United States v. Norwood W. Barber, United States of America v. Linda K. Barber

80 F.3d 964, 44 Fed. R. Serv. 281, 1996 U.S. App. LEXIS 6585, 1996 WL 157666

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 5, 1996
• Docket: 94-5065, 94-5115
• Status: Published

Opinions

Affirmed by published opinion. Judge NIEMEYER wrote the opinion of the court, in which Chief Judge WILKINSON, and Judges RUSSELL, WIDENER, HALL, WILKINS, HAMILTON, LUTTIG, WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion, in which Judges ERVIN, MICHAEL, and MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

Norwood W. Barber and his wife, Linda K. Barber, were convicted of laundering cash proceeds from the sale of marijuana, in violation of 18 U.S.C. § 1956. On appeal they challenge mainly the district court’s rejection of their request that voir dire of prospective jurors inquire into possible juror prejudice against interracial marriage. Norwood Barber is black, and Linda Barber is white. They also challenge an evidentiary ruling that allowed an expert witness to give his opinion about how their activities constituted concealment for purposes of money laundering and the sufficiency of the evidence to support their convictions. For the reasons that follow, we affirm.

I

For years, Norwood Barber was a confessed marijuana dealer in the Harrisonburg, Virginia, area. In conversations with Harri-sonburg police officers, he has mused that the only thing that he can do in life is to sell marijuana. Linda Barber worked for the local chapter of the Society for the Prevention of Cruelty to Animals.

Over a five-year period beginning in 1984, the Barbers opened five joint accounts in various banks and, as often as two or three times a week, deposited large amounts of cash into them, usually in small bills. Typically, a few days later, they withdrew the cash in larger bills. On one occasion, a bank teller asked Linda Barber whether she wanted her withdrawal in the form of a cashier’s check, and she replied that she wanted it in large bills. On several occasions, the Barbers made deposits and withdrawals at various banks on the same day. A number of bank tellers became suspicious of the Barbers’ banking activity and reported their observations to law enforcement officials.

At various times, Norwood Barber misrepresented his employment' to bank officials and others, stating that he was self-employed in the egg delivery or truck driving business. On their federal income tax returns, however, the Barbers represented that Norwood Barber had no income and was unemployed. When later questioned by law enforcement officers about the source of the cash involved in their banking activity, the Barbers stated that they had saved the money over the past ten years under their bed.

The Barbers were indicted in one count for conspiracy to launder drug proceeds and, in six counts, for laundering money from drug sales in violation of 18 U.S.C. §§ 1956(a)(l)(B)(i) and (2)(B)(i). A jury convicted them on all counts, and the district court sentenced Norwood Barber to 70 months imprisonment and Linda to 57 months. This appeal followed.

II

We turn first to the Barbers’ contention that the district court committed reversible error in rejecting their request to inquire during voir dire into prospective jurors’ prejudice against interracial marriage.

At the beginning of trial, counsel for the Barbers requested that the trial court ask whether any member of the venire would prejudge the defendants because they were partners in an interracial marriage. The government objected to the request, arguing that posing such a question to the venire would “bring in a race issue that really is irrelevant.” While asserting that an affirmative answer to his question would not provide a basis for disqualifying a potential juror, Norwood Barber’s counsel stated that it would assist him in exercising his peremptory challenges in an informed manner. He maintained that “race is already injected by the fact that the defendants are sitting there as an interracial couple.” Linda Barber’s counsel added, “The only reason I like [the question] there is that it literally lets [the jury] know race is not an issue, and we go ahead and we admit the obvious. It is see, look, this is an interracial couple. We all agree race is not an issue.” He went on to conclude, “It clears the air.... I’d like to clear [the jurors’] subconscious and agree that it is not an issue, a non-issue.”

The district court rejected the Barbers’ proposed voir dire question, explaining that it “simply injects race into this trial, and I do not want to see that happen.” Responding to the argument made by Linda Barber’s counsel, the court stated, “If we want to clear the subconscious in this venire, we will be in there for two weeks in voir dire.”

The Barbers contend that the district court’s ruling was legal error which should be reviewed de novo. They maintain that they had “serious concerns and outright apprehension that there might be jurors on the panel who had serious, if not, principled opposition to interracial marriage.” And they argue that “[t]he rights of the Barbers to direct their concerns in the form of voir dire clearly should have overridden the expressed concerns by the Court that such an inquiry would ‘inject race’ into the case.”

While voir dire serves an important role in furthering the defendant’s Sixth Amendment right to trial by an impartial jury, its conduct must be committed to the good judgment of the trial judge whose “immediate perceptions” determine what questions are appropriate for ferreting out relevant prejudices. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634-35, 68 L.Ed.2d 22 (1981) (plurality opinion). The trial judge is in the best position to make judgments about the “impartiality and credibility” of potential jurors based on the judge’s “own evaluations of demeanor evidence and of responsés to questions.” Id. at 188, 101 S.Ct. at 1634. For that reason trial courts are given, “broad discretion as to the questions to be asked.” Id. at 189, 101 S.Ct. at 1634 (quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931)); see also Fed. R.Crim.P. 24(a). Accordingly, we review a district court’s refusal to ask requested voir dire questions for' abuse of discretion. See United States v. Brooks, 957 F.2d 1138, 1144 (4th Cir.), cert. denied, 505 U.S. 1228, 112 S.Ct. 3051, 120 L.Ed.2d 917 (1992).

We cannot ignore continuing incidents of racial prejudice that infect the dispensation of justice. Racial prejudice is a persisting malady with deep and complicated historical roots. But every criminal trial cannot be conducted as though-race is an issue simply because the trial participants are of different races. If racial prejudice is ever to be eliminated, society’s, general concerns about such prejudice must not be permitted to erode the courts’ efforts to provide impartial trials for the resolution of disputes. Because “[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, 101 S.Ct. at 1635, the courts must begin every trial with the idea of not focusing jurors’ attention on the participants’ membership in those particular groups. Particularly because we are a heterogenous society, courts should not indulge in “the divisive assumption ... that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion.” Ristaino v. Ross, 424 U.S. 589, 596 n. 8, 96 S.Ct. 1017, 1021 n. 8, 47 L.Ed.2d 258 (1976).

Moreover, to seek out generalized prejudices during the voir dire would quickly divert the trial’s focus from the guilt or innocence of the defendant to peripheral factors, such as the defendant’s race or religious beliefs, which are usually irrelevant to the merits of the case. The very .process of exploring such factors would heighten their role in the decisionmaking process and tend to subvert the court’s express admonition to jurors to convict or acquit only on the evidence before them without partiality to any party.

Even though generalized prejudices should therefore not routinely be made a subject of inquiry during voir dire, it is also clear that when prejudice threatens the fairness of the process or the result, such an inquiry is required to eliminate that prejudice. When racial issues are “inextricably bound up with the conduct of the trial,” the constitutional guarantee of a trial by an impartial jury requires that a court not refuse a request for voir dire directed to racial prejudice. Rosales-Lopez, 451 U.S. at 189, 101 S.Ct. at 1635 (quoting Ristaino, 424 U.S. at 597, 96 S.Ct. at 1021). This circumstance may occur when race is an issue to be tried either as an element of the offense or a defense or where racial issues are connected with the resolution of relevant facts.

Even if racial issues are not “inextricably bound up with the conduct of the trial” — the standard underpinning the constitutional mandate — a federal court may abuse its discretion in refusing to inquire into racial prejudice if there is a “reasonable possibility” that racial prejudice will influence the jury. Rosales-Lopez, 451 U.S. at 191, 101 S.Ct. at 1635-36. Under this non-constitutional standard, courts should exercise their discretion on a case-by-case basis, taking into account the totality of the circumstances. Id. at 192, 101 S.Ct. at 1636. See, e.g., United States v. Okoronkwo, 46 F.3d 426, 433-35 (5th Cir.) (no error in refusing to question prospective jurors about racial and national origin bias where Nigerian participated in a conspiracy to file false income tax returns and defendant was concerned that Nigerians had a reputa tion in Texas for fraud), cert. denied, — U.S. -, 116 S.Ct. 107, 133 L.Ed.2d 60 (1995); United States v. Kyles, 40 F.3d 519, 524-26 (2d Cir.1994) (no error in refusing to question prospective jurors about racial prejudice where black defendant committed armed robbery against whites because the level of violence was insufficient to “ignite a jury’s potential prejudices”), cert. denied, — U.S. -, 115 S.Ct. 1419, 131 L.Ed.2d 302 (1995).

In sum, absent special circumstances of a constitutional dimension — where racial issues are “inextricably bound up with the conduct of a trial” — the conduct of voir dire is left to the trial court’s broad discretion, and 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.

In the case before us, the charges against the Barbers did not involve any element relating to race. Nor was the race of any participant an element of a legitimate defense. Moreover, the proof of facts at trial did not introduce race as an issue in the case. All seven counts of the indictment related to the financial question of whether defendants laundered money. The record is replete with evidence concerning the nature and complexity of the Barbers’ financial transactions at five different financial institutions and concerning whether, in carrying out those transactions, the Barbers laundered the proceeds of drug sales in violation of 18 U.S.C. § 1956. The only reference to race in the record is the Barbers’ argument to the court during voir dire that jurors could see that Norwood Barber is black and Linda Barber is white. We cannot conclude solely on this basis that racial issues were “inextricably bound up with the conduct of the trial.”

While the record presents no indication that the constitutional guarantee of a fair trial required voir dire into racial prejudice in this case, we must still determine whether the district court abused its discretion under the non-constitutional standard. While the Barbers did make a request for voir dire into racial prejudice, they failed to establish a “reasonable possibility” that racial prejudice might influence the jury. The only fact the Barbers relied on was that the jury could see them sitting there as an interracial couple. While counsel for Linda Barber agreed that “race [was] not an issue,” he requested voir dire into racial prejudice because it would “clear the air.” The desire to “clear the air,” however, does not establish a “reasonable possibility” that racial prejudice might influence the jury. The Supreme Court rejected similar arguments in Rosales-Lopez, holding that voir dire on racial prejudice was not required even though the defendant, a Mexican American charged with illegally bringing Mexican aliens into the country, cohabitated with the daughter of a white woman who served as a government witness. 451 U.S. at 193-94, 101 S.Ct. at 1636-37.

The dissent observes that antimiscegenation laws, which were held unconstitutional roughly 30 years ago, reflected a “prevalent social view” that mixed-race marriages were wrong and notes that “deep-seated sexual taboos ... take time to dissipate.” While acknowledging that “without doubt attitudes have changed over time,” the dissent notes, “The fact remains, no matter how much we dislike it, that we do not live in a color blind world.” The dissent concludes, therefore, that the district court committed reversible eiTor by refusing to inquire about prospective jurors’ feelings about mixed-race marriages.

As unjust as our history of racial discrimination has been and as serious as the problem of racial prejudice continues to be, we do not believe that such problems are ameliorated by elevating jurors’ views about miscegenation into relevant issues in routine money laundering cases, absent some particularized need. Just as “the raw fact of skin color” is not relevant in determining “the objectivity or qualifications of jurors,” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991), skin color of defendants is not an appropriate subject about which to inquire of prospective ju”ors when the sole issue for the jury is whether defendants are guilty of a financial crime.

To effectively ensure impartial juries and, indeed, equal protection generally, courts must focus remedies on specific racial prejudice, rather than on the effects of “past societal discrimination.” See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 109 S.Ct. 706, 728, 102 L.Ed.2d 854 (1989). In C-roson, the Court cautioned that basing particularized remedies on “past societal discrimination” would “open the door to competing claims for 'remedial relief for every disadvantaged group” and, thereby, undermine the very aspirations of the Equal Protection Clause. “The dream of a Nation of equal citizens in a society where race is irrelevant ... would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id. at 505-06, 109 S.Ct. at 728; see also Podberesky v. Kirwan, 38 F.3d 147, 155 (4th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 2001, 131 L.Ed.2d 1002 (1995). Analogously, conducting voir dire based on historical views about miscegenation in a case that does not present racial issues unnecessarily risks introducing such issues and, moreover, could open the door to voir dire demands relating to every societal prejudice. We decline to force courts down that road by requiring them to conduct such voir dire.

Moreover, we believe that the district court soundly decided in this case that voir dire questions about interracial marriage were inappropriate. The court expressed concern that to ask such questions would “inject[] race into this trial” and explained that it did “not want to see that happen.” We agree with the court that a line of questioning about interracial marriage would have created the greater risk of injustice, or its appearance, by suggesting that even in a case where race is not an issue, justice turns upon the “pigmentation of skin [or] the accident of birth.” Ristaino, 424 U.S. at 596 n. 8, 96 S.Ct. at 1021 n. 8.

Rather than highlight any one of many generalized prejudices that people may hold, the district court in this case elected — in the absence of any suggestion that a particular prejudice was inextricably bound up with the Barbers’ case or posed a reasonable possibility of harmful influence — to avoid the risk of creating issues about those prejudices by pursuing a more neutral approach. The first question directed to the prospective jurors was whether they knew of any reason why they could not “hear the facts of this case fairly and impartially and render a just verdict.” And the court asked in various contexts throughout the voir dire whether the jury could “hear the facts fairly and render a just verdict.” Finally, the court asked the entire venire toward the end of voir dire whether they were able to render a verdict “solely on the evidence presented at this trial, testimony from the witness stand, the exhibits and in the context of the law as I will give it to you in my instructions, disregarding any other ideas, notions or beliefs about the law that you may have encountered in reaching your verdict.” The jurors that were selected thus had stated under oath that they could render a fair and impartial verdict, based solely on the evidence.

In sum, we hold that the fact that the defendants in this money laundering case were partners in an interracial marriage did not, by itself, require the district court to grant their request to ask prospective jurors during voir dire about their views on interracial marriage. Moreover, we believe the district court better served the needs of justice in this instance by avoiding particularized inquiries into racial prejudice to minimize the possibility that race would play a role in the jury’s decision. Accordingly, we cannot conclude that the court’s refusal to inquire on voir dire about interracial marriage amounted to an unconstitutional abuse or other abuse of the court’s discretion in conducting voir dire.

Ill

We also conclude that the Barbers’ remaining two assignments of error are without merit. First, the Barbers contend that the district court erred in allowing the government’s expert witness to give opinion testimony that the Barbers intended to conceal the source or nature of the money involved in the subject financial transactions. They argue that IRS Special Agent Donald Seme-sky’s opinion testimony on Norwood Barber’s mental state was inadmissible under Federal Rule of Evidence 704(b).

Federal Rule of Evidence 704(b) provides in pertinent part:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.

In interpreting this provision, courts have distinguished between expert opinion testimony that describes the significance of a defendant’s actions to an illegal enterprise from opinion testimony that a defendant had an actual thought or intent. See United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992); United States v. Gomez-Norena, 908 F.2d 497, 502 (9th Cir.), cert. denied, 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990); see also United States v. Posters N’ Things, Ltd., 969 F.2d 652, 661 n. 6 (8th Cir.1992), aff'd, — U.S. -, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994).

In this case, Agent Semesky explained how the Barbers’ activities constituted concealment for purposes of money laundering. He testified, for example, that by depositing cash into a bank account and then withdrawing it, the proceeds of drug sales can be effectively concealed at several levels. First, because the deposit slip does not show the bills’ denominations, it cannot later be determined that a large number of small bills was deposited. Second, because bills used for buying drags often retain traces of drags, the deposit eliminates the possibility of linking the money to the drug trade. Third, depositing drug money into an account that contains legitimate income “lends credence or credibility to the [drag] money.” And, finally, withdrawals of large bills facilitate physical concealment because one large bill is easier to conceal than several small ones. Agent Semesky thus concluded, “So, as you can see, there are a number of concealments involved in just that simple series of transactions.” When asked why a drug dealer would represent that he is in the egg delivery business to a bank teller filling out a cash transaction form, Agent Semesky gave his opinion that such a misrepresentation would comfort the bank by suggesting that the customer has a legitimate source of income and would add “believability to deposits of some nature into a bank account.”

We find no indication in the record that Agent Semesky gave an opinion on Norwood Barber’s subjective intent in pursuing a particular activity. Rather, in each instance in which Semesky gave an opinion, he testified that objectively established conduct constituted concealment, an element of money .laundering. Thus, we conclude that the district court did not abuse its discretion in admitting Agency Semesky’s expert opinion testimony.

Finally, the Barbers contend that the evidence was insufficient to support them convictions. In determining whether the verdict is adequately supported by evidence, we do not engage in weighing the evidence. Rather, we determine only whether substantial evidence, taken in the light most favorable to the government, supports the verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Having reviewed the record in this case in the light most favorable to the government, we conclude that there was ample evidence from which the jury could have found, beyond a reasonable doubt, that the Barbers committed the offenses for which they were indicted.

For the foregoing reasons, the judgments of the district court convicting the Barbers of conspiracy and money laundering are affirmed.

AFFIRMED.