United States v. Eugene Leslie

JERRE S. WILLIAMS, Circuit Judge, with whom JOHN R. BROWN, ALVIN B. RUBIN, TATE and JOHNSON, Circuit Judges, join,

dissenting:

The broadly ranging and scholarly opinion for the En Banc Court focuses largely upon the issue of whether it violates the United States Constitution for a prosecutor in a state or federal case to use peremptory challenges for racially discriminatory purposes unless there is a pattern or practice of invidious discrimination shown in a number of cases. This is an exceedingly important issue. It is worthy of en banc consideration in this Court, and it is now before the United States Supreme Court in Batson v. Kentucky, argued Dec. 11, 1985, 54 U.S. L.W. 3445. The En Banc Court uses the Leslie case as a vehicle to confirm on this issue the Supreme Court’s seminal holding in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965).

But that is not the narrow issue posed by this case. See the panel opinion, United States v. Leslie, 759 F.2d 366, 373 (5th Cir.1985). The case which is before us is a poor vehicle to carry the load of a reexamination of that fundamental issue. Indeed, the constitutional issue of Swain was not even raised by the defendant in this case. Simply stated, appellant’s claim is that because the defendant in this federal prosecution raised the issue of possible invidious discrimination in the prosecutor’s jury challenges, the district judge properly should have inquired into that issue under the exercise of his power to insure that justice be done in federal prosecutions. Because the opinion for the Court goes far beyond this narrow claim, and because the district judge erroneously denied having any power to make such an inquiry when such power is present, I am constrained to dissent.

The prosecutor in this case may have had valid and acceptable reasons to have focused his peremptory challenges upon members of the black race. The error was that the district judge refused to inquire into the prosecutor’s reasons on the sweeping ground that he simply had no power under the law to do so. It is this assertion by the judge that he had no legal authority to inquire which is the only issue in the case before the Court. Insofar as the opin *567 ion for the Court can be read as denying that power to the district court, I insist that it is incorrect as established by well-developed and recognized legal principles.

To make the issue clear, suppose in this case that upon inquiry by the district judge the prosecutor had said something to the effect that he challenged the blacks because he did not like blacks, he did not think they are fit to sit in any case, and regardless of the nature of the case he had intentionally used the challenges to engage in racial discrimination. Under the analysis of the district judge and the majority of this Court, the holding would be that the district judge had no power to take any action to remedy this blatant racial discrimination. A fair trial to this particular defendant would be sacrificed on the altar of requiring a pattern or practice of discrimination proved statistically over a number of cases later to follow. I cannot conceive that the majority of this Court would hold if a prosecutor made such a statement in open court explaining his peremptory challenges that he was acting within his right.

The panel opinion made clear it was not barring all racial consideration in voir dire examination and in the use of peremptory challenges. United States v. Leslie, 759 F.2d at 374 . There was no negation of a power in the prosecutor and the discretion in the district judge to allow challenges seemingly on a racial basis which have rational explanations. It must be stressed again that the only issue arises because the federal district court took the position that it had no power to make such an inquiry of a prosecutor.

It is well here to be reminded of the classic definition of the federal prosecutor’s role given by the Supreme Court in the case of Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935). In that case the Court reversed a federal conviction on the ground that the government prosecutor had overstepped the bounds of propriety and fairness in the prosecution of the case. The Supreme Court explained the nature of the prosecutor’s duty and the values the duty is designed to effect:

The United States Attorney is a representative not of an ordinary party to the controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vig- or — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Id. at 88 , 55 S.Ct. at 633 (emphasis added). The panel opinion set out this quotation and then went on to quote from several other cases of this Court. For example, in United States v. Corona, 551 F.2d 1386, 1391 (5th Cir.1977), we said that a prosecutor must “conduct criminal trials with an acute sense of fairness and justice.” Then in United States v. Beckett, 706 F.2d 519 , 521 n. 5 (5th Cir.1983), we said that the cherished title “United States Attorney” is not a hunting license which exempts its holder from the ethical constraints of advocacy.

One other important and well-known introductory proposition must be stated. Although the historical roots of the peremptory challenge in the American system of justice run deep, peremptory challenges are not commanded by the United States Constitution. See McCray v. New York, 461 U.S. 961 , 103 S.Ct. 2438 , 2442 n. 7, 77 L.Ed.2d 1322 (Marshall, J., dissenting from denial of certiorari); Rosales-Lopez v. United States, 451 U.S. 182 , 188 n. 6, 101 S.Ct. 1629 , 1634 n. 6, 68 L.Ed.2d 22 (1981); Swain, 380 U.S. at 219 , 85 S.Ct. at 835 . Yet, while peremptory challenges do not have constitutional foundation, the principle which competes with the peremptory challenge in this case, the prohibition *568 against racial discrimination, is solidly grounded in the Constitution. We should at least be wary of exalting a procedure not protected by the Constitution over a clearly established constitutional principle. Even Swain clearly stands for the proposition that peremptory challenges are not wholly immune from constitutional implications. Swain holds that the use of peremptory challenges for racially discriminatory purposes as a pattern or practice violates the Constitution. The peremptory challenge is not an untouchable, as the basic thrust of the en banc opinion would have us believe.

With this preliminary statement of the issue which is actually before this Court, I now turn my attention to whether the supervisory power of the federal courts, based upon a long and honorable history, can fairly be said to support the proposition that in order to insure a fair trial, we can direct a district court to inquire into the motives of prosecutors in exercising peremptory challenges when claim is made that they may be exercising that power with invidious racially discriminatory motives.

The remainder of this opinion is directed at showing that the panel acted properly and justifiably in invoking the supervisory power of this Court. The role and the scope of the supervisory power are delineated by establishing four basic propositions. Taken together, these propositions, in my view, clearly demonstrate the correctness of the holding of the panel majority. First, this Court possesses broad supervisory powers over lower courts. Second, there is no doubt that the supervisory powers of federal courts may be used to correct injustices which do not amount to constitutional or statutory violations. Third, the supervisory power — encompassing broadly several forms of deterrence of prosecutorial misconduct — is appropriate on the facts of the present case. Fourth, although Congress undoubtedly has the right to override supervisory power rulings through legislation, Congress has not spoken with respect to the narrow holding of the panel. Each proposition is discussed in turn.

First, the federal appellate courts possess broad supervisory powers. The supervisory power doctrine was articulated over four decades ago in McNabb v. United States, 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943). As the en banc majority notes, the supervisory power allows courts to “preserve judicial integrity by insuring that a conviction rests upon appropriate considerations validly before the jury.” United States v. Hasting, 461 U.S. 499, 505 , 103 S.Ct. 1974, 1978 , 76 L.Ed.2d 96 (1983). This power has been invoked in a “surprising variety of situations. The commentators have uniformly marveled at how flexible and extensive the supervisory power is.” Imwinkelried, United States v. Payner and the Still Unanswered Questions About the Federal Courts’ Supervisory Power Over Criminal Justice, 7 J.Crim. Def. 1, 9 (1981); see also Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum.L.Rev. 1433 (1984); Hill, The Bill of Rights and the Supervisory Power, 69 Colum.L.Rev. 181 (1969); Comment, Judicially Required Rulemaking as Fourth Amendment Policy: An Applied Analysis of the Supervisory Power of Federal Courts, 72 Nw.U.L.Rev. 595, 596 (1977); Note, The Judge-Made Supervisory Power of the Federal Courts, 53 Geo.L.J. 1050, 1078 (1965).

Courts have applied the supervisory power to announce new jury selection standards for civil actions, and even to establish standards for administrative hearings. See Thiel v. Southern Pacific Co., 328 U.S. 217 , 66 S.Ct. 984 , 90 L.Ed. 1181 (1946); Woodby v. I.N.S., 385 U.S. 276 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966). The Supreme Court has used its supervisory power to reverse convictions supported by false evidence, to curtail improper practices by federal attorneys, to suppress evidence government agents gained through misconduct, to preserve a criminal contemner’s right to a jury trial, and to protect a defendant from an overzealous district court *569 judge. See United States v. Leslie, 759 F.2d at 371 (panel opinion citing extensive list of cases). The courts have also used the supervisory power to control conduct within the grand jury room, see e.g. United States v. Hogan, 712 F.2d 757 (2d Cir.1983), and to control the conduct of both prosecutors and police outside the court room. United States v. Martin, 480 F.Supp. 880 (S.D.Tex.1979). The Supreme Court has also used the supervisory power to prevent the exclusion from jury service of members of distinctive groups of the community. Thiel, 328 U.S. at 217 , 66 S.Ct. at 984 , 90 L.Ed. at 1181 (daily wage earners); Ballard v. United States, 329 U.S. 187 , 67 S.Ct. 261 , 91 L.Ed. 181 (1946) (women). 1

These examples show a supervisory power so broad and extensive that any attempt at an all-inclusive definition must necessarily fail. See Note, 53 Geo.L.J. at 1050 (“The variety of situations in which [the supervisory power] has been invoked defies any attempt to construct a definition of supervisory power which is at once comprehensive and accurate____ The sole common denominator of its usage is a desire to maintain and develop standards of fair play in the federal courts more exacting than the minimum constitutional requirements of due process.”). The reason for such a broad power is that the courts must be given the ability to preserve the integrity of the judicial system. Hasting, 461 U.S. at 505 , 103 S.Ct. at 1978 . Thus, it is no wonder that “[t]he Supreme Court undoubtedly possesses an historical power of supervision over its inferior courts; in the absence of legislative action, its power to correct lower federal court procedures deemed unfair or unjust seem subject to no substantial limitations.” Note, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656 (1963).

This Court possesses supervisory power over district courts coextensive with that possessed by the Supreme Court. “[E]very Court of Appeals ... that has confronted the issue” has laid claim to the supervisory power. Burton v. United States, 483 F.2d 1182, 1187 (9th Cir.1973) (citing numerous federal decisions); see also Cupp v. Naughten, 414 U.S. 141, 146 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973) (recognizing the lower courts’ exercise of the supervisory power); Imwinkelried, supra at 3; Beale, supra at 1455 (“[B]oth the Supreme Court and the lower federal courts have generally assumed that these courts possess supervisory authority in their own circuits or districts like that wielded by the Supreme Court on a nationwide level.”).

Thus, it must be concluded beyond dispute that the first proposition is established. This Court possesses a broad authority to correct lower court procedures under our supervisory power.

The second proposition is that the supervisory power exists to correct injustices which do not amount to statutory or constitutional violations. There is no serious doubt that this is the case. The Supreme Court held in McNabb : “[T]he scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts ... [is] not satisfied merely by observance of minimal [constitutional] safeguards____” 318 U.S. at 340 , 63 S.Ct. at 613 . The Court has steadfastly adhered to the notion that the supervisory power is an appropriate tool to correct injustices which do not amount to constitutional or statutory violations. See, e.g., Hasting, 461 U.S. at 505 , 103 S.Ct. at 1978 (“[F]ederal courts may, within limits, formulate procedural *570 rules not specifically required by the Constitution or the Congress ... to preserve judicial integrity____”); Cupp, 414 U.S. at 146 , 94 S.Ct. at 400 (“[T]he appellate court ... may likewise require [the trial court] to follow procedures deemed desirable from the viewpoint of sound judicial practice although in no-wise commanded by statute or by the Constitution.”). 2

This proposition is critical to an understanding of the difference between this dissent and the en banc majority. The basic thrust of the en banc majority appears to be that court or defense inquiry into the prosecutor’s reasons for making a peremptory strike is not a constitutional right. Since the supervisory power is a separate body of law, the constitutional arguments are not dispositive. Nor is this distinction between constitutional rights and supervisory power rulings merely a distinction without a difference. Unlike constitutional decisions, supervisory power rulings affect only the federal courts, and are subject to legislative override. As noted by Professor Beale:

Courts employing supervisory power have generally felt relatively free to adopt rules intended to promote what the courts identify as the ends of justice and good public policy. Supervisory power has proven to be an attractive vehicle for rulings that the federal courts might have been more hesitant to ground on a constitutional theory. Supervisory power rulings pose no risk of friction between the federal and state courts since by definition such rulings apply only in federal proceedings. Moreover, if a supervisory power ruling proves to be impractical or otherwise undesirable, it is far easier to alter than a constitutional decision. Supervisory power rulings may be freely revised by the courts themselves, and they are also subject to revision by legislation. As a result, supervisory power rulings have been employed to impose more rigorous standards in federal proceedings than the *571 minimal standards imposed by the Constitution.

Beale, 84 Colum.L.Rev. at 1434. Moreover, the supervisory power is designed to protect recognizable institutional goals in the federal courts. “The use of supervisory powers supports two institutional goals: deterring future prosecutorial misconduct and maintaining the integrity of the judicial process. These goals are separate from the goal of protecting a defendant’s constitutional right to a fair trial.” Note, The Exercise of Supervisory Powers to Dismiss a Grand Jury Indictment — A Basis for Curbing Prosecutorial Misconduct, 45 Ohio St.L.J. 1077, 1084 (1984); see also United States v. Sears, Roebuck Co., 719 F.2d 1386, 1394 (9th Cir.1983) (Norris, J. dissenting in part), cert. denied, 465 U.S. 1079 , 104 S.Ct. 1441 , 79 L.Ed.2d 762 (1984).

It is clear, therefore, that this Court possesses the supervisory power to correct injustices which are neither constitutional nor statutory violations. The use of the supervisory power does not constitute an “end run” around the Constitution, but rather rests upon the firm policy grounds of allowing the Court to preserve the integrity of the federal judicial system without making a ruling carrying the baggage of a constitutional decision. 3

The third proposition is that the supervisory power is appropriately applied to the facts of the present case. As noted above, the supervisory power is broadly available to insure the integrity of the judicial process. It cannot seriously be doubted that excluding blacks from juries motivated purely by invidious racial discrimination, and for no other reason, is an anathema to the concept of a fair judicial system. As one commentator has noted:

A peremptory challenge exercised on the sole ground of group affiliations suggests that a particular juror is unfit to give the defendant a fair trial, not because of her own idiosyncratic prejudices, but rather as the inevitable consequence of group antagonism. This assumption perpetuates stereotypes that are no longer tolerated in any other area of the law.

Note, The Defendant’s Right to Object to Prosecutorial Misuse of the Peremptory Challenge 92 Harv.L.Rev. 1770, 1781 (1979); see also Smith v. Texas, 311 U.S. 128, 130 , 61 S.Ct. 164, 165 , 85 L.Ed. 84 (1940) (“For racial discrimination to result in the exclusion from jury service of otherwise qualified groups ... is at war with our basic concepts of a democratic society and. a representative government.”).

The supervisory power has been used countless times to deter myriad instances of prosecutorial misconduct. See e.g., United States v. Leslie, 759 F.2d at 371 (citing several examples of use of supervisory power over prosecutors). In our criminal justice system, a prosecutor “is both an administrator of justice and an advocate ____ [His] duty ... is to seek justice, not merely to convict.” I ABA, Standards for Criminal Justice 3-1.1(b) & (c) (1980); see also Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935). Obviously, there is no place for invidious racial discrimination in the administration of justice. The supervisory power is an appropriate vehicle for insuring that a prosecutor carries out his ethical obligations. See e.g., United States v. Serubo, 604 F.2d *572 807, 818 (3d Cir.1979). We cannot know what were the prosecutor’s motives in the present case because the judge did not inquire. That is precisely the reason that the panel held that our supervisory power must be used to compel an answer from the prosecutor on the facts of this ease. 4

The en banc majority mis-characterizes the holding of the panel when it argues that this use of the supervisory power is inappropriate because it constitutes a “radical” change from preexisting law. As support for that assertion, the en banc majority cites Swain. See at 562. Swain , however, held that inquiry into the motives of the prosecutor was not a constitutional right. Swain, 380 U.S. at 222 , 85 S.Ct. at 837 (“[W]e cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.”)' (emphasis added). Swain has nothing to do with the supervisory power of this Court. 5 Indeed, on the facts of Swain , the Court could not have had any effect upon supervisory power jurisprudence, because Swain was a state prosecution, and the supervisory power as has already been pointed out applies only in federal prosecutions. Cupp, 414 U.S. at 146 , 94 S.Ct. at 400 , 38 L.Ed.2d 368 .

Other courts have exercised their supervisory authority to ensure that federal prosecutors do not employ peremptory challenges to engage in racial discrimination. For example, in United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974), my brother Rubin, then a district judge, granted a new trial under Rule 33 “in the interest of justice” because the prosecutor used all six of his peremptory challenges against blacks. 6 Likewise, in *573 United States v. Jackson, 696 F.2d 578 (8th Cir.1982), cert. denied, 460 U.S. 1073 , 103 S.Ct. 1531 , 75 L.Ed.2d 952 (1983), the trial judge issued an order granting the defendant’s motion “to prevent the use of peremptory challenges by the prosecution to strike black or other minority members from the jury ... unless the government can show good reason why a black or other minority member should be stricken____” The Eighth Circuit Court of Appeals specifically approved this use of the supervisory power. Id. at 592-93. 7

Also relevant is the recent case of United States v. Campbell, 766 F.2d 26 (1st Cir.1985). This case involved an objection by the defendant to the federal prosecutor’s use of a peremptory challenge to strike a black from his jury. District Judge Keeton at the trial held a hearing on defendant’s objection, and he personally questioned the prosecutor as to his motives in exercising the challenge. The district judge concluded that the government’s purpose in the challenge was not racially motivated. The Court of Appeals, without specifically approving or disapproving the district judge’s procedure, upheld the conviction on the ground that the finding of the district judge exonerating the prosecutor from misuse of the challenge by racial motivation was well supported in the record. This holding made inquiry into the application of the Swain rule unnecessary.

It is apparent that an attempt to eliminate the ugly spectre of invidious racial discrimination from the federal courts is an appropriate use of the supervisory power.

The fourth premise is that Congress has not spoken on the narrow issue which was the holding of the panel. The en banc majority contends that Congress through contrary legislation has effectively precluded our use of the supervisory power in a peremptory challenge case. The en banc opinion cites Rule 24(b) of the Federal Rules of Criminal Procedure and the Federal Jury Selection and Service Act of 1969, 28 U.S.C. § 1861 et seq. Neither of these congressional actions discusses the issue of whether the judge has the power to make inquiry of the prosecutor’s reasons for striking blacks when requested by the defendant. The en banc opinion erroneously attempts to characterize the panel holding broadly — as creating a right for the defendant to prevent the prosecutor from taking racial factors into account in his peremptory strikes — and then proceeds to strike down this “straw man” with congressional enactments. 8 Neither of these congressional enactments, however, even remotely mentions whether a defendant may be permitted to inquire into a prosecutor’s motive for striking all blacks from a jury panel.

Rule 24(b) speaks only to the number of peremptory challenges. It goes no further and does not define what is meant by “peremptory,” whether peremptories might not *574 be subject to limited review and supervision by the court, nor whether there might not be some point beyond which the exercise of peremptories passes beyond “arbitrary” into “intolerable”. Congress has never legislatively defined what a peremptory challenge is in the federal system. It is clear that Rule 24(b) speaks only to the number of peremptory strikes allowed, and has absolutely no substantive content regarding the definition or use of peremptory strikes. 9

Nor does the Federal Jury Selection and Service Act of 1968 constitute congressional preemption of the panel’s use of the supervisory power. The primary function of that law is to prevent discrimination in jury panels; thus, the Act focuses on the means of compiling jury lists and on juror qualifications, and it provides an “exclusive” mechanism for challenge which shuts down once “voir dire examination begins.” 28 U.S.C. § 1867 (a). Peremptory challenges and challenges for cause are mentioned only incidentally, and are reaffirmed as operating outside of the act as “provided by law.” 10 In other words, the act says nothing substantive at all about the law, the practice, the definition, or the outer limits of the peremptory challenge. 11

The panel majority held narrowly and precisely that when requested by a defendant the district court had the power to ask a prosecutor for his reasons for striking all blacks from a jury panel. That is all. This Court undoubtedly has the broad supervisory power to require such an inquiry in appropriate instances. This is a proper use of the supervisory power because it will on its face promote the interests of justice. Congress has not spoken on this question. In dissenting, therefore, I adhere to the holding of the panel. I find the broad sweep of the majority opinion uncalled for in this case. I further find justified the precise use of supervisory power to insist that a district court can inquire into suspected racial discrimination in the use of peremptory challenges by government prosecutors. Ugly in its practice and insidious in its effects, invidious racial discrimination deserves no protection in any area of society, least of all in the administration of justice in the federal courts.

. The en banc majority attempts to distinguish Thiel on the theory that "the practices there condemned constituted 'a departure from the statutory scheme.”’ At 564 (quoting Ballard). The flaw in this asserted "distinction” is that the decision in Thiel was expressly made on supervisory power grounds, not statutory grounds. See Thiel, 328 U.S. at 225, 227 , 66 S.Ct. at 988, 989 (The majority stated that its holding rested upon "our power of supervision over the administration of justice in the federal courts"). The dissent agreed that the "problem is one of judicial administration.” In Ballard, 329 U.S. at 192 , 67 S.Ct. at 263 , the Court also stated that Thiel rested on supervisory power grounds.

. The fact that the supervisory power is used in the federal courts to correct injustices not amounting to constitutional violations is graphically illustrated by comparing Marshall v. United States, 360 U.S. 310 , 79 S.Ct. 1171 , 3 L.Ed.2d 1250 (1959) with Murphy v. Florida, 421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975). In both cases jurors had been exposed to newspaper stories relating that the defendant, who did not testify, had been convicted previously of serious offenses. In both cases the exposed jurors swore to the satisfaction of the judge that they would not be influenced by the news articles and would decide the case only on the evidence. In Marshall the Court reversed the federal defendant’s conviction, but in Murphy , decided 15 years later, the Court affirmed the state defendant's conviction. The Murphy opinion made the distinction clear. The Court said that the supervisory power applies only to federal prosecutions. The Supreme Court reversed Marshall’s conviction " ‘[i]n the exercise of [its] supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts,’ and not as a matter of constitutional compulsion____ We cannot agree that Marshall has any application beyond the federal courts." Murphy, 421 U.S. at 797 , 95 S.Ct. at 2035 .

A similar pair of contrasting cases involving juror fairness is Aldridge v. United States, 283 U.S. 308 , 51 S.Ct. 470 , 75 L.Ed. 1054 (1931) and Ristaino v. Ross, 424 U.S. 589 , 96 S.Ct. 1017 , 47 L.Ed.2d 258 (1976). In both cases the black defendant was accused of killing a white police officer. In both cases the defendant requested, but was refused, voir dire examination directed to racial prejudice. The Court reversed the conviction of the federal defendant in Aldridge ; it affirmed the conviction of the state defendant in Ristaino . The distinction again made was the difference between constitutional and supervisory jurisprudence:

Although we hold that voir dire questioning directed to racial prejudice was not constitutionally required, the wiser course generally is to propound appropriate questions designed to identify racial prejudice if requested by the defendant. Under our supervisory power we would have required as much of a federal court faced with the circumstances here. Ristaino, 424 U.S. at 597 n. 9, 96 S.Ct. at 1022 n. 9.

Because Swain was a state prosecution, the supervisory power was not available on the facts of that case. Thus, the fact that Swain held that inquiry into the prosecutor’s motives was not constitutionally compelled gave no answer at all to the question of whether a federal court should attempt to effect some moderating influence on the practice by resort to its authority in "the formulation and application of proper standards for the enforcement of the federal criminal law in the federal courts.” McNabb, 318 U.S. at 341 , 63 S.Ct. at 613 .

. The en banc majority cites United States v. Payner, 447 U.S. 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980), for the proposition that " '[t]he values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the’ sixth amendment.” At 561 (quoting Payner). The Payner decision, however, does nothing to limit the scope of the supervisory power available in the present case. Payner held only that the supervisory power could not be invoked to exclude evidence seized from a third party not before the court. Id. at 753 , 100 S.Ct. at 2446 . The Payner majority distinguished supervisory power cases cited by the dissent on the ground that “none of those cases involved criminal defendants who were not themselves the victims of the challenged practices.” Id. at 735 n. 8, 100 S.Ct. at 2446 n. 8. In the present case, there is no issue involving the use of supervisory powers to aid parties not before this Court. The Payner Court specifically stated that "our decision today does not limit the traditional scope of the supervisory power in any way, nor does it render that power " ‘superfluous’ ". Id.

. The en banc majority’s argument that the supervisory power is not appropriate on the facts of this case because this case involves use of the power against the executive branch — namely, the prosecutor — rather than against a judicial officer is unpersuasive. The supervisory power has been used countless times against executive officers. In fact, McNabb itself used the supervisory power to suppress evidence in order to deter unlawful conduct of executive officials. As one commentator has noted:

McNabb cannot be confined within a definition of the supervisory power which does not transcend elementary notions of judicial housekeeping. The behavior which invoked exclusion was not that of judicial officers, but that of the police. Furthermore, it occurred at a time substantially prior to the trial itself.

Note, 76 Harv.L.Rev. at 1661; see also Hill, 69 Colum.L.Rev. at 203 ("It is disingenuous to assert that no infringement upon executive prerogatives is involved when the courts do no more than withhold the process that is invoked by the executive in a criminal prosecution."). Space limitations do not allow a citation to every supervisory power case in which executive, rather than judicial, misconduct was being deterred. See e.g. United States v. Leslie, 759 F.2d at 371 (several cases cited).

. The en banc majority quotes extensively from Swain in its discussion of the supervisory power at 562 n. 33. Several Swain quotations are used in such a way that the impression might be given that Swain held that the use of supervisory power in the manner of the panel opinion would entail a radical change from pre-existing preemptory challenge law. Swain did not so hold.

For example, n. 33 of the en banc majority reads:

Swain also explains that to subject such challenges to the kind of scrutiny that appellant here demands (emphasis added) of the district court "would entail a radical change in the nature and operation of the challenge ...” (quoting Swain ).

The en banc majority’s quotation from Swain omits the first few words of the sentence. The entire sentence actually reads "To subject the prosecutor’s challenge in any particular case to the demancb and traditional standards of the equal protection clause would entail a radical change in the nature and operation of the challenge.” Thus, the quotation in Swain was discussing the challenge under the equal protection clause, not the use of supervisory power. See McNabb, 318 U.S. at 340 , 63 S.Ct. at 613 ; Note, 45 Ohio St.LJ. at 1084 (constitutional challenge distinct from supervisory power challenge).

. The en banc majority’s undertaking to distinguish McDaniels is far short of adequate. The majority states that in McDaniels "a new trial was granted on the basis of a Swain part III claim [i.e., systematic exclusion of blacks] which was supported by [statistical evidence].” Yet Judge Rubin specifically held that the Swain test had not been met. McDaniels, 379 F.Supp. at 1248 : "The defendant here has failed to show the ‘systematic exclusion’ of blacks prohibited ... in Swain." Judge Rubin granted the new trial "in the interest of justice” despite the failure of the Swain challenge. Id. at 1249.

The majority goes on to say that "this Court specifically distinguished McDaniels on that ground in United States v. McLaurin, 557 F.2d at *573 1077 n. 19." In McLaurin, this Court held that the district court did not abuse its discretion in not ordering a new trial "in the interest of justice.” There was no statistical evidence but also there was a failure “to demonstrate — or even to offer to demonstrate — that the government had excluded the potential jurors in question for racial reasons.” 557 F.2d at 1064. While the Court did make reference to the aid given Judge Rubin by statistical evidence, nowhere does McLaurin distinguish McDaniels as resting upon Swain part III grounds.

. The en banc majority again attempts to distinguish Jackson as resting upon a successful Swain part III challenge. At 564 n. 35. It is clear, hpwever, that Jackson did not rest upon Swain grounds. See 696 F.2d at 593 n. 9 (defendant did not even attempt to make a Swain III showing).

. For example, the en banc majority cites Miner v. Atlass, 363 U.S. 641 , 80 S.Ct. 1300 , 4 L.Ed.2d 1462 (1960), for the proposition that rules of "great importance to litigants” should be reserved for congressional decision. The majority then states that the peremptory challenge system is a matter of great importance to litigants. I do not disagree. Given the panel’s holding, however, the proper question is whether the right to refuse to give a reason when invidious racial discrimination is suspected in exercising peremptory strikes is a matter of "great importance to litigants.” I submit that no one has any legitimate interest in furthering invidious racial discrimination. A refusal to provide a non-invidious reason intrinsically must be a matter "of great importance” to a litigant.

. The conclusion that Rule 24(b) has no substantive content is apparent by examining Rule 24(a) jurisprudence. Rule 24(a) specifies who may conduct the voir dire, and if the judge chooses to do so, how supplemental questions by the parties are to be asked to the jurors. Under the en banc majority's view, Congress has certainly "legislated” in the area of voir dire just as it has "legislated" in the area of peremptory strikes, so the supervisory power would not be available in either instance. But this is not so. The Supreme Court has used its supervisory power to require that voir dire questions on racial prejudice be asked. Aldridge v. United States, 283 U.S. 308 , 51 S.Ct. 470 , 75 L.Ed. 1054 (1931). This practice was approved in Ristaino v. Ross, 424 U.S. 589 , 597 n. 9, 96 S.Ct. 1017 , 1022 n. 9, 47 L.Ed.2d 258 (1976).

. Subsections (3) and (4) of the provision in 28 U.S.C. § 1866 (c) specify "[t]hat any persons summoned for jury service may be ... (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by a party for good cause shown____" (emphasis added).

. The en banc opinion refers to H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1795, for the following quotation: "[T]he bill leaves undisturbed the right of the litigant to exercise his peremptory challenges ...” This comment adds nothing substantive to what is "provided by law" for peremptory practices. This dissent could equally cite the following passage in the House Committee Report, at 1797, and yet not advance my legal argument either:

Jury performance will be enhanced as well by closer approximation of the cross sectional goal under the bill. It must be remembered that the jury is designed not only to understand the case, but also to reflect the community’s sense of justice in deciding it. As long as there are significant departures from the cross sectional goal, biased jurors are the result — biased in the sense that they reflect a slanted view of the community they are supposed to represent.