Petition — Cosby v. United States

Supreme Court, U. Ss

FILED

MAR 26 1976

NCHAEL RODAK, JR

CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

7

WILLIAM COSBY,

Defendant-Petitioner.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

ROBERT A. HAMPE

1108 Olive Street, Fifth Floor

St. Louis, Missouri 63101

(314) 621-1701

Attorney for Petitioner

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

™ J , es

~ .

INDEX

Page

Cer eer rere. Troy re l

eR ee aE ee tent eae Pate ee sy mapa yi 1 2

coe eee eds aban ba eee bee 2

Constitutional Provision and Statute Involved ......... 2

e.g oa e's bie Ook a ee ee ee 3

A. Comvictiom O96 SOMOOMCE 2... ccc ccc cccscccces 3

es ee Se ID 6 bn nc ce cnnksdeseuwene 3

Reasons for Granting the Writ ..............00e0eeee 5

OEE 9b 6c a5.c caus apaehiys shes 54008 o 04404 boas A-1

Cases Cited

Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519 (1950) 5

Gorin v. United States, 313 F.2d 641 (7th Cir. 1963) .. x

Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848

SD as Sp Oa ba a6 6 06 Oa ea er eee 5,6,7,8

Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961) .... =5

Kuzniak v. Taylor Supply Company, 471 F.2d 702 (6th

Sos eek ee ead ale oe eee eee 4

Morford v. United States, 339 U.S. 258, 70 S.Ct. 586

SE cc oa ead SG bea aa ab eke ae eee eee 5

Ristaino v. Ross, No. 74-1216, — U.S. —-, 18 Cr.L. 3082

PR. Sake tus’ uad ceed eeea lee ee Pea ee 8,9

**

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824 (1965) .. 5,7

United States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974) 9

United States v. Blount, 479 F.2d 650 (6th Cir. 1973) ... 7

United States v. Booker, 480 F.2d 1310 (7th Cir. 1973) 9

United States v. Carter, 440 F.2d 1132 (6th Cir. 1971) 9

United States v. Cosby, No. 75-1570 — F.2d — (8th Cir.

re aa a een oea a eae ak Ba aoe ar 4.8

United States v. Gassoway, 456 F.2d 624 (Sth Cir. 1972) 8

United States v. Grant, 494 F.2d 120 (2nd Cir. 1974) ... )

United States v. Martin, 507 F.2d 428 (7th Cir. 1974) .. 8

United States v. Perez-Martinez, 525 F.2d 365 (9th Cir.

RS es el ey cen te ee ee arene 4

United States v. Robinson, 475 F.2d 376 (D.C. Cir. 1973) s

United States v. Wooton, 518 F.2d 943 (3rd Cir. 1975) .. 7

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770

IERIE ha Mae Ren Be AB So pel an AP ed Pe 5

Statutes Cited

Rule 24(a) Federal Rules of Criminal Procedure ........ 2,8

Sixth Amendment, United States Constitution .......... 2

as ae abe ke Te ee. ae 3

- fo) "si ee een ee ae bene 2

Text Cited

Babcock Voir Dire: Preserving “Its Wonderful Power,” 27

EO RE er ee 7

Spears, Voir Dire: Establishing Minimum Standards to Fa-

cilitate the Exercise of Peremptory Challenges, 27 Stan.

nn a a eal wale se Gala eh eee es 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

RE

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

V.

WILLIAM COSBY,

Defendant-Petitioner.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Petitioner prays that a Writ of Certiorari be issued to review

the judgment of the United States Court of Appeals for the

Eighth Circuit in this case.

OPINION BELOW

The opinion of the Court of Appeals has not yet been re-

ported, but is appended hereto as Exhibit A.

JURISDICTION

The judgment of the Court of Appeals was entered on

February 9, 1975. A petition for Rehearing and Rehearing In

Banc was denied on February 27, 1976. (Exhibit B) The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the defendant in a criminal case is entitled to have

prospective jurors voir dired regarding the presumption of in-

nocence of the defendant and the Government's burden of

proof of beyond a reasonable doubt.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

1. The Sixth Amendment to the United States Constitution

provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the

right toa... trial, by an impartial jury... .

2. Rule 24(a) of the Federal Rules of Criminal Procedure

provides that:

The Court may permit the defendant or his attorney and

the attor’y for the Government to conduct the examina-

tion of prospective jurors or may itself conduct the ex-

amination. In the latter event, the Court shall permit the

defendant or his attorney and the attorney for the Govern-

ment to supplement the examination by such further in-

quiry as it deems proper or shall itself submit to the

prospective jurors such additional questions by the parties

or their attorneys as it deems proper.

STATEMENT OF FACTS

A. Conviction and Sentence

Petitioner, William Cosby, was convicted by a jury in the

United States District Court for the Eastern District of Missouri

on two Counts of a ten-count indictment that charged that

during January and February, 1975, the Petitioner and two

other men had unlawfully distributed substantial quantities of

heroin in the City of St. Louis, Missouri in violation of 21

U.S.C. § 841 (a1). The District Court imposed concurrent

sentences of twelve years imprisonment on each Count to be

followed by a special parole term of three years. The Court

of Appeals affirmed.

B. Voir Dire Examination

At trial, the voir dire examination of the prospective jurors

was conducted by the Court. At the conclusion of the indi-

vidual questioning of each member of the panel by the Court,

counsel for Petitioner submitted seven questions to be asked of

the veniremen. The seven questions were:

1. Is there anyone on the panel who argues with the

proposition that the Government must prove the defend-

ant guilty beyond a reasonable doubt?

2. Is there anyone on the panel who argues with the

proposition that the Government has the burden of proof?

3. Is there anyone on the panel who argues with the

proposition that the defendant is presumed innocent unless

and until the Government meets its burden of proving guilt

beyond a reasonable doubt, if the Government ever does?

4. Is there anyone on the panel who does not look at

the defendant and presume him to be innocent as he sits

before you?

a vem

5. Is there anything about the nature of the offense, sale

of narcotics which would affect your ability to judge this

case fairly on the evidence you hear?

6. Is there anything about the fact that the defendant

is a black man that would affect your ability to judge this

case fairly on the evidence you hear; in other words, would

any of you be more inclined to find the defendant guilty

or not guilty because he is black?

7. Those of you who had prior jury service, what was

the nature of the charge?

The Court refused to ask questions 1-4 for the reason that

the jury would be instructed on the law on those matters. The

Court agreed to interrogate the panel as to questions 5, 6, and

7. Defense counsel's objection was overruled.

On appeal to the Eighth Circuit, Petitioner argued that the

refusal to question the venireman on the matters contained in

Defense questions 1-4 deprived the Petitioner of his constitu-

tional right to be tried by an impartial jury and thus required

reversal. The Court of Appeals for the Eighth Circuit held

that,

“. . . the District Court adequately protected the procedural

rights of the defendant when it told the jury that the

indictment was not any evidence of guilt and when it ascer-

tained that the jurors would be willing to be governed by

the Court's instructions as to presumption of innocence,

burden of proof, and other instructions of the Court, and

that the District Court did not abuse its discretion when

it refused to ask the members of the panel whether they

“argued” with the legal principles that have been men-

tioned. The jurors were obligated by their oath to accept

the law as given them by the Court and to return a verdict

in accordance with the law and the evidence, and the pre-

sumption is that the jurors did their duty.” United States

v. Cosby, No. 75-1570 — F.2d — (8th Cir. 1976) at

pg. 12.

REASONS FOR GRANTING THE WRIT

1. Because the restraints and limitations that may be consti-

tutionally placed on voir dire are subject to consideration at every

single criminal and civil trial throughout the United States and

the subjects of the voir dire questions refused in this case are

basic concepts common to every criminal trial.

The importance of voir dire has been acknowledged by every

Court which has ever considered the limitations and restrictions

that may properly be placed upon the interrogation of venire-

men. Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848

(1973); Swain v. Alabema, 380 U.S. 202, 85 S.Ct. 824 (1965).

As Justice Marshall explained in his concurring opinion in

Ham, supra,

“the right to challenge members of a jury panel was one of

the most important rights secured to an accused and...

the right to challenge has little meaning if it is unaccom-

panied by the right to ask relevant questions on voir dire

upon which the challenge for cause can be predicated.”

Id. 409 U.S. at 533, 93 S.Ct. at 853.

It is not surprising, then, that this Court has on severa! oc-

casions invalidated decisions and awarded new trials where the

accused had been restricted in his jury voir dire. And while most

of these cases have involved refusal to interrogate the prospective

jurors regarding racial prejudice, e.g. Ham v. South Carolina,

supra; Swain v. Alabama, supra; these reversals have not been

confined to any specific area of juror bias. See Witherspoon

v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968) (Capital Pun-

ishment); /rvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639 (1961)

(Pretrial Publicity); Morford v. United States, 339 U.S. 258,

70 S.Ct. 586 (1950) and Dennis v. United Siates, 339 U.S. 162,

70 S.Ct. 519 (1950) (Communist affiliation).

_ =

And it is proper and necessary that the accused is not con-

fined during his voir dire to specific areas.

“It makes little difference to a criminal defendant whether

the jury has prejudged him because of the color of his skin

or because of the length of his hair. In either event, he has

been deprived of the right to present his case to neutral and

detached observers capable of rendering a fair and im-

partia! verdict.” Ham v. South Carolina, supra (Marshall

dissenting), U.S. at 532-533 S.Ct. at 853.

Of course, the majority opinion in Ham found it impossible to

constitutionally distinguish possible prejudice against beards

from a host of other possible prejudices and therefore upheld

the decision of the Trial Court to refuse to question the jurors

on that subject.

However, the distinctive quality that was absent in Ham

is readily apparent in this case. The questions submitted by

counsel to be asked of the veniremen did not concern personal

attributes or features of the Petitioner, subjects which may be

considered trivial and insignificant when balanced against the

time consumed in questioning. Rather, the four questions re-

fused by the Trial Court dealt with concepts which are basic

to our system of criminal justice and form an integral part of

every criminal trial in this country, to-wit, the presumption of

innocence of the accused and the Government's burden of proof

beyond a reasonable doubt.

Certainly, these concepts are as well entrenched and of the

Same constitutional stature as the ban on racial prejudice. And

it is certainly just as important to the accused that he be aware

of any juror prejudice against him because he has been accused

of a crime or because of an inherent belief that an accused should

prove his innocence as it is that he know of any racial prejudice.

To allow this decision, a decision which really fails to con-

sider the constitutional issues involved, to stand, would open

—7— YF

the doors to severe restrictions on jury voir dire in all areas

other than racial prejudice.

2. The United States Courts of Appeals are in conflict over

this issue.

The opinion handed down in this case by the Eighth Circuit

apparently adopts the rationale of United States v. Wooton,

518 F.2d 943 (3rd Cir. 1975). That case held that the trial

court did not abuse its discretion in precluding examination of

prospective jurors as to whether they could accept the proposi-

tion that the Government must prove every material element of

the crime charged beyond a reasonable doubt.

In reaching that decision, the Third Circuit recognized that its

opinion was contrary to the opinion of the Sixth Circuit Court

of Appeals in United States v. Blount, 479 F.2d 650 (6th Cir.

1973). The Sixth Circuit had held that the failure of the trial

court to ask the prospe.tive jurors if they could accept the

proposition that the defendant was presumed innocent and the

Government had the burden of proving him guilty beyond a

reasonable doubt was reversible error.

In light of these contrary decisions it is clear that definitive

ruling by this Court is needed to determine the propriety of a

failure to interrogate prospective jurors on these matters.

3. The need for judicial guidelines as to the content and

method of voir dire.

As important as voir dire may be toward insuring a trial

by an impartial jury, Swain v. Alabama, 380 U.S. 202 (1965);

Ham v. South Carolina, 409 U.S. 524 (1973); Babcock Voir

Dire: Preserving “Its Wonderful Power,” 27 Stan.L. Rev. 545

(1975), there are few guidelines as to the content and method

of interrogating a jury venire.

=

Rule 24(a) of the Federal Rules of Criminal Procedure pro-

vides that:

The Court may permit the defendant or his attorney ana

the attorney for the Government to conduct the examina-

tion of prospective jurors or may itself conduct the exam.

ination. In the latter event the Court shall permit the

defendant or his attorney and the attorney for the Govern-

ment to supplement the examination by such further

inquiry as it deems proper or shall itself submit to the

prospective jurors such additional questions by the parties

or their attorneys as it deems proper.

In other words, the District Court has broad discretion to

control the scope of the voir dire examination 7am v. South

Carolina, supra; Ristaino v. Ross, No. 74-1216, — U.S. —-.

18 Cr.L. 3082 (1976), and “it is only rarely that a supposed

deficiency in a voir dire examination will call for correction

by an appellate Court.” United States v. Cosby, No. 75-1570,

— F.2d — (8th Cir. 1976) at pg. 9.

Unfortunately, case law fails to provide a clear analysis of

when these rare instances arise. The conflict among the ap-

pellate circuits over the issue raised in this petition has already

been described. But there is also conflict in many other areas

regarding voir dire.

For example, in United States v. Robinson, 475 F.2d 376

(D.C. Cir. 1973) and United States v. Martin, 507 F.2d 428

(7th Cir. 1974), the courts held that it was error to refuse to

question prospective jurors whether they would lend more

credence to the testimony of police officers than other witnesses

merely because they were police officers. But in United States

v. Gassoway, 456 F.2d 624 (Sth Cir. 1972) and Gorin v. United

States, 313 F.2d 641 (7th Cir. 1963) the Courts held that such

a refusal was not error.

a wo

In the recent decision of Ristaino v. Ross, supra, this Court

explained that a black defendant had no constitutional right

per se to have the veniremen questioned about racial prejudice.

But the Court did not discuss whether, assuming error in the

voir dire, this constituted reversible error. The Seventh Circuit,

in United States v. Booker, 480 F.2d 1310 (7th Cir. 1973),

and the Sixth Circuit, in United States v. Carter, 440 F.2d 1132

(6th Cir. 1971), have held that the refusal to interrogate as

to racial prejudice is reversible error, regardless of the evidence

of guilt. The Second Circuit, in United States v. Grant, 494 F.

2d 120 (2nd Cir. 1974), held that such a refusal constituted

harmless error where there was substantial evidence of guilt.

Furthermore, while this Court in Ristaino v. Ross, supra, de-

cided that the refusal to inquire into racial prejudice did not

raise issues of constitutional dimensions, the Court did state

that under its supervisory power, a federal court would have

been required to have inquired on this matter. Id. at 3084,

f.n. 9.

But the Court did not set forth any guidelines that the Federal

Courts could follow and thus did not help solve another of the

conflicts between the Circuits regarding jury voir dire, to-wit:

races and backgrounds about which the jury must be ques-

tioned. Compare Kuzniak v. Taylor Supply Company, 471 F.

2d 702 (6th Cir. 1972), where it was held reversible error to

refuse to question jurors about prejudice against Austrian Na-

tionals where one party was an Austrian National, and United

States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974), where

it was reversible error to refuse to question specifically about

racial prejudice against Indians, with United States v. Perez-

Martinez, 525 F.2d 365 (9th Cir. 1975), where it was not error

to refuse to question about prejudice against Cubans.

Petitioner feels that it is mandatory that this Court establish

guidelines which lower courts and attorneys can follow in su-

=

pervising and conducting voir dire. For as a recent law review

article states:

“Present standards of appellate review of voir dire issues

reaffirmed by tne Supreme Court in Ham neither assure

the informed exercise of peremptories nor offer guidance

to trial courts confronted with the hard choices of defining

the proper scope of voir dire. Accordingly, while varia-

tions in practice exist at the state and federal levels; many

Courts seem to view voir dire as an either/or choice be-

tween limiting questions solely to showing grounds for

cause, or allowing inquiry into as many areas as there

are conceivable reasons for exercising peremptories. At

both extremes—either because the voir dire is too perfunc-

tory to serve its intended purpose or because it is so un-

supervised that counsel misuse it—potentially serious con-

sequences of jury bias or wasted court time may ensue.”

Spears, Voir Dire: Establishing Minimum Standards to

Facilitate the Exercise of Peremptory Chailenges, 27 Stan. APPENDIX

L.Rev. 1493 (1975).

This same article has suggested such guidelines and peti-

tioner has attached them hereto as Exhibit C.

For the foregoing reasons, it is respectfully requested that

this Petition for Writ of Certiorari be granted.

ROBERT A. HAMPE

1108 Olive Street, Fifth Floor

St. Louis, Missouri 63101

(314) 621-1701

Attorney for Petitioner

— =

United States Court of Appeals for the Eighth Circuit

No. 75-1570

United States of America, )

Appellee, | Appeal from the United

v. States District Court

for the Eastern Dis-

William Cosby, trict of Missouri.

Appellant.

Submitted: December 10, 1975

Filed: February 9, 1976

Before Lay, Bright and Henley, Circuit Judges.

Henley, Circuit Judge.

William Cosby, appellant here and defendant below, was

convicted by a jury in the United States District Court for the

Eastern District of Missouri' on two counts of a ten-count in-

dictment that charged that during January and February, 1975

the defendant and two other men, Phelbert Angle and Danny

Joseph Mayer, had unlawfully distributed substantial quanti-

ties of heroin in the City of St. Louis, Missouri in violation

of 21 U.S.C. § 841(a)(1). The defendant was convicted on

Counts IV and VII of the indictment in which counts both he

and Angle were named as defendants. The district court im-

posed concurrent sentences of twelve years imprisonment on

each count to be followed by a special parole term of three years.

Defendant appeals.

' The Honorable H. Kenneth Wangelin, United States District

Judge.

—_ =

The fourth count of the indictment charged that on or about

January 30, 1975 the defendant and Angle unlawfully distrib-

uted 6.80 grains of heroin, and the seventh count charged that

on or about February 26, 1975 the defendant and Angle un-

lawfully distributed 2.42 grains of heroin.* It will be observed

that in neither of those counts was the distributee of the drug

identified nor was a distributee identified in any of the other

counts of the indictment.

Numerous pretrial motions were filed on behalf of the de-

fendant and he was able to obtain a good deal of information,

most of it negative, from government counsel. Counsel for the

defendant did not move for a bill of particulars and did not

specifically request that the distributee of the drugs mentioned

in Counts IV and VII be identified. Counsel did call upon the

government to produce any informant involved in the case, and

the government responded by saying that no informant was

involved.

At the commencement of the trial defense counsel submitted

seven written questions that he asked to be propounded by the

trial judge to the members of the jury panel in the course of

voir dire examination which was to be conducted by the trial

judge personally. See Fed. R. Crim. P. 24(a). Four of those

questions would have inquired of the members of the panel as

to whether they agreed with certain fundamental concepts of

American criminal procedure such as the presumption of inno-

cence, burden of proof, and reasonable doubt. The other three

questions dealt with other matters, including the possibility of

racial prejudice. Cosby is a black man.

* The first, second, third and fifth counts charged Angle alone

with unlawful distributions. The sixth, eighth, ninth and tenth counts

charged Mayer alone with unlawful distributions. Angle and Mayer

each pleaded guilty to one count in which they, respectively, were

named as defendants; the other counts against them presumably were

dismissed. The defendant, Cosby, stood trial alone.

—* po

The district court indicated that he would interrogate the

jury with respect to the ground covered by the last three ques-

tions but would not propound the first four because “I will

instruct the jury on what the law is on those matters and I

assume they'll follow my instructions.” We will return to this

subject in due course.

After opening statements had been made, the government

called a number of witnesses, introduced certain exhibits, and

rested. Counsel for the defendant then moved for a judgment

of acquittal on the ground that there was a fatal variance be-

tween the charges against him and the government's proof.

That motion was denied. The defendant then rested with the

government; the case was argued, and the jury instructed. As

indicated, the defendant was found guilty on both of the counts

against him.

The defendant contends for reversal that the district court

erred in refusing to propound, at least in substance, the first

four voir dire questions suggested by defense counsel,’ and that

the district court erred in denying the defendant's motion for a

judgment of acquittal.

From the evidence in the case the jury was justified in find-

ing substantially the following facts, which were not disputed

except to the extent that defense counsel undertook by cross-

' The four questions are:

|. Is there anyone on the panel who argues with the proposi-

tion that the Government must prove the defendant guilty be-

yond a reasonable doubt?

2. Is there anyone on the panel who argues with the proposi-

tion that the Government has the burden of proof?

3. Is there anyone on the panel who argues with the proposi-

tion that the defendant is presumed innocent unless and until

the Government meets its burden of proving guilt beyond a rea-

sonable doubt, if the Government ever does?

4. Is there anyone on the ee who does not look at the

defendant and presume him to be innocent as he sits before you?

— ~ pe

examination to break down the testimony of government wit-

nesses:

In the winter of 1975 the defendant was selling heroin in

St. Louis, and Angle and Mayer were customers of his. Both

Angle and Mayer were heroin addicts. Angle had been using

the drug for some twenty or twenty-five years; Mayer had been

using it for about four years. During January, 1975 Angle and

Mayer shared the same apartment in St. Louis, but Angle had

moved out shortly before the date alleged in Count VII of the

indictment.

During January and February, 1975, Benny L. Green, a de-

tective employed by the St. Louis Police Department, was con-

ducting an undercover operation relating to the illicit drug

traffic in the City. Green had dealings with both Angle and

Mayer, neither one of whom was aware that Green was a law

enforcement officer. Green had no direct dealings with the de-

fendant.

On the occasion mentioned in Count IV of the indict-

ment, Green was able to obtain from the defendant the quan-

tity of heroin mentioned in that count. The defendant dealt

directly with Angle who was acting as Green's intermediary;

Angle paid for the heroin with money furnished by Green and

turned the drug over to Green. Green obtained the heroin

mentioned in Count VII of the indictment in substantially the

same way in which he had obtained the drug mentioned in

Count IV. As to the transaction which resulted in Count VII,

Mayer participated to some extent, supplied some of the money

that was given to Angle and that went ultimately to the defend-

ant, and received for his own use or resale some of the heroin

that Angle acquired from the defendant.

The defendant knew of course that he was selling heroin to

Angle, and he probably also knew that Angle was in turn dis-

posing of all or part of the substance by selling or otherwise

distributing it to others. Naturally, the defendant did not know

—_S

that Angle was turning the drugs over to an undercover police

officer. Neither did Angle or Mayer.

Defendant's claim of variance is that the indictment charged

the defendant and Angle with a joint distribution of heroin to

a third person whereas the proof showed that actually the de-

fendant sold the heroin to Angle, and that Angle later “dis-

tributed” the drug to Green. To put it slightly differently, de-

fendant argues that the indictment charges that he and Angle

were engaged in a “joint venture” of selling drugs to third par-

ties whereas there was no such joint enterprise.

In view of the evidence in the case we see no merit in this

contention.

Fed. R. Crim. P. 52(a) provides that an error, defect, irreg-

ularity, or variance that does not affect substantial rights is to

be disregarded. A variance between indictment and proof in a

criminal case may prejudice a defendant substantially if it pre-

vents him from presenting his defense properly, if it takes him

unfairly by surprise, or if it exposes him to the risk of double

jeopardy. But unless such a variance prejudices the defendant

in one or more of those ways, it is not fatal. United States v.

Good Shield, 515 F.2d 1 (8th Cir. 1975), and cases there

cited.

We will assume, at least for purposes of discussion, that a

variance exists where an indictment charges a joint distribu-

tion of heroin by two defendants to an unidentified distributee

and the proof shows that the defendant complaining of the vari-

ance in fact sold the heroin to the other defendant who in turn

passed it on to an ultimate distributee identified in the evidence.

In this case, however, we do not see that the assumed variance’

adversely affected any substantial rights of the defendant.

4 We are not at all sure that the alleged variance of which the de-

fendant complains was really a variance. Both the defendant and

eS

In a prosecution for an unlawful distribution of heroin un-

der § 841(a)(1)} the identity of the distributee is not an essen-

tial element of the offense charged, and the government is not

required to identify the distributee in the indictment. United

States v. Martin, 482 F.2d 202 (8th Cir. 1973). The same rule

prevailed with respect to indictments returned under then ex-

isting prohibitions of sales of narcotics appearing in the Inter-

nal Revenue Code of 1954. United States v. Crockett, 421 F.

2d 649 (8th Cir. 1970); McWilliams v. United States, 394 F.

2d 41 (8th Cir. 1968), cert. denied, 393 U.S. 1044 (1969);

Hemphill v. United States, 392 F.2d 45 (8th Cir.), cert. denied,

393 U.S. 877 (1968); Aggers v. United States, 366 F.2d 744

(8th Cir. 1966), cert. denied, 385 U.S. 1010 (1967).

The very fact that the defendant and Angle were charged

with what may be construed as a joint distribution to an un-

named distributee was in itself sufficient to put the defendant

and his attorney on notice that a third person was involved,

and defense counsel must have known in view of the indictment

that the third person was in all probability either an informant

or a law enforcement officer who would surface in due course. '

Had counsel filed a motion for a bill of particulars inquiring

as to the identities of the distributees in question, that informa-

tion would in all probability have been supplied. See Aggers

v. United States, supra, 366 F.2d at 746-47. But no such mo-

tion was filed.

The government did not mislead counsel when it advised

that no informant was involved in the case because Green, An-

Angle “distributed” the heroin referred to in the respective counts,

and both violated the law when they did so. Both transactions can

be viewed as continuous movements of heroin from the defendant

to Green with Angle acting as a culpable intermediary; or, they can

be characterized as sales from defendant to Angle with the subsequent

transfers to Green being immaterial; or, it can be argued that the

defendant knowingly aided and abetted Angle in an unlawful dis-

tribution of the heroin to Green.

—_S pe

gle and Mayer were not informants. Green was a police officer

on duty, and Angle and Mayer were drug users and peddlers

who did not know that they were dealing with an officer and

that they would be prosecuted for their dealings.

With knowledge that no informant was involved, the defense

probably knew that the unidentified distributee was an officer.

In any event, it is plain from the record that the defendant and

his attorney were not surprised at trial when Detective Green

took the stand and when he and other witnesses revealed that

the heroin that had passed originally from the defendant to

Angle had in turn been passed on to Green.

Nor did the disclosure that Angle had been acting as an un-

witting intermediary between the defendant and the police ad-

versely affect the defendant in preparing his defense. In fact,

he had no defense except to put in issue by his plea of not

guilty all of the essential elements of the offenses charged and

then hope that the jury would not be convinced beyond a rea-

sonabie doubt of the existence of those elements.

It appears to us that the defendant's trial tactics would have

been no different from what they were had the indictment al-

leged in terms that the heroin had ultimately been passed on

to Green by Angle, or had the defendant and Angle been in-

dicted separately with respect to the sales of January 30 and

February 26, or had no mention of Angle been made in the

fourth and seventh counts of the indictment.

To our minds there is no possibility that the defendant will

be prosecuted again for either of the sales in question.

Hence, we conclude on this phase of the case that the vari-

ance between charge and proof, if there was a variance, was

not a fatal one.

As to the complaint about the district court's refusal to pro-

pound to the jury four of the voir dire questions suggested by

—_"

defense counsel, it appears that the questions were at least some-

what argumentative in form, and defense counsel concedes that

the district court was not required to ask the questions in the

precise form suggested by counsel. Counsel contends, however,

that the district court should have explored more fully than it

did the attitude of the prospective Jurors about the legal pre-

sumption that a defendant is innocent until proven guilty and

about the proposition that the burden is on the government to

prove the guilt of the defendant by evidence and beyond a

reasonable doubt. And counsel argues that the district court

committed prejudicial error when it failed to go into those

matters more deeply.

In passing upon this argument we do not minimize the

importance of the role that a voir dire examination of prospec-

tive jurors should play in any trial, whether civil or criminal.

On the other hand, we are required to recognize that the form

and scope of a voir dire examination are matters that are left

largely to the discretion of the trial judge and that it is only

rarely that a supposed deficiency in a voir dire examination

will call for correction by an appellate court. See, e.g., Ham

v. South Carolina, 409 U.S. 524 (1973); Aldridge v. United

States, 283 U.S. 308 (1931); United States v. Nance, 502 F.

2d 615 (8th Cir. 1974), cert. denied, 420 U.S. 926 (1975);

United States v. Bear Runner, 502 F 2d 908 (8th Cir. 1974):

United States v. Thompson, 490 F.2d 1218 (8th Cir. 1974).

See also 2 Wright, FEDERAL PRACTICE & PROCEDURE, CRIMI-

NAL, § 381.

We have given very careful consideration to the transcript

of the voir dire interrogation of the jurors by the district court

and have also considered certain preliminary instructions that

were siven to the jurors who were selected to try the case, and

to the final binding instructions as to the law that were given

to the jury. We find defendant's contention that the voir dire

examination was deficient is without any real substance.

—_

To start with, we find that the interrogation conducted by

the district court was detailed, careful and searching and was

designed primarily to find out whether the prospective jurors

were free from bias or prejudice and whether they could give

the defendant a fair and impartial trial irrespective, among

other things, of the nature of the charge against the defendant,

of the defendant's race, and of their prior experience as jurors.

And other possibilities of unfairness or partiality were explored.

Nor did the district court overlook the legal concepts em-

braced in the suggested questions which the court declined to

propound.

At a very early stage of the examination and before the trial

court declined to propound the four questions with which we

are concerned, the court, after reading the two counts of the

indictment in which the defendant was charged, told the jury

in plain terms that the indictment that had been returned by the

grand jury was simply a method of bringing the defendant to

trial and informing him of the charge against him, that the in-

dictment was not evidence and afforded no basis for an infer-

ence of guilt, and that the government had the burden of prov-

ing the defendant guilty beyond a reasonable doubt. At a later

stage of the voir dire, and after the district court had declined

to propound the first four questions suggested by defense coun-

sel, the court said:

Now, ladies and gentlemen, you will have questions put

to you and instructions put to you concerning the pre-

sumption of innocence and that the burden of proof is on

the government and I will instruct you on those things

and other things from time to time, but I want to know

at this time if there is anybody on this panel who has any

preconceived ideas about what the law is in this case or

any other case. Now, you know a lot of people, you get

some street corner law and you get some advice here and

there and the other, but is there anybody who has got

— A-10 —

any idea about what the law is that is so fixed in your

mind that you will disregard any instruction that I give

you. In other words, will you abide by my instructions

as to what the law is as to the presumption of innocence,

the burden of proof or any other instruction I give you

in this case? If there’s anybody who will not, raise your

hand.

No hand was raised.

And the district court also stated, “* * * if there’s anybody

here who for any reason cannot give both sides an absolutely

fair and impartial hearing if they’re chosen to serve here;

if you can’t do it, just raise your hand at this time.” Again, no

hand was raised.

Thereafter, a jury of twelve and one alternate was selected

and sworn to try the case. Before opening statements were

made the district court gave the jurors some preliminary instruc-

tions that included the following statement:

Faithful performance by you of your duties is vital to

the administration of justice. The law applicable to this

case will be contained in the instructions I give you during

the course of the trial and it is your duty to follow all such

instructions * * *”

In the course of the district court’s final charge to the jury,

that body was fully, fairly and correctly instructed about pre-

sumption of innocence, burden of proof, and reasonable doubt,

and the court specifically told the jury that the law never im-

poses upon a defendant in a criminal case the burden of calling

or duty to cal] witnesses or produce witnesses in his behalf.

As to the voir dire examination itself, we think that the dis-

trict court adequately protected the procedural rights of the

defendant when it told the jury that the indictment was not

— A-Il —

any evidence of guilt and when it ascertained that the jurors

would be willing to be governed by the court's instructions as

to presumption of innocence, burden of proof, and other in-

structions of the court, and that the district court did not abuse

its discretion when it refused to ask the members of the panel

whether they “argued” with te legal principles that have been

mentioned. The jurors were obligated by their oath to accept

the law as given them by the court and to return a verdict in

accordance with the law and the evidence, and the presump-

tion is that the jurors did their duty.

A voir dire problem cuite similar to the one that we have

just discussed was before the Court of Appeals for the Third

Circuit recently in United States v. Wooton, 518 F.2d 943 (3d

Cir. 1975), and our conclusion that the district court did not

err in this case as far as scope of voir dire is concerned accords

with the result reached in that case.

No errors appearing, the judgment of the district court is

affirmed.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

— A-12 —

United States Court of Appeals

for the Eighth Circuit

St. Louis, Mo. 63101

Robert C. Tucker Clerk

February 27, 1976

Mr. Robert A. Hampe

1108 Olive Building

Sth Floor

1108 Olive Street

St. Louis, Missouri 63101

Hon. Donald J. Stohr

United States Attorney

St. Louis, Missouri

Re: No. 75-1570. U.S. v. William Cosby

Dear Sirs:

Enclosed herewith please find copy of an order entered by us

today at the direction of the Court.

Very truly yours

ROBERT C. TUCKER

Clerk

db

Enc.

—_ =)

United States Court of Appeals

for the Eighth Circuit

75-1570 September Term, 1975

The United States, Appeal from the

Appellee, | United States Dis-

VS. trict Court for the

= Eastern District of

William Cosby, | eet

Appellant. )

The Court having considered petition for rehearing en banc

filed by counsel for appellant and, being fully advised in the

premises, it is ordered that the petition for rehearing en banc

be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

February 27, 1976

Proposed Guidelines for Voir Dire Examination

1. The content of questioning shall be determined during

pretrial proceedings. The Court shall permit inquiry into any

area connected with (1) a significant legal or factual aspect of

the case, or (2) a conspicuous characteristic of a party or an

important witness.

Where a particular bias being probed is of a novel character,

the proponent of that line of questioning may be required to

lay a foundation for the inquiry by showing the likely existence

of that bias among potential jurors in the community. If the

proponent desires to ask questions not connected on their face

with the case or party, he may be required to demonstrate the

ao Siphon

connection of these questions with biases that are more obviously

related to the case or party.

A proponent is not required to demonstrate that a particular

bias, if present, would in fact skew the jury’s deliberations, nor

on appeal must he show actual prejudice resulting from the fail-

ure to have a qualifying question put to the jurors. Rather, all

nontrivial biases coming within the definitions of the preceding

paragraphs are presumed to deny a jury’s impartiality if not in-

quired into on voir dire.

2. The extent and form of a required line of questioning

shall be within the trial court’s discretion; provided, however,

that sufficient followup questioning shall be allowed in order to

penetrate the prospective juror’s initial subjective self-evalua-

tions and that, where possible, questions shall be phrased to

seek specific, objective data from which jurors’ attitudes may be

inferred.

3. Any line of questioning deemed necessary under the pre-

ceding two guidelines defining content and extent of voir dire

may be asked of the prospective jurors en masse, provided that

each juror is required to respond individually. Additional lines

of questioning not required by these rules but permitted by the

court may be answered en masse by volunteered response or in-

dividually.

Whenever a question solicits information capable of prejudic-

ing other jurors, the court shall require that answers be given

by the jurors individually out of the hearing of the rest of the

panel. Similar precautions shall be taken whenever responses

are likely to be embarrassing to the juror replying.

Spears, Voir Dire: Establishing Minimum Standards to

Facilitate the Exercise of Peremptory Challenges, 27

Stan. L. Rev. 1493, 1515-1526 (1975).