good at what [he] do[es]” and that he is “connected with the Sinaloa Cartel”
should be suppressed because he made them before he was read his Miranda rights.
The district court denied the motion without holding an evidentiary hearing.
“Miranda protections,” it explained, “are available only to those who are interrogated by
law enforcement officers while in custody.” J.A. 735. Because Bowman alleged no facts
indicating that he was interrogated before he made the statements in question, the district
court determined that there was no basis to suppress them.
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Then came trial, starting with jury selection. The district court itself asked
prospective jurors questions. It asked about jurors’ experiences that may impact their
impartiality—e.g., experiences with Bowman, drug offenses, and law enforcement. As
catchalls, the district court asked the prospective jurors, “Do any of you know of any
reason why you could not decide this case solely on the evidence and the law that I’ll tell
you about without regard to sympathy, bias, or prejudice?”; “[D]o any of you have any
religious or personal belief that would make it difficult for you to sit in judgment as a juror
of someone else?”; and “Do any of you know of any reason, even a reason that I’ve not
asked you about, that would make it difficult for you to be fair and impartial in this case?”
J.A. 182–83. As a result of these questions, some jurors were excused for cause.
After the district court asked its questions and prospective jurors exited the
courtroom, Bowman proposed five more questions for the district court to ask. Those
questions were:
1) “Should law enforcement have to abide by the same hunting and fishing
regulations as everybody else?”;
2) “Do you believe it’s okay to stereotype people?”;
3) “What do you think about black and white marriage?”;
4) “Do you believe in common law marriage?”; and
5) “Do you think it’s right for the government to use scare tactics?”
J.A. 187. The district court declined to ask any of them.
The final step of jury selection was to bring the prospective jurors back to the
courtroom for peremptory strikes. The Government got six, and Bowman ten. See Fed. R.
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Crim. P. 24(b)(2). The district court provided both parties with a juror strike list. At some
point, Bowman noticed that the Government had another list with more information about
the jurors than was included on the strike list. The strike list only had each prospective
juror’s name, city and county of residence, and occupation. But before trial, the
Government had been provided a list with that information, plus address, education level,
name of employer, year of birth, race, marital status, spouse’s occupation, and number of
children. So Bowman protested. The district court didn’t address the issue, but asked
Bowman if he was going to proceed with his peremptory strikes. Bowman continued to
protest, refusing to make his remaining strikes because the Government possessed
additional information. In the end, the district court made Bowman’s remaining strikes for
him.
Once the jurors were chosen and opening statements were made, the Government
put on its case-in-chief. It presented various law-enforcement agents as witnesses,
including Agent Snedeker, and they testified consistently with the facts described above.
In addition, Agent Snedeker testified about what he had learned about drug traffickers
through his experience as an agent. Namely, he explained that drug traffickers
(1) “routinely take vehicles in as trades” for drugs and thus routinely have multiple
vehicles, J.A. 481, (2) “oftentimes possess multiple cell phones,” J.A. 497, and (3) use
digital scales to “weigh the product that they’re selling,” J.A. 500. This testimony
corresponded to evidence that Bowman had multiple vehicles, was found with multiple cell
phones, and had a photo of a digital scale on one of those cell phones.
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For his case-in-chief, Bowman called two witnesses. The first was Carr. Once on
the stand, however, Carr and her attorney told the district court she wanted to exercise her
Fifth Amendment right not to testify. The district court accepted Carr’s request, explaining
that Carr hadn’t yet been sentenced and her “testimony . . . would . . . relate[] to her alleged
involvement in the charges against her.” J.A. 660. Bowman’s only other witness was
Jennifer Morrison, who testified that Bowman bought tires from her. Bowman’s
questioning indicated that he intended Morrison’s testimony to show that he sold cars,
rather than drugs, for a living.
At closing, both Bowman and the Government summarized the evidence and their
arguments. The Government augmented its closing argument by replaying portions of two
jail calls between Bowman and Carr. In reaction, Bowman asked to play the entirety of
the four recorded jail calls during his closing argument. The district court said no because
it believed that only parts of the calls had been admitted into evidence. But, after Bowman
finished his argument, the district court realized it had made a mistake—the entirety of the
four calls had been admitted into evidence. So the district court conferenced with the
parties about how to go forward.
The Government explained that each call was about 16 minutes long, meaning
playing the whole of each would take an hour. Bowman couldn’t pinpoint any part or parts
of the calls he wished to play; he only wanted the full calls played because the jury could
only “understand[] . . . what was really going on” if it heard “the whole phone call.” J.A.
696. The district court chose a middle ground and, rather than playing the calls during
closing, told the jury how to access the recordings and that Bowman wanted them to listen
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to each in its entirety because the portions played during the Government’s argument were
“out of context.” J.A. 699.
After deliberation, the jury found Bowman guilty on both counts. Bowman was
later sentenced to 360 months’ imprisonment. This appeal followed.
II. Discussion
Bowman urges us to vacate his sentence and convictions and remand for a new trial
based on various errors by the district court. None of those alleged errors, however, are in
fact errors. So we affirm.
A. Evidentiary Hearing
Bowman’s first argument is that the district court erred when it failed to hold an
evidentiary hearing on his suppression motion. It did not.
District courts need not conduct an evidentiary hearing on all suppression motions.
Fed. R. Crim. P. 12(c)(1) (“The court may . . . schedule a motion hearing.” (emphasis
added)). The decision whether to conduct one is instead “left to the sound discretion of the
district court, and we will review that decision only for an abuse of discretion.” United
States v. Pridgen, 64 F.3d 147, 150 (4th Cir. 1995). 4
This is not to say, though, that an evidentiary hearing is never required. Cf. United
States v. Raddatz, 447 U.S. 667, 677 (1980) (“The guarantees of due process call for a
‘hearing appropriate to the nature of the case.’” (quoting Mullane v. Cent. Hanover Bank
4 The Government contends that we should review only for plain error since Bowman did not object below to the court’s not holding a hearing. But we need not decide whether Bowman preserved this issue because it fails even under the more forgiving abuse- of-discretion standard. 8 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 9 of 23
& Tr. Co., 339 U.S. 306, 313 (1950))). In ruling on a suppression motion, a district court
is both the factfinder and the decider-of-law. See United States v. Stevenson, 396 F.3d 538,
541 (4th. Cir. 2005). When the facts underlying the motion are clear and undisputed, an
evidentiary hearing provides little value. Yet when critical facts are disputed, an
evidentiary hearing can be helpful—for the district court must then “resolve conflicts in
testimony, weigh the evidence, and judge the credibility of witnesses.” See United States
v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).
Accordingly, a district court must hold an evidentiary hearing on a suppression
motion only if the motion raises a material factual dispute. United States v. Taylor, 13 F.3d
786, 789 (4th Cir. 1994). In other words, a hearing is required when the motion asserts
facts that (1) are disputed and unresolvable on the record and (2) will affect the resolution
of the constitutional claim. Id.; United States v. Hines, 628 F.3d 101, 105 (3d Cir. 2010).
As the defendant bears the burden of proof on a motion to suppress, United States v.
Dickerson, 655 F.2d 559, 561 (4th Cir. 1981), he too bears the burden of asserting disputed
material facts in his motion.
Here, Bowman presented no material factual dispute in his suppression motion. The
motion only asserted that his statements should be suppressed because he made them before
he was Mirandized. The Government did not contest that order of events. So the district
court didn’t have to hold an evidentiary hearing—it needed only to resolve the legal dispute
of whether, taking the facts as the parties agreed them to be, Bowman’s Fifth Amendment
rights were violated.
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And it rightly concluded that they were not. The Fifth Amendment is implicated
only when a suspect is both in custody and subject to official interrogation. United States
v. Kimbrough, 477 F.3d 144, 147 (4th Cir. 2007). The Government asserted that Bowman
made his statements spontaneously. Bowman’s motion, in turn, did not allege any facts
that suggested that his statements were made in response to “express questioning or its
functional equivalent.” 5 See id. (quotation omitted). So he failed to allege that there were
any material factual disputes warranting a hearing.
Although he acknowledges that his motion contained no contested factual
allegations, Bowman argues that the district court still erred for two reasons. For one, he
contends that he wasn’t able to develop evidence in support of suppression before filing
his motion because he lacked sufficient access to discovery. For two, he points out that,
during trial, he said that he had requested a lawyer before he made the statements, which
evidences a material factual dispute on the suppression issue.
These arguments are beside the point. Even if Bowman’s ability to access discovery
was limited, that would not have prevented him from alleging material facts in his motion.
If he remembered officers asking him questions before he made his statements, he could
have alleged that fact. He did not need to prove facts in his motion to meet the burden
5 We reach this conclusion even considering our liberal construction of pro se motions. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012). Bowman, in fact, does not argue on appeal that his motion could be read to allege any facts that differed from the Government’s, let alone any facts that showed he was interrogated. While the law rightfully requires courts to give pro se defendants’ submissions the benefit of the doubt, it doesn’t require courts to dream up factual assertions that the defendant could have made to support an evidentiary hearing. 10 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 11 of 23
required to get an evidentiary hearing. And, as to his second argument, the mere fact that
Bowman might have at some point requested counsel is immaterial here. See Edwards v.
Arizona, 451 U.S. 477, 485 (1981) (holding that Miranda doesn’t apply—even after a
request for counsel—when “the accused himself initiates further communication,
exchanges, or conversations with the police”). Again, the facts and allegations available
to the district court established that Bowman’s confession was uttered spontaneously,
meaning any factual dispute about a prior request for counsel, even assuming there was
such a dispute, would not have affected the resolution of Bowman’s constitutional claim.
In summary, the district court didn’t need to resolve any factual disputes to decide
Bowman’s motion. So it didn’t abuse its discretion by rejecting it without an evidentiary
hearing.
B. Jury Selection
Next, Bowman argues that, during jury selection, the district court impaired his
constitutional right to a fair and impartial jury in two ways: by refusing to ask the jury pool
his proposed questions and by providing him with a juror list containing less information
than what was provided to the Government. Yet neither of these actions violated
Bowman’s constitutional rights.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right to . . . an impartial jury.” U.S. Const. amend. VI. This right is partially
protected by jury selection, during which a trial judge “ensur[es] that jurors have ‘no bias
or prejudice that would prevent them from returning a verdict according to the law and
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evidence.’” 6 United States v. Tsarnaev, 595 U.S. 302, 312 (2022) (quoting Connors v.
United States, 158 U.S. 408, 413 (1895)). And the Supreme Court has “repeatedly said
that jury selection falls ‘particularly within the province of the trial judge.” Id. (quoting
Skilling, 561 U.S. at 386). That’s because, during jury selection, a “trial judge’s function
. . . is not unlike that of [a] juror[]. . . . Both must reach conclusions as to impartiality and
credibility by relying on their own evaluations of demeanor evidence and of responses to
questions.” Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion);
accord id. at 194 (Rehnquist, J., concurring in result); Tsarnaev, 595 U.S. at 312–13.
1. Voir Dire
Voir dire, or “to speak the truth,” refers to the questioning of potential jurors during
jury selection. 7 The Constitution requires that this questioning be sufficient “to enable
6 The Supreme Court has sometimes grounded the need for an impartial jury in the Fifth and Fourteenth Amendments’ Due Process Clauses. See Turner v. Murray, 476 U.S. 28, 36 n.9 (1986); United States v. Skilling, 561 U.S. 358, 377–79 (2010); United States v. Malloy, 758 F.2d 979, 981–82 (4th Cir. 1985). The Court has explained that those clauses “protect[] against criminal trials . . . conducted . . . in a way that necessarily prevents a fair trial.” Lyons v. Oklahoma, 322 U.S. 596, 605 (1944) (cleaned up). And a trial is necessarily unfair if jury selection doesn’t root out biased jurors. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“A fair trial in a fair tribunal is a basic requirement of due process. . . . In the ultimate analysis, only the jury can strip a man of his liberty or his life. . . . [So] a juror must be as indifferent as he stands unsworne.” (quotations and citations omitted)). 7 The court may question the jurors itself or supervise the attorney’s questioning. Cf. Skilling, 561 U.S. at 372–73 (discussing the trial judge’s rejection of the need for questioning by counsel and noting the trial judge’s explanation that jurors provide more forthcoming responses to judge-led questioning). Federal Rule of Criminal Procedure 24(a)(1) provides that “[t]he court may examine prospective jurors or may permit the attorneys for the parties to do so.” Where, as here, the court chooses the former, it must permit the parties to either “ask further questions that the court considers proper” or (Continued) 12 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 13 of 23
[district courts] ‘to remove prospective jurors who will not be able impartially to follow
the court’s instructions and evaluate the evidence.’” United States v. Caro, 597 F.3d 608,
614 (4th Cir. 2010) (quoting Rosales-Lopez, 451 U.S. at 188 (plurality opinion)). Yet the
Constitution does not dictate “the necessary depth or breadth” of questions. Skilling, 561
U.S. at 386. Instead, district courts have broad discretion to determine what questioning is
sufficient. Id.
Here, Bowman argues that the district court was constitutionally required to ask the
questions that “addressed racial prejudice” 8 because the jury pool was all White and
Bowman is Black. Appellant’s Br. at 15. He thus contends that the district court’s failure
to ask his questions amounted to a constitutional error.
The Constitution does sometimes mandate that a district court ask potential jurors
about racial prejudice. But those cases are limited to the narrow circumstance where racial
issues are “inextricably bound up with the conduct of a trial” and the defendant has
requested such questioning. United States v. Barber, 80 F.3d 964, 968 (4th Cir. 1996) (en
“submit further questions that the court may ask if it considers them proper.” Fed. R. Crim. P. 24(a)(2). 8 Bowman’s arguments on appeal challenge the district court’s refusal to ask his questions writ-large. But only one of Bowman’s five questions addressed race explicitly (“What do you think about black and white marriage?”). J.A. 187. Another of his questions addressed prejudice generally (“Do you believe it’s okay to stereotype people?”). J.A. 187.. The other three questions don’t deal with race or the facts of Bowman’s case at all. Bowman doesn’t argue that these non-race-related questions were essential to guaranteeing him a fair trial—likely because there’s no indication that any of them would have unearthed any relevant prejudice that the prospective jurors harbored. Instead, he only asserts that the district court erred because it needed to probe the issue of racial bias. So that’s the argument we respond to. 13 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 14 of 23
banc) (quoting Rosales-Lopez, 451 U.S. at 189 (plurality opinion)). Outside that context,
the Constitution does not mandate that the district court ask the jury pool any questions
about racial bias whatsoever. 9
Bowman’s case wasn’t “inextricably bound up” with race. He was charged with
possession and distribution of meth and conspiracy to complete that crime. Race is not an
element of either of those offenses, and the evidence to support those charges did not deal
with race at all—it consisted of drugs found in Bowman’s car, evidence found on
Bowman’s phone, and Bowman’s own statements. Cf. Barber, 80 F.3d at 968. True, Carr
is White, and the Government presented evidence that Bowman and Carr were romantically
involved. Yet we explicitly held in Barber that the mere existence of an interracial
relationship is not enough to show that race is so “inextricably bound up” in a case that the
Constitution requires the district court to ask about racial prejudice. Id. at 968–69. We
also reject Bowman’s invitation to assume that, just because the jury pool was all White,
there was a constitutionally significant risk of racial prejudice. In our system, “[t]here is
no constitutional presumption of juror bias for or against members of any particular racial
or ethnic groups.” Rosales-Lopez, 451 U.S. at 190 (plurality opinion).
9 We have suggested that there may be some contexts in which a district court’s failure to ask questions about race does not violate the Constitution but still amounts to a reversible abuse of discretion. As we explained in United States v. Barber, “we may find an abuse of discretion in a federal court’s refusal to ask prospective jurors about racial prejudice only when (1) such a request has been made and (2) there is a ‘reasonable possibility’ that racial prejudice might influence the jury.” 80 F.3d at 968. But Bowman only asserts constitutional error and does not appeal to any supposed supervisory authority we may have. So we limit ourselves to the constitutional inquiry. 14 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 15 of 23
“Accordingly, we cannot conclude that the court’s refusal to” ask Bowman’s
questions “amounted to an unconstitutional abuse . . . of the court’s discretion in
conducting voir dire.” Barber, 80 F.3d at 970. The court had already asked sufficient
questions “to enable [it] ‘to remove prospective jurors who w[ould] not be able impartially
to follow the court’s instructions and evaluate the evidence.’” Caro, 597 F.3d at 614
(quoting Rosales-Lopez, 451 U.S. at 188 (plurality opinion)). Those questions were broad
enough to uncover bias, racial or otherwise. The court’s refusal to ask any additional
duplicative or immaterial questions was thus appropriate.
2. Peremptory Strikes
Bowman also asserts that the district court violated his Sixth Amendment rights by
providing him with a juror list that contained less information than what had been provided
to the Government. According to Bowman, this impaired his ability to exercise his
peremptory strikes so much that he was forced to cede them to the district court. This
denial of peremptory strikes, in Bowman’s view, was a per se reversible constitutional
error.
Peremptory strikes are a historical staple of jury selection. These strikes, which
provide both parties the opportunity “to remove any potential juror for any reason—no
questions asked,” “can be traced back to the common law.” Flowers v. Mississippi, 588
U.S. 284, 293 (2019). Thus, since before our Nation’s birth, peremptory strikes have
helped to eliminate “extremes of partiality on both sides” and have supported “the selection
of a qualified and unbiased jury.” See Holland v. Illinois, 493 U.S. 474, 484 (1990).
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That said, the Supreme Court has made clear “that there is no freestanding
constitutional right to peremptory challenges.” 10 Rivera v. Illinois, 556 U.S. 148, 157
(2009). Rather, the strikes are “creature[s] of statute.” Id. (quoting Ross v. Oklahoma, 487
U.S. 81, 89 (1988)). In federal court, they’re provided by Federal Rule of Criminal
Procedure 24(b). So denying a federal criminal defendant his peremptory strikes violates
the federal rules but does not itself violate our Constitution.
Bowman only challenges the district court’s actions under the Constitution. But the
denial of or impairment to one’s peremptory strikes only amounts to a constitutional error
if he can show that a “member of his jury was removable for cause.” 11 Rivera, 556 U.S. at
159. Remember, “peremptory challenges are not constitutionally protected fundamental
rights; rather, they are but one state-created means to the constitutional end of an impartial
jury and a fair trial.” Georgia v. McCollum, 505 U.S. 42, 57 (1992). So as long as the
district court’s denial of a criminal defendant’s peremptory strikes does not impinge upon
the defendant’s right to an impartial jury, that denial does not offend the Sixth Amendment.
Rivera, 556 U.S. at 159.
10 Of course, this doesn’t mean that the Constitution doesn’t regulate how peremptory strikes may be exercised. See Batson v. Kentucky, 476 U.S. 79, 84 (1986). 11 “Challenges for cause are typically limited to situations where actual bias is shown.” Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). We have suggested that implied bias might also be a basis for a for-cause challenge in “extreme situations” Id. (citing Smith v. Phillips, 455 U.S. 209, 221–24 (1982) (O’Connor, J., concurring)). But the validity of even a narrow implied-bias doctrine is uncertain. See Smith, 455 U.S. at 215–18 (majority opinion) (rejecting the argument that a court can imply juror bias); Fitzgerald v. Greene, 150 F.3d 357, 365 (4th Cir. 1998) (declining to apply the implied bias doctrine even “[a]ssuming it remains a viable doctrine post-Smith”). 16 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 17 of 23
Bowman denies that this is the correct standard. Instead, he argues that the denial
or impediment of peremptory strikes is a per se reversible error. In support, he points to
our decision United States v. Ricks, which stated “[t]he right to peremptory strikes . . . is a
right of such significance that denial or substantial impairment of the right constitutes per
se reversible error.” 776 F.2d 455, 461 (4th Cir. 1985), vacated on reh’g en banc, 802 F.2d
731 (4th Cir. 1986).
Bowman’s reliance on Ricks is misplaced for several reasons. First, the Ricks
opinion that Bowman relies on was vacated, and the case was reheard en banc. The en
banc court did not repeat the panel’s “per se” language. The vacated panel decision thus
carries no precedential weight. See Quesinberry v. Life Ins. of N. Am., 987 F.2d 1017, 1029
n.10 (4th Cir. 1993) (en banc). However, the Ricks en banc court did “hold, for the reasons
set forth by the majority [in the vacated Ricks opinion] . . . that there was an impermissible
dilution of defendants’ statutory right to peremptory challenges of prospective jurors
necessitating reversal.” 802 F.2d at 732. So, according to Bowman, the en banc court
adopted all the panel’s language.
Even if that were so, the en banc court in Ricks relied on the now-rejected dicta from
Swain v. Alabama, 380 U.S. 202 (1965). See Ricks, 802 F.2d at 734. In Swain, the Supreme
Court stated that “[t]he denial or impairment of the right [to peremptory challenges] is
reversible error without a showing of prejudice.” 380 U.S. at 219. Since then, however,
the Supreme Court foreclosed any reliance upon it. Not only has it explicitly “disavowed”
Swain’s “oft-quoted” dicta, Rivera, 556 U.S. at 160–61; accord United States v. Martinez-
Salazar, 528 U.S. 304, 317 n.4 (2000), its decisions holding that courts’ denials of
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peremptory strikes did not amount to reversible error necessarily reject it, Rivera, 556 U.S.
at 157–59; Martinez-Salazar, 528 U.S. at 316–17.
Consider the Supreme Court’s decision in Rivera, 556 U.S. 148. During Rivera’s
criminal trial, the state court didn’t allow him to peremptorily strike a juror because it
erroneously determined the strike may have been racially motivated. See id. at 153. So
that juror was seated on the jury that subsequently convicted him. Id. On appeal, Rivera
argued that the court’s denial of his peremptory strike amounted to a reversible error—but
he didn’t argue the juror was biased against him. Id. at 152. The Supreme Court thus faced
the question: “If all seated jurors are qualified and unbiased, does the [Constitution]
nonetheless require automatic reversal of the defendant’s conviction” following the
“erroneous denial of a defendant’s peremptory challenge”? Id. at 151–52. It said no. As
the Court explained, so long as “a defendant is tried before a qualified jury composed of
individuals not challengeable for cause, the loss of a peremptory challenge . . . is not a
matter of federal constitutional concern.” Id. at 157. Since Rivera could not show that any
“member of his jury was removable for cause,” his “jury was impartial for Sixth
Amendment purposes.” Id. at 159. In other words, Rivera alleged no constitutional error,
reversible or otherwise. See id. at 157–62.
Rivera forecloses Bowman’s argument that we should apply Rick’s supposed per se
rule. We are not bound by the published decisions of prior panels when those decisions
have been abrogated by intervening Supreme Court precedent. 12 See United States v.
12 This principle applies equally to our later cases relying on Ricks. Rose v. PSA Airlines, Inc., 80 F.4th 488, 504 (4th Cir. 2023). 18 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 19 of 23
Dinkins, 928 F.3d 349, 357–58 (4th Cir. 2019). We are instead bound by the Supreme
Court’s holding that the denial or impairment of a statutory right to peremptory strikes only
amounts to a reversible, constitutional error if a juror was seated who was challengeable
for cause.
Bowman points to no such juror. He rests his argument on his purported per se rule.
In fact, he conceded at oral argument that if the per se rule doesn’t apply, he loses. Oral
Arg. 12:28 – 13:15. And for the reasons stated, the per se rule doesn’t apply—so the district
court did not violate Bowman’s Sixth Amendment rights.
In so holding, we recognize that, for better or for worse, parties often have disparate
amounts of information when deciding to exercise peremptory strikes. And that is
particularly true when a criminal defendant proceeds pro se. Yet the Sixth Amendment
does not require district courts to ensure equality of information and ability. Rather, we
provide district courts with discretion to decide how to ensure a fair trial. And in exercising
peremptory strikes, that discretion isn’t abused if the district court doesn’t require one party
to give the other all its information on prospective jurors. See Best v. United States, 184
F.2d 131, 141 (1st Cir. 1950).
That said, we do not condone a court providing disparate information about
prospective jurors to the defendant and prosecution. But while the district court could have
conducted jury selection better, that doesn’t mean it violated Bowman’s constitutional right
to an impartial jury. See Sasaki v. Class, 92 F.3d 232, 238–39 (4th Cir. 1996). Because
Bowman points to no seated juror who was challengeable for cause, he has not established
a Constitutional violation.
19 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 20 of 23
In sum, the district court did not violate Bowman’s Sixth Amendment rights during
jury selection. Both during voir dire and with regard to peremptory strikes, it exercised its
discretion within the bounds the Constitution permits.
C. Evidence
Bowman’s final challenges regard the evidence admitted—or not admitted—at trial.
He argues that the district court erred by (1) allowing Carr to invoke her Fifth Amendment
right not to testify, and (2) refusing to play the entire phone calls between him and Carr
during closing arguments. We reject each argument in turn.
We review district courts’ evidentiary rulings for abuse of discretion. 13 United
States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
1. Carr’s Testimony
Bowman contends the district court abused its discretion by allowing Carr to invoke
her Fifth Amendment right not to testify. In Bowman’s view, Carr was prohibited from
invoking that right because she waived it in her plea agreement.
It is indeed true that Carr’s plea agreement states that she waived her “right to
remain silent at trial.” J.A. 104. But that doesn’t mean Bowman’s argument prevails.
Even assuming Carr’s waiver could extend to this context, plea agreements are “governed
by the law of contracts.” United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994). And
contracts can be enforced only by the parties to the contract or third parties that the contract
13 With respect to Carr’s testimony, the Government again argues that we should review only for plain error. But we need not decide whether Bowman preserved this issue because it fails even under the more forgiving abuse-of-discretion standard. 20 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 21 of 23
makes clear are its intended beneficiaries. See R.J. Griffin & Co. v. Beach Club II
Homeowners Ass’n, 384 F.3d 157, 164 (4th Cir. 2004); Restatement (Second) of Contracts
§ 304 (Am. L. Inst. 1981). Bowman is neither. Carr promised the Government that she
waived her right to remain silent, and nothing in the agreement contemplates Bowman as
being the beneficiary of her guilty plea. So Bowman cannot hold Carr to her promise and
mandate that she testify. Cf. United States v. Andreas, 216 F.3d 645, 663 (7th Cir. 2000).
Neither could the district court. It is also neither a party nor a beneficiary to Carr’s
plea agreement. It had no duty to seek out Carr’s plea agreement or hold her to its terms.
And Bowman points to no cases to the contrary. Each case he cites in support of his
argument involves the district court’s enforcing a plea agreement’s waiver of the right not
to testify (1) as between the Government and the defendant who pleaded guilty and (2) at
the Government’s request. See United States v. Smalls, 134 F. App’x 609, 612–14 (4th
Cir. 2005) (per curiam); United States v. Wise, 603 F.2d 1101, 1102–04 (4th Cir. 1979). In
contrast, when Bowman called Carr to testify and she invoked her Fifth Amendment right,
the Government did not seek to enforce the promise Carr made to it.
The district court’s obligation, therefore, was not to enforce the Government’s
contractual rights—it was to ensure Carr could exercise her constitutional rights. The Fifth
Amendment protects an individual from “be[ing] compelled in any criminal case to be a
witness against himself.” U.S. Const. amend. V. While Carr had pleaded guilty by the
time Bowman called her as a witness, the Supreme Court “has . . . rejected the proposition
that ‘incrimination is complete once guilt has been adjudicated.’” Mitchell v. United States,
526 U.S. 314, 325 (1999) (quoting Estelle v. Smith, 451 U.S. 454, 462 (1981)). A person
21 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 22 of 23
retains her Fifth Amendment protections so long as there is still a possibility of further
incrimination. See id. at 325–27. Here, Carr had yet to be sentenced when she took the
witness stand. So she still had “a legitimate fear of adverse consequences from [her]
testimony.” Id. at 326. The district court was thus right to allow her to remain silent rather
than force her to testify.
In short, neither the district court nor Bowman could enforce Carr’s agreement with
the Government. As a result, the district court did not err by allowing her to exercise her
constitutional right.
2. Phone Calls
Finally, Bowman asserts that the district court abused its discretion by declining his
request to play the entirety of his jail calls with Carr during closing arguments. In his view,
the district court was required to have the jury sit through an hour’s worth of phone calls
in addition to the rest of Bowman’s closing statement.
Just as the district court is given broad discretion in jury selection and in making
evidentiary decisions, it “is afforded broad discretion in controlling closing arguments.”
United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010) (citation omitted). This
includes, for instance, the discretion to limit arguments “to a reasonable time” and “ensure
that argument does not stray unduly from the mark.” Herring v. New York, 422 U.S. 853,
862 (1975); United States v. Wiley, 93 F.4th 619, 631 (4th Cir. 2024).
The district court’s decision not to play the four jail calls during closing arguments
was within its discretion. Upon discovering that playing the calls would take an hour, the
district court gave Bowman a chance to pinpoint parts of the calls that provided the context
22 USCA4 Appeal: 22-4680 Doc: 45 Filed: 07/01/2024 Pg: 23 of 23
he asserted was necessary to understand the portions of the calls the Government played.
But Bowman couldn’t point to any. He instead contended that the only way to provide the
necessary context was to play the entire recordings. So the district court had to decide
whether to play an hour’s worth of phone calls—much of which could be irrelevant,
repetitive, or confusing—or tell the jury that Bowman wanted them to listen to the whole
of the calls during deliberations. It chose the latter. We cannot say that it abused its
discretion by doing so. See Wiley, 93 F.4th at 631 (holding that the district court did not
abuse its discretion by prohibiting legal definitions in closing arguments when those
definitions could be “more confusing than helpful”); cf. Fed. R. Evid. 611(a) (“The court
should exercise reasonable control . . . as to . . . avoid wasting time.”).
* * *
Bowman thinks his convictions and sentence should be reversed. But none of the
reasons he provides amounts to an error, let alone a reversible error. Rather, the district
court’s challenged actions fall within the broad leeway judges must have to manage trials.
See United States v. Janati, 374 F.3d 263, 273–74 (4th Cir. 2004). So Bowman’s
convictions and sentence are
AFFIRMED.