Petition for Writ of Certiorari — King v. United States (No. 86-739)

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| NOV 5 1986

No. - : YOSEPH F. SPANIOL, JR.

aS ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

MAURICE DAVID KING,

Petitioner,

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

W. GARY KOHLMAN

KOHLMAN AND FITCH

504 Seventh Street, S.E.

Washington, D.C. 20003

(202) 546-1500

(regu Ge enc REA RATERS AC NR ES YE TNT TITIES 5 STEIN

ABS Duplicators - 912 Seventeenth Street, N.W. Washington, D.C. 20036 - 298-5537

QUESTIONS PRESENTED

Whether the use of a conspiracy conviction under Title

21 U.S.C. Section 846 as one of the three offenses neces-

sary to establish a series of offenses in the same case under

Title 21 U.S.C. Section 848, violates the double jeopardy

clause of the Fifth Amendment to the United States Con-

stitution.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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SEUNG 5.5 csics i sasincscgpeeee meee ee 3

REASONS FOR GRANTING THE PETITION ..........---.-- 4

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TABLE OF AUTHORITIES

Cases: Page

Brown vy. Ohio,

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Garrett v. United States,

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Jeffers v. United States,

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United States v. Jefferson,

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United States v. Lurz,

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United States v. Ricks,

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United States v. Ricks,

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Whalen v. United States,

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Constitutional Provisions and Statutes:

Amendment V of the Constitution of the United States

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. -

MAURICE DAVID KING,

Petitioner,

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioner Maurice David King petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The en banc opinion of the United States Court of Ap-

peals for the Fourth Circuit (App., infra, 1b-19b), has not

yet been reported. The panel’s opinion (App., infra,

la-30a) is reported sub nom. United States v. Ricks, et al.,

776 F.2d 455 (4th Cir. 1985).

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on October 2, 1986. The jurisdiction

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment V to the Constitution of the United States

provides in pertinent part:

No person shall . . . be subject for the same of-

fense to be put twice in jeopardy of life or limb. . .

Title 21, Section 846 provides:

Any person who attempts or conspires to commit

any offense defined in this subchapter [Control

and Enforcement] is punishable by imprison-

ment or fine or both which may not exceed the

maximum punishment prescribed for the of-

fense, the commission of which was the object of

the attempt or conspiracy.

Title 21, U.S.C. Section 848 provides in pertinent part:

(b) For purposes of subsection (a) of this sec-

tion, a person is engaged in a continuing criminal

enterprise if —

(1) he violates any provision of this sub-

chapter or subchapter II of this chapter the

punishment for which is a felony, and

(2) such violation is a part of a continuing

series of violations of this subchapter or sub-

chapter II of this chapter —

(A) which are undertaken by such person in

concert with five or more other persons with

respect to whom such person occupies a position

of organizer, a supervisory position, or any other

position of management, and

(B) from which such person obtains substan-

tial income or resources.

STATEMENT

1. Petitioner and twelve others were indicated by a

Federal Grand Jury in a multi-count indictment. Included

in those charges against petitioner King was one count of

conducting a criminal enterprise under Title 21 U.S.C.

Section 848.

2. Petitioner’s (and seven co-defendants’) trial by jury

in the United States District Court for the District of

Maryland commenced on December 6, 1982 and contin-

ued through January 5, 1983. The jury convicted peti-

tioner King, inter alia, of two counts of conspiracy to

posssess and distribute narcotics (21 U.S.C. Section 846),

two counts of distribution of narcotics (21 U.S.C. Section

841) and one count of conducting a criminal enterprise (21

U.S.C. Section 848).

3. On appeal to the Fourth Circuit, a panel reversed the

eight appellants’ convictions because of errors in the jury

selection process.

With respect to the Section 846 contention, the panel

held that appellant King had not preserved the issue. It

noted, however, that language in United States v. Lurz,

666 F.2d 69 (4th Cir. 1981), supported appellant’s argu-

ment but that this Court’s decision in Garrett v. United

States, U.S. ___, 105 S.Ct. 2407 (1985), overruled

sub silentio both Jeffers v. United States, 432 U.S. 137

(1976), and Lurz, supra.

5. The en banc Court of Appeals held that King had

preserved the issue and proceeded, in effect to overule

Lurz.

REASONS FOR GRANTING THE PETITION

1. Interpretation of Title 21 U.S.C., Section 846 raises

an important and recurring issue in the administration of

the federal criminal law which has divided the Circuit

Courts of Appeal. Under that section a continuing crimi-

nal enterprise consists of five elements:

(1) A felony violation of the federal narcotic

laws;

(2) As a part of a continuing series of viola-

tions;

(3) In concert with five or more persons;

(4) For whom the defendant is the organizer

or supervisor; and

(5) From which he derives substantial income

or resources.

United States v. Lurz, 666 F.2d 69 (4th Cir. 1981). The se

cond element — the continuing series of violations — must

be established by proof of at least three violations of the

provisions found in 21 U.S.C. Sections 801-966. Garrett v.

United States, U.S. ___, 105 S.Ct. 2407 (1985);

United States v. Ricks, 776 F.2d 455, 463 (4th Cir. 1985).

To prove the alleged series of violations by appellant

King, the government relied upon two convictions under

21 U.S.C, Section 841 and upon a conviction under 21

U.S.C. Section 846 — a conviction for conspiring to dis-

tribute narcotics. Under the circumstances of this case, the

Section 846 conspiracy was factually a lesser included of-

fense of the CCE charge. Consequently, the Section 846

conviction could not constitute a predicate offense of the

asserted criminal enterprise because Congress did not in-

tend that the lesser included offense or conspiracy be itself

a part of the proof for the greater offense of CCE.

The issue before this Court, therefore, is whether, con-

sistent with both Congressional intent and the Double Jeo-

pardy clause, a conspiracy proven under Section 846 can

serve simultaneously as three separate elements of CCE:

proof of a felony violation of the federal narcotics laws

(Element 1); one of the three predicate offenses (Element

2) and acting in concert with five or more persons (Ele-

ment 3). For that is precisely what happened in this case.

Appellant was charged in a Section 846 conspiracy charge

that factually overlapped the CCE charge. The jury was

instructed that if it convicted appellant of the Section 846

charge, it could use that conviction when it considered the

CCE charge both as proof of a felony violation of the fed-

eral narcotics laws (Element 1) and as one of the three

predicate offense (Element 2). And, of course, the same

evidence used by the jury to convict appellant of Section

846 conspiracy charge was relied upon by the government

in satisfying the third element of CCE, that appellant

acted “in concert with five or more persons.”

2. The starting point to answering this question is deter-

mining Congress’ intent in enacting the two statutes. See,

e.g., Whalen v. United States, 445 U.S. 684 (1979). It is

clear, first of all, that Congress — in the view of this Court

— intended that Section 846 be a lesser included offense of

CCE. In Jefffers v. United States, 432 U.S. 1378 (1976),

the Court analyzed both the legislative intent behind, and

the statutory language of CCE. The Court focused on the

term “concerted activity,” and whether Congress, by using

that term intended to require a conspiracy or agreement

among the persons involved in the continuing criminal

enterprise. If that was the case, a conspiracy charged un-

der Section 846 would be a lesser included offense of CCE.

Examining both the statutory language and the legislative

history of CCE, the Court found that Section 848(b)(2)(A)

——e

restricts the definition of the crime to a contin-

uing series of violations undertaken by the accus-

ed “in concert with five or more persons.” Clear-

ly, then, a conviction would be impossible unless

concerted activity were present. The express “in

concert” language in the statutory definition

quite plausibly may be read to provide the neces-

sary element of “agreement” . . . It would be

unreasonable to assume that Congress did not

mean anything at all when it inserted these crit-

ical words in Section 848. In the absence of any

indication from the legislative history or else-

where to the contrary, the far more likely expla-

nation is that Congress intended the word “con-

cert” to have this common meaning of agreement

in a design or plan.

Id., at 148-49. The Court also found support of its inter-

pretation of “in concert” in the Section-by-Section analysis

of the Senate version of the bill and in the Congressional

debates on the bill.

This Court in Jeffers held that Congress did not intend

to allow for cumulative punishment in situations where a

defendant was convicted of both Setion 846 and CCE vio-

lations. The “critical inquiry” the Court engaged in again

was determining Congressional intent — whether Con-

gress intended to punish each statutory violation sepa-

rately. Recognizing the possibility that the two statutory

offense — Section 846 and CCE — are “the same offense

for double jeopardy purposes” the Court “examin[ed] the

problem closely, in order to avoid constitutional multiple

punishment difficulties.” /d., at 155. It found that Con-

gress did not intend to provide for multiple punishment

for Section 846 and CCE.

Jeffers, we submit, is illuminative of the relevant Con-

gressional intent behind these two statutes and determina-

tive of the issue here. In Jeffers, on the basis of its assess-

ment of Congressional intent, the Court assumed, without

deciding, that

Section 848 does require proof of an agreement

among the persons involved in the continuing cri-

minal enterprise. So construed Section 846 is a

lesser included offense of Section 848 because

Section 848 requires proof of every fact neces-

sary to show a violation under Section 846 as well

as proof of several additional elements.

Id., at 151 (Opinion of Blackmun, J.). See also, United

States v. Jefferson, 714 F.2d 689 (7th Cir. 198?’ (“[W]e

conclude that Section 846 was intended by Congress to be

a lesser included offense of Section 848.”) The Congres-

sional intent the Court relied upon in Jeffers also indicates

that Congress did not intend that a Section 846 conspiracy

be used as one of the three violations to establish the re-

quisite series under Sectdion 848.

The importance of whether the asserted predicate of-

fense is a lesser included offense of a CCE violation was

recognized and succinctly addressed by the Fourth Circuit

in United States v. Lurz, supra. In Lurz, the Court con-

cluded that a CCE charge cannot be based on the same

conspiracy charged in an underlying (lesser included) con-

spiracy charged under Section 846:

One may not first prove a conspiracy to dis-

tribute to establish a Section 846 violation and

then move on to convict under Section 848 as

well, by using the very same conspiracy to dis-

tribute for the felony violation of the federal nar-

cotic scheme (item one in the five point scheme).

3. There is a compelling reason for concluding that

Congress could not have intended the lesser included of-

an

fense of conspiracy (Section 846) to be the first element of

a CCE allegation and also one of the three necessary pre-

dicate offense of CCE. Abundant evidence establishes that

Congress intended CCE to be a vehicle to get the major

traffickers of drugs, the ones who were so successful that

their concerted actions had led to at least three substantive

violations of the narcotics laws. See, e.g., 116 Cong. Rec.

at 33630 (comments of Rep. Poff); see also, Garrett,

supra, ____ U.S. at ___, 105 S.Ct. at 2415. One element |

that Congress placed in CCE, therefore, is a requirement

of “concerted behavior.” As the Jeffers Court held, that

element “necessarily includes” proof of a conspiracy. The

second major requirement of CCE is the commission of “a

series,” construed by the judiciary as at least three, nar-

cotics violations. See e.g., Garrett v. United States, supra.

To be eligible for the very stringent penalties of CCE, in

other words, a narcotics violator must be sufficiently big

— the “top brass” in the drug rings, not the lieutenant and

foot soldiers” — (Garrett, supra, ___. U.S. at , 105

S.Ct. at 2413) that he not only conspires with five or more

people, but, as a result, three or more substantive narco-

tics violations result. If, however, proof of a Section 846

conviction could itself be one of the three predicate of-

fenses, then it would effectively rewrite the statute to re-

quire only two predicate offenses, not three. Cf. 116

Cong. Kec. 33631 (comments of Rep. Eckhardt) (“Under

[21 U.S.C. Section 848] if you are going to prove a man

guilty, you have to come in and prove every element of the

continuing criminal offense.”) Congress, in other words,

being primarily a “body of lawyers,” Garrett v. United

States, supra, 105 S.Ct. at 2419, quoting from A/bernaz v.

United States, 450 U.S. 333, 344 (1981), must be presumed

to have realized that every CCE case would entail proof of

a Section 846 conspiracy. It is only logical to presume that

Congress, when it added the requirement of three predi-

cate offenses, did not intend that the lesser included of-

fense of conspiracy also be considered one of the predicate

offenses.

4. The panel opinion recognized the force of appellant’s

arguments, and the support it had from Jeffers but sug-

gested that appellant’s argument was threatened by this

Court’s recent decision in Garrett v. United States, supra.

Garrett, however, properly read, is entirely consistent with

Jeffers and Lurz. The panel suggested that Garrett over-

ruled Jeffers (and Lurz) sub silentio:

The Garrett Court did not focus on the identity

of the necessary predicate offenses, but Garrett

was convicted of only two substantive and two

conspiracy counts, so affirmance indicates that

conspiracy violations may constitute a necessary

part of the required series.

United States v. Ricks, supra, 776 F.2d at 464 n. 16 (cita-

tions omitted). The en banc Court apparently agreed with

the panel’s reasoning and in effect overruled Lurz.

The panel, however, misread the Garrett opinion, for in

fact Garrett’s CCE conviction was-not predicated upon

any conspiracy convictions.

To begin with, Justice Rehnquist is careful throughout

his opinion for the Court in Garrett to emphasize that the

only issue in Garrett was the relationship of “substantive”

offenses to the CCE conviction. /d., 105 S.Ct. at 2410,

2420. And this care was necessary because in the district

court the jury was presented only with substantive offen-

ses as alleged predicates for the CCE charge:

As to the predicate violations making up the

“series,” the court instructed the jury that in ad-

dition to the offenses charged as substantive

10

counts in the Florida indictment, the felony of-

fenses of possession of marijuana with intent to

distribute it, distribution of marijuana, and im-

portation of marijuana[ ] would qualify as pre-

dicate offenses. '

Id., 105 S.Ct. at 2410 (emphasis supplied).

The actual structure of the charge in the district court in

Garrett can be fully understood only by reading Justice

Stevens dissenting opinion. For there it is revealed that the

CCE count in Garrett relied for predicate offenses only

upon three substantive violations which were not charged

elsewhere in the indictment:

Notably, although each of the three principal

transactions would obviously have supported a

substantive charge of importation in violation of

Section 21 U.S.C. Section 812 and Section 952,

no such charge was made against petitioner.

Instead, Count IX charged that he had engaged

in a continuing criminal enterprise (CCE) in

violation of 21 U.S.C. Section 848 “from in or

about the month of January, 1976, and continu-

ing thereafter up to and including the date of the

filing of this indictment.”

* * *

[The indictment] did not separately charge any of

the three earlier importations as substantive

violations. Evidence of those felonies were of-

fered to establish the greater CCE offense rather

than separate, lesser offenses.

Id., 105 S.Ct. at 2423, 2425 (footnote omitted).

‘All of these of course are substantive, non-conspiracy offenses.

11

5. Thus, the rule that the Fourth Circuit recognized in

Lurz, supra, — that “[o]ne may not first prove a con-

spiracy to establish a Section 846 violation and then move

on to convict under Section 848 as well, by using the same

conspiracy,” United States v. Lurz, supra, 666 F.2d at 76

— is not in any way affected by, and remains completely

valid after, the decision in Garrett.

Indeed, the reasoning in Garrett underscores the ac-

curacy of the Lurz analysis. Garrett’s CCE conviction was

predicated, inter alia, upon a prior importation of nar-

cotics. United States v. Garrett, supra, 105 S.Ct. at 22410,

2415-16, 4224, 2425. Garrett contended that the importa-

tion conviction could not serve as the predicate offense for

the CCE. The Court disagreed and distinguished Brown v.

Ohio, 432 U.S. 161 (1977). In Brown, the Court pointed

out, the defendant “had engaged in a single course of con-

duct. .. . Every moment of his conduct was as relevant to

the joyriding charge as to the auto theft charge.” United

States v. Garrett, supra, 105 S.Ct. at 2416 (emphasis sup-

plied). In Garrett, on the other hand, the continuing cri-

minal enterprise — which covered five years — was wholly

separate from the importation conviction — which per-

tained to one day. Consequently, conviction both of

importation and CCE did not subject Garrett to double

jeopardy.

In this case, however — unlike Lurz and Garrett and

like Jeffers — the Section 846 offense was the same of-

fense alleged in the CCE count. Because these two offen-

ses involve a “single course of conduct,” United States v.

Garrett, supra, 106 S.Ct. at 2416, the Section 846 offense

was only a lesser included offense of the CCE charge and

therefore could not constitute a predicate offense of the

alleged enterprise.

12

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

W. GARY KOHLMAN

KOHLMAN AND FITCH

504 Seventh Street, S.E.

Washington, D.C. 20003

(202) 546-1500

October 1986

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was mailed,

postage pre-paid, to James Barr Morehead, Assistant

United States Attorney for the Districtof Maryland, 101

Lombard Street, Baltimore, Maryland 21201, and to

counsel for Appellants, and to the Office of the Solicitor

General, United States Department of Justice, Constitu-

tion Avenue and 10th Street, N.W., Washington, D.C.

20530, on this _____—s day of October, 1986.

W. Gary Kohlman

A-|l

APPENDIX A

UNITED STATES of America, Appellee,

Vv.

Thomas Calvin RICKS, et ai.,

Nos. 83-S060(L), 83-5061 through

83-5066 and 83-5081.

United States Court of Appeals,

Fourth Circuit.

Argued May 6, 1985.

Decided Oct. 10, 1985.

Defendants were convicted in the United States District

Court for the District of Columbia, Maryland, Alexander

Harvey, Il, J., of engaging in conspiracy to possess and

distribute heroin and cocaine, and two defendants were

convicted of other related offenses, of conducting con-

tinual criminal enterpise, and a violation of Travel Act,

and they appealed. The Court of Appeals, Harrison L.

Winter, Chief Judge, held that: (1) right of defendants to

peremptory strikes of prospective jurors was impaired ne-

cessitating reversal; (2) evidence was legally sufficient to

convict defendants; and (3) defendants were not entitled to

severance.

Reversed and remanded.

Wilkinson, Circuit Judge, filed a dissenting opinion.

Ransom J. Davis, Stuart R. Blatt, Baltimore, Md., W.

Gary Kohlman, Washington, D.C., Charles Lee Nutt,

William H. Murphy, Baltimore, Md. (H. Russell Smouse,

Harry J. Matz, Melnicove, Kaufman, Weiner & Smouse

A-2

P.A., Baltimore, Md.; Kenneth Michael Robinson, Wash-

ington, D.C., Edwrd Smith, Jr., Cummings & Smith,

P.A., Jack Rubin, Baltimore, Md., on brief), for ap-

pellants.

J. Frederick Motz, U.S. Atty., Baltimore, Md., for ap-

pellee.

Before WINTER, Chief Judge, WILKINSON, Circuit

Judge, and TURK, Chief District Judge, United States

District Court for the Western District of Virginia, sitting

by designation.

HARRISON L. WINTER, Chief Judge:

Eight defendants convicted by a jury of a variety of nar-

cotic offenses appeal assigning diverse reasons why the

judgments of their convictions should be set aside. We

perceive as a basic error in their trials the effective denial

of their statutory right to peremptory challenges in the

selection of the jury. This error is sufficient to require

reversals and a new trial. We decide the case solely on this

ground, although we comment on defendants’ other

contentions which relate to issues that are bound to arise

on retrial.

I.

Defendants Ricks, Carter, Moffat, Rogers, Lindsey,

Frisby, Roberts and King were all convicted of engaging in

a conspiracy to possess and distribute heroin and cocaine

in violation of 21 U.S.C. § 846. King and Ricks, two of the

leaders of the conspriacy, were also convicted of other re-

lated substantive offenses, of conducting a continuing

criminal enterprise in violation of 21 U.S.C. § 848, and of

A-3

violation of the Travel Act, 18 U.S.C. § 1952.' The case,

which took five weeks to try, arose from the operation of a

major drug distribution organization in Baltimore City.

Defendants King, Ricks and Meredith were the heads of

the organization; defendant Carter the financial advisor;

defendants Moffatt, Lindsey and Hurt were lieutenants of

certain inner city street corners where drugs were sold;

defendant Frisby was a sublieutenant and distributor, de-

fendant Rogers was a courier of drugs and money; and

defendant Roberts was the girlfriend of Ricks who allowed

her apartment to be used for illegal purposes and who

otherwise assisted in the operation.

Our statement of facts is limited by the basis on which

we decide the case and further limited to the recurrent is-

sues that we think warrant comment.

II.

When the trial of the nine defendants began, they, of

course, together with the government, had a statutory

right to peremptory challenges in the jury selection pro-

cess. Since the offenses charged were punishable by impri-

sonment for more than one year, Fed.R.Crim.P. 24(b)

provided the government was entitled to six peremptory

challenges and the defendants jointly to no less than ten

peremptory challenges. The rule provides that where

“there is more than one defendant, the court may allow the

defendants additional peremptory challenges and permit

‘Originally thirteen defendants, including the eight appealing defen-

dants, were indicted jointly. Three defendants (Hines, Williams and

West) pled guilty; one (Meredith) is a fugitive; and defendant Hurt

dismissed his appeal after his sentence was modified. Defendant

Carter was acquitted of a substantive charge at trial. Defendants Mof-

fat, Lindsey and Frisby were convicted of substantive offenses in addi-

tion to the § 846 conspiracy.

A-4

them to be exercised separately or jointly.” The rule also

provides that defendants and the government are entitled

to additional peremptory strikes if alternate jurors are

used — one challenge for up to two alternate jurors and

two challenges for up to four alternate jurors.

Fed.R.Crim.P. 24(c).

The district court granted defendants jointly twelve

peremptory challenges for the main jury,? with six for the

government. The district court concluded to use four alter-

nate jurors, and it granted defendants jointly and the gov-

ernment each two peremptory challenges exercisable against

the alternates. ?

Seventy-five veniremen reported for jury duty on the

day that defendants’ trial began. The seventy-five were

ultimately divided into two groups — a group of sixty-six

from which active jurors in this case were to be chosen and

a group of nine from which alternate jurors were to be

chosen. The record suggests that such a large number was

brought in because one or more other district judges

would select juries from the pool once the jury in defen-

dants’ case had been selected.‘

2Defendants during the trial and in their brief before us exhibit con-

fusion as to how many strikes from the active jury they were given. In

several instances, they claim that they were given thirteen strikes but

only exercised twelve. The transcript reflects that they were given only

twelve. That is the figure used by the government in its brief.

The difference between twelve and thirteen is not significant in this

case because the fact is that defendants exercised none of their strikes

in the portion of the list of veniremen from which the jury was

selected.

>The district court explained the mechanics of exercising the

peremptory challenges of alternative jurors by stating “we'll take the

last eight names on the list for our alternates and the defendants joint-

ly will take two strikes against that and the government will take two,

and that will leave four alternates.”

‘If defendants’ jury were the only jury to be selected, fewer

veniremen would have been required, viz

A-5

Before voir dire began, an Assistant United States At-

torney inquired of the court about the portion of the list

that the court contemplated using in drawing a jry. The in-

quiry was apparently generated by the unusually large list

of veniremen. The actual inquiry and the court’s response

follow:

MR. ULWICK: Your Honor, may I assume that we’ll

be — or the Court will be picking from the top of the list?

THE COURT: Well, of course, I can’t tell at this point,

as far as strikes and so forth, but ordinarily I start from

the top, not any rigid number, counting from the top, so I

think it would be reasonably fair to say, if you want to ex-

4 (continued)

12 - main jury

4 - alternate jurors

12 - defendants’ peremptory challenges

6 - government’s peremptory challenges

4 - total peremptory challenges to alternate jurors

38

Some additional veniremen would have been required to allow for

challenges for cause, but after the ten such challenges in this case,

there were still twenty-seven extra veniremen. Thus the actual venire

was over 50% larger than necessary. Our decision in this case does not

rest on the total size of the venire, but on the absence of effective

notice of how actual jurors would be chosen. We note, however, that

an excessively large venire could have the same effect that we condemn

in this case, even if the procedure were clearly explained. The usual

practice with a struck jury system, which we encourage, is for the list

to contain only the approximate number of necessary potential jurors.

See, e.g., United States v. Blouin, 666 F.2d 796,796-97 (2 Cir.1981);

United States v. Morris, 623 F.2d 145, 151-52 (10 Cir.), cert. denied,

449 U.S. 1065, 101 S.Ct. 793, 66 L.Ed.2d 609 (1980). A much larger

pool may be necessary to begin with, but after enough veniremen have

passed voir dire without successful challenge for cause, there is no

reason why the list may not be pared down to the necessary size, which

in this case would have been thirty-eight.

A-6

ercise your strikes mostly at the top, and if you’re satisfied

with the top, don’t strike there. °

In the course of voir dire, nine veniremen on the active

list and one venireman on the alternate list were excused

for cause, leaving fifty-seven on the list from which active

jurors would be selected and eight to the alternate list.

Copies of the list of fifty-seven and eight, respectively,

were furnished counsel so that they could mark their pe-

remptory strikes.

Defendants exercised their peremptory challenges all

within the first twenty-seven veniremen who had not been

excused for cause. The government exercised three of its

peremptory challenges within the first twenty-nine venire-

men who had not been excused for cause; one within the

next thirteen from which the jury was chosen; and two

within the remaining jurors who were not used. The dis-

trict court, having been furnished a list of the entire venire

with absences, excuses for cause, and peremptory strikes

shown thereon, selected as foreman the fifteenth on the

list of veniremen present who had neither been stricken

nor excused for cause. The foreman appeared on the list

below defendants’ exercise of their strikes, and the remain-

ing regular jurors were drawn form the list below the

placement of the foreman. Thus, of the fifty-seven eligible

veniremen, the jury actually picked came from numbers

thirty through forty-two.

‘The punctuation of a transcript is ordinarly a matter left to the

discretion and usage of the court reporter. It occurs to us that the

thought that the district court would select jurors from the top of the

list would be more positively conveyed by the written record were an

additional comma inserted in the latter part of the court’s statement:

so I think it would be reasonably fair to say, if you want,

to exercise your strikes mostly at the top, and if you’re

satisfied with the top, don’t strike there.

A-7

As soon as the jury was seated and before it was sworn,

defendants realized that they hd concenirated the use of

their peremptory strikes in an area of the list ahead of the

portion from which the active jurors were chosen. They

immediately objected, asserting “[w]e relied on the Court’s

statement that it was going to start from the top of the list.

We feel as though we have been led astray.” The response

of the court was that “I didn’t say I was going to strike

starting from the top, if that’s the question. I said not

necessarily.”

There ensued an extended dialgoue between the court

and counsel — counsel for defendants steadfastly main-

taining that they had concentrated their strikes in the por-

tion of the list from which they thought the jury would be

chosen based upon their understanding that the jury

would be selected from the top. Counsel identified at

least two jurors seated in the box as ones they would have

stricken had they thought that these veniremen would have

been eligible to be chosen.’ The court required the reporter

to read back the court’s original statement about how the

jury would be drawn, and then the court explained its

comments as follows:

So what I said was, exercise most of them from

the top, but it wasn’t any rigid formula. If it had

been a rigid formula, I would have given you 30

and we’d put them in the box and we'd say strike

each particular one here and we’ve ended up, I

As counsel succinctly sated “[r]ather than strike the worst 12 as we

saw them, we struck the worst 12 in the order from the first number.”

7One of the two was the foreman selected by the court. Counsel

said: “We decided not to strike him because we felt that coming

[counting?] from the first, from the top of the list, he would not be

possibly called, even if the Government took six strikes and we took

twelve, we wouldn’t get to this gentlemen that is now the foreman.”

A-8

think, with 64 on the list, and there’s no telling

where the strikes would be.

The government, in this colloquy, pointed out that it

had understood the court correctly and it had spread its

strikes throughout the entire list, even though it used half

of them at the top. Counsel for defendants rejoined that it

was bound to be something more than coincidence that

nine defense attorneys understood that they should limit

their strikes to the portion of the list counting form the top

from which it was mathematically like that the active

jurors were to be chosen. The district court formally over-

ruled the objection to the array, delivering the short oral

opinion set forth below.* The veniremen seated in the box

and the alternates were sworn as jurors, and the veniremen

remaining in the courtroom were returned to the jury as-

sembly room.

Iil.

Much of the argument before us is centered on the asser-

tion and counter-assertion that the district court did or did

*Well, the objection will be overruled as we'll swear the jury, and

you have an exception, of course, to that ruling.

It seems to me the Government followed my instruc-

tions. If counsel misunderstood them, I think that is unfor-

tunate. I don’t think that you can say the strikes were not

effective because it could have been that I would have pick-

ed one of these people that you struck as the foreman. |

don’t know anything about any of these people. I don’t

think counsel does either, but at this point, to say, “We

don’t like the composition of the jury and therefore we

ought to pick another jury because we think those people

are going to be one way or the other,” I don’t think is the

proper way to do it and I think that the Government pro-

perly followed my instructions. Defense counsel didn’t. So

your exceptions will be noted and we're going to swear the

jury.

A-9

not positively tell counsel that it would select active jurors

from the top of the list. We do not find it necessary to

resolve this factual question. Certainly we do not think

that the district court purposely misled defendants’ coun-

sel; defendants’ counsel does not even suggest this argu-

ment. Similarly, we have no basis in the record to question

the bona fides of defendants’ counsel. After examining the

language used, we do not think that, based upon what the

district court said, it was unreasonable for defendants’

counsel to interpret the court’s remarks to mean that the

jury would be selected largely or substantially from the top

of the list. Further, we think that it was not unreasonable

for defense counsel to have enough certainty in their inter-

pretation of the court’s remarks to negate any duty on

their part to make a further inquiry or to request clarifica-

tion.,

The practical effect of defendants’ counsels’ not

unreasonable belief that the jury would be chosen largely

or substantially from the top of the list was to frustrate the

exercise of their peremptory strikes. In effect, their strikes

were worthless because they were all exercised with respect

to veniremen who were not considered for selection as ju-

rors.

{1,2] The right to peremptory strikes is not a constitu-

tional one. It was formerly a right created by statute alone,

and it is presently a right created by rule of court with

legislative sanction. But it is a right of such significance

that denial or substantial impairment of the right consti-

tutes per se reversible error. As authority for the latter

statement, we need look only to Swain v. Alabama, 380

U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and the au-

thorities on which it relied. Swain was a case in which a

black defendant convicted by an all-white jury sought a

reversal of his conviction on the ground that he had been

A-10

denied equal protection of the laws by racially discri-

minatory jury selection procedures, including discrimi-

nation in the use of the peremptory strike system. The ac-

cused did not prevail in his arguments, but in the opinion

of the Court dealing with the use and function of peremp-

tory strikes, we find stated the principles which govern the

decision in our case. It is necessary that we quote at some

length:

In contrast to the course in England, where

both peremptory challenge and challenge for

cause have fallen into disuse, peremptories were

and are freely used and relied upon in this coun-

try, perhaps because juries here are drawn from a

greater cross-section of a heterogeneous sociey.

The voir dire in American trials tend to be exten-

sive and probing, operating as a predicate for the

exercise of peremptories, and the process of se-

lecting a jury protracted. The persistence of

peremptories and their extensive use demonstrate

the long and widely held belief that peremptory

challenge is a necessary part of trial by jury. See

Lewis v. United States, 146 U.S. 370, 376, 36

L.Ed. 1011, 1014, 13 S.Ct. 136 [138]. Although

“[t]here is nothing in the Constitution of the

United States which requires the Congress [or the

States] grant peremptory challenges,” Sti/son v.

United States, 250 U.S. 583, 586, 63 L.Ed. 1154,

1156, 40 S.Ct. 28 [30], nonetheless the challenge

is “one of the most important of the rights se-

cured to the accused,” Pointer v. United States,

151 U.S. 396, 408, 38 L.Ed. 208, 214, 14 S.Ct.

410 [414]. The denial or impairment of the right

is reversible error wihtout a showing of preju-

dice, Lewis v. United States, 146 U.S. 370, 36

L.Ed. 1011, 13 S.Ct. 136; Harrison v. United

States, 163 U.S. 140, 41 L.Ed. 104, 16 S.Ct 961;

A-11

cf. Gulf, Colorado & Santa Fe R. Co. v. Shane,

157 U.S. 348, 39 L.Ed. 727, 15 S.Ct. 641. “For it

is, aS Blackstone says, an arbitrary and capri-

cious right; and it must be exercised with full

freedom, or it fails of its full purpose.” Lewis v.

United States, 146 U.S. 370, 378, 36 L.Ed. 1011,

1014, 13 S.Ct. 136 [139].

380 U.S. at 218-19, 85 S.Ct. at 835 (footnotes omitted;

emphasis added).

[3] Since we read Swain and Pointer v. United

States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208

(1894), to say that the denial or impairment of the right to

peremptory strikes is reversible error per se, and since we

concluded that defendants’ right in this case was effective-

ly, albeit inadvertently, denied, we must reverse the con-

victions and grant a new trial.°

*While we find no precedent precisely in point, we think that our

holding is in accord with general propositions reflected in the weight

of authority. See United States v. Turner, 558 F.2d 535 (9 Cir.1977)

(“[a]mbiguous exchanges that led to misunderstandings between the

court and counsel about the district court’s own ground rules” became

automatic reversible error when defendant was not given adequate

notice of the system to be used and his use of peremptories was

restricted); United States v. Sams, 470 F.2d 751 (5 Cir.1972) (defense

counsel was “predictably misled” by a question from the clerk and sur-

prised when accurately informed of the system being used; serious

limit on full, unrestricted exercise of peremptories constituted plain

and reversible error); United States v. Rucker, 557 F.2d 1046 (4

Cir.1977) (defendant must have meaningful opportunity to exercise

peremptory challenges; district court’s erroneous refusal to excuse a

juror for cause constitutes reversible error because the number of

peremptory challenges available to the defense was effectively reduced

when defendant was forced to use a peremptory to strike that juror);

United States v. Allsup, 566 F.2d 68, 71 (9 Cir.1977) (same as

Rucker); United States v. Nell, 526 F.2d 1223, 1229 (5 Cir. 1976) (“[A]s

a general rule it is error for a court to force a party to exhaust his

peremptory challenges on persons who should be excused for cause,

A-12

i}:

Defendants Ricks and King were charged and convicted

jointly of interstate travel in aid of racketeering (18 U.S.C.

§ 1952), conspiracy to possess and distribute narcotics (21

U.S.C. § 846), and conducting a continuing criminal en-

terprise (21 U.S.C. § 848). King was also charged and con-

victed of two substantive distribution offenses in violation

of 21 U.S.C. § 841 and 18 U.S.C. § 2, and Ricks was in-

dicted and convicted of three separate distribution of-

fenses in violation of those same statutes. They'® challenge

their continuing criminal enterprise (CCE) convictions

9(continued)

for this has the effect of abridging the right to exercise peremptory

challenges.”); Spencer v. State, 20 Md.App. 201, 314 A.2d 727 (1974)

(denial of due process for clerk, after defense had exercised all

peremptories, suddenly to skip down the list of prospective jurors

rather than to continue to proceed in order from the top); cf. Hines v.

Enomoto, 658 F.2d667 (9 Cir.1981) (misleading statement by clerk

that effectively denied half of peremptories allowed by state law could

form the basis for federal habeas relief); Carr v. Watts, 597 F.2d 830

(2 Cir.1979)(in a civil case, forced waiver of one peremptory was a

direct impairment of a statutory right and thus automatic reversible

error).

While we decide this case on the basis of what counsel may

reasonably (measured by an objective, and not a subjective, standard)

have understood the district court to mean, we are not unmindful that

some of these authorities, particularly United States v. Turner, supra,

hold or strongly suggest that, absent a local rule of court or establish-

ed local practice about how a jury will be selected and how peremp-

tory strikes should be exercised with respect to a large venire, there is a

duty on the part of the court to give clear, unambiguous instructions

to counsel about the procedure to be followed and that a failure on the

part of the court in this respect is plain error. This line of authority

would be fully applicable here because there is little doubt that there

was ambiguity in what the court said. Under this line of authority, an

objection by counsel is unnecessary to preserve the issue for appeal.

‘©The argument is advanced soley by Ricks, but since the issue is

likely to recur on retrial, we address it as it applies to both Ricks and

King.

A-13

under 21 U.S.C. § 848 because they believe the jury was er-

roneously instructed that the lesser included § 846 con-

spiracy could serve as a predicate offense for the CCE

charge.

Some of defendants’ cumulative convictions and sen-

tences were clearly improper at the time they were impos-

ed, because our cases had established, in harmony with

numerous cases from other circuits, that §§ 846 and 841

specified lesser included offenses under § 848, and that

separate convictions and punishments could not be impos-

ed for the greater and lesser offenses. See United States v.

Leifried, 730 F.2d 388 (4 Cir.1984); United States v.

Raimondo, 721 F.2d 476 (4 Cir.1983), cert. denied, ___

U.S. , 105 S.Ct. 133, 83 L.Ed.2d 74 (1984); United

States v. Lurz, 666 F.2d 69, 75 (4 Cir.1981), cert. denied,

459 U.S. 843, 103 S.Ct. 95; 74 L.Ed.2d 87 (1982); United

States v. Webster, 639 F.2d 174, 182 (4 Cir.981). These

conclusions may remain true with respect to cumulative

sentencing for §§ 846 and 848,'' but the Supreme Court’s

recent opinion in Garrett v. United States, ____ U.S. ___,

105 S.Ct. 2407, 85 L.Ed. 2d .764 (1985), holds that sepa-

rate prosecutions and punishments are permissible for §

848 and the underlying substantive predicate offenses.

Although that case did not involve a § 841 conviction, we

''See Jeffers v. United States, 432 U.S. 137, 149-50, 157, 97 S.Ct.

2207, 2215-16, 2219, 53 L.Ed.2d 168 (1977) (four-Justice plurality)

(“For the purposes of this case, therefore, we assume, arguendo, that

. . . § 846 is a lesser included offense of § 848”; “Congress did not in-

tend to impose cumulative penalties under §§ 846 and 848.”); id. at

159, 97 S.Ct. at 2220 (four-Justice concurrence in vacation of

cumulative fines). Garrett distinguished Jeffers without purporting to

affect its result, _.. U.S. at___, 105 S.Ct. at 2419, although its af-

firmance of cumulative sentences and fines for the conspiracy and

CCE counts is directly contrary to Jeffers.

A-14

think that its holding applies to that section as well.'? In

any event, because we vacate defendants’ convictions on

other grounds and we assume that all charges against each

defendant will be retried together, we have no occasion to

explore the full ramifications of Garrett as it relates to

Ricks’ and King’s sentences.

[4-7] We must decide, however, whether the govern-

ment sufficiently proved all the elements of the CCE

charges against King and Ricks; if not, they are entitled to

acquittal rather than merely a retrial on those charges. We

think that the evidence was more than adequate to prove

all of the elements of a § 848 violation that were charged,

see generally Lurz, supra, 666 F.2d at 75-76, but we must

decide what offenses may be used as predicates for the

'2Several other courts of appeals before Garrett were in accord ith

our precedents, see United States v. Gomberg, 715 F.2d 843, 851 (3

Cir. 1983), cert. denied, ____ U.S. ___, 104 S.Ct. 1440, 79 L.Ed.2d

760 (1984); United States v. Jefferson, 714 F.2d 689, 701-03 (7

Cir.1983); United States v. Middleton, 673 F.2d 31, 33 (1 Cir.1982);

United States v. Chagra, 669 F.2d 241, 261-62 (5 Cir.), cert. denied,

459 U.S. 846, 103 S.Ct. 102, 74 L.Ed.2d 92 (1982), while several

others had held that cumulative punishments could be imposed for

violations of §§ 841 and 848, see United States v. Darby, 744 F.2d

1508, 1530 (11 Cir.1984), cert. denied, __ U.S. ____, 105 S.Ct.

2322, 85 L.Ed.2d 841 (1985); United States v. Brantley, 733 F.2d

1429, 1436-37 (11 Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct.

1362, 84 L.Ed.2d 383 (1985); United States v. Mourad, 729 F.2d 195,

203 (2 Cir.1984), cert. denied, ___._ U.S. , 105 S.Ct. 2700, 86

L.Ed.2d 717 (1985); United States v. Phillips, 664 F.2d 971, 1009 (5

Cir.1981), cert. denid, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d

1354 (1982); cf. United States v. Oberski, 734 F.2d 1030, 1033 (5

Cir. 1984) (separate conviction and punishment for § 841 violation per-

missible if not actually relied on in establishing CCE); United States v.

Chagra, 653 F.2d 26, 31-32 (1 Cir.1981) (same), cert. denied, 455 U.S.

907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982); United States v.

Samuelson, 697 F.2d 255, 260 (8 Cir.1983) (same), cert. denied, ___

U.S. ___, 104 S.Ct. 1314, 79 L.Ed.2d 711 (1984). We presume that

the latter group will prevail after Garrett.

A-15

CCE violation. Several propositions that we accept as set-

tled guide our resolution of this issue: (1) 21 U.S.C. § 848

(b)(2)’s requirement of “a continuing series of violations”

requires at least three violations;'? (2) since § 848(b) refers

to “violations of this subchapter or subchapter II of this

chapter [21 U.S.C. §§ 801-966],” violations of 18 U.S.C.

§§ 2 and 1952 do not qualify as predicate felonies for a

CCE charge;'* and (3) violations of § 841 may serve as

predicate offenses and as the necessary three violations for

a series. '5

'3 The Supreme Court’s opinion in Garrett referred to the “three

predicate offenses that must be shown to make out a CCE violation,”

____ U.S. at ___, 105 S.Ct. at 240, and to “the three predicate of-

fenses required to form the basis for a continuing criminal enterprise

prosecution,” id. at ___, 105 S.CT. at 2417. See also id. at____ &

n. 19, 105 S.Ct. at 2424 & n. 19 (Stevens, J., dissenting) (assuming

that “continuing series” means at least three felony violations). Most

of the other courts of appeals have so held. See United States v. Sterl-

ing, 742 F.2d 521, 526 (9 Cir.1984), cert. denied, ___ U.S. oe

S.Ct. 2322, 85 L.Ed.2d 840 (1985) (No. 84-1177); United States v.

Sinito, 723 F.2d 1250, 1261 (6 Cir.1983), cert. denied, U.S. :

105 S.Ct. 86, 83 L.Ed.2d 33 (1984); United States v. Graziano, 710

F.2d 691, 697 n. 11 (11 Cir.1983), cert. denied, if. Se

S.Ct. 1910, 80 L.Ed.2d 459 (1984); United States v. Samuelson, 697

F.2d 255, 259 (8 Cir.1983), cert. denied, U.S. , 104 S.Ct.

1314, 79 L.Ed.2d 711 (1984); United States v. Losada, 674 F.2d 167,

174 n. 4(2 Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73

L.Ed.2d 1341 (1982); United States v. Phillips, 664 F.2d 971, 1013 (5

Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d

1354 (1982); United States v. Chagra, 653 F.2d 26, 27-28 (1 Cir.1981),

cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982);

United States v. Johnson, 575 F.2d 1347 (5 Cir.1978), cert. denied,

440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979).

'4United States v. Webster, 639 F.2d 174, 181 (4 Cir.1981),

modified on other grounds, 669 F.2d 185 (4 Cir.), cert. denied, 456

U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982).

‘SE. g., United States v. Sterling, 742 F.2d 521, 526-27 (9 Cir.1984),

cert. denied, U.S. ____, 105 S.Ct. 2322, 85 LEd.2d 840 (1985);

United States v. Brantley, 733 F.2d 1429, 1436-37 (11 Cir.1984), cert.

denied, ___ U.S. ___, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985).

A-16

Ricks thus has no valid argument against retrial, be-

cause he was convicted of three violations of § 841 (counts

6, 7, and 8). King, however, was charged and convicted of

only two violations of § 841 (counts 10 and 11), and his

conviction under 18 U.S.C. § 1952 (count 3) does not

qualify under § 848. His conviction under § 848 would

thus be invalid if we were persuaded that the § 846 con-

spiracy conviction may not serve as one of the three re-

quisite narcotics violations, '® and that the government did

not, or was not legally entitled to, prove some other quali-

fying violation that was not charged as a separate offense

'6We have previously stated in dicta that a § 846 conspiracy may not

be used to prove the predicate, violation required by § 848(b)(1), Lurz,

supra, 666 F.2d at 76; accord United States v. Jefferson, 714 F.2d 689,

702 n. 27 (7 Cir.1983); but see United States v. Young, 745 F.2d 733,

748-52 (2 Cir.1984), cert. denied, ____ U.S. __]__, 105 S.Ct. 1842, 85

L.Ed.2d 142 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n.

14 (11 Cir.1984), cert. denied, U.S. , 105 S.Ct. 1362, 84

L.Ed.2d 383 (1985); United States v. Middleton, 673 F.2d 31, 33 (1

Cir.1982); cf. United States v. Michel, 588 F.2d 986, 1000-01 (5 Cir.)

(no opinion on issue), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62

L.Ed.2d 32 (1979), but we have also held that a distinct conspiracy

may be used to prove the “series” and other requirements of §

848(b)(2). Lurz at 76-77. Garrett seems to support us on the latter

point and to allow the government at least to count a § 846 violation as

oné of the three necessary for a series. The Garrett Court did not focus

on the identity of the necessary predicate offenses, but Garrett was

convicted of only two substantive violations and two conspiracy

counts, so affirmance indicates that conspiracy violations may con-

stitute a necessary part of the required series. Cf. United States v. Dar-

by, 744 F.2d 1508 (11 Cir.1984) (convictions affirmed where on defen-

dant convicted of two substantive offenses and CCE and other con-

victed of only two conspiracies and CCE charge), cert. denied, ___

U.S. _, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985); United States v.

Bascaro, 742 F.2d 1335 (11 Cir. 1984) (after court vacated § 846 and §

963 conspiracy convictions, only two substantive § 841 violations re-

mained for defendant Villaneuva), cert. denied, __._ U.S. _____ 105

S.Ct. 3477, 87 L.Ed.2d 613 (1985).

A-17

in the indictment.'’ Since King did not object at trial on

these grounds, and thus preserve the point for appeal, we

need not resolve the merits of his possible arguments; we

hold only that the district court committed no plain error

in overlooking or implicitly rejecting these two points, and

thus King’s retrial is not barred.

V.

Defendants’ other assignments of reversible error merit

only summary treatment.

[8] A. We think that the evidence was legally sufficient

to convict each defendant of the crime or crimes with

which he or she was charged. There is thus no defendant

ineligible for retrial.

[9] B. We see no error in the district court’s denial of

the motions of defendants Carter, Roberts and Lindsey

'7Lurz stated that “[i]t is simply incorrect for [defendants] to con-

tend that a minimum of three substantive convictions is required to

establish a § 848 violation.” 666 F.2d at 78 (emphasis added). See also

United States v. Young, 745 F.2d 733, 747 (2 Cir.1984), cert. denied,

wee , 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States

v. Sterling, 742 F.2d 521, 5267 (9 Cir.1984), cert. denied, ____ U.S.

___, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); Sperling v. United

States, 692 F.2d 223, 2267 (2 Cir.1982), cert. denied, 462 U.S. 1131,

103 S.Ct. 3111, 77 L.Ed.2d 1366 (1984); cf. United States v. Brantley,

733 F.2d 1429, 1436 n. 14 (11 cir.1984) (unnecessary to decide issue

because defendant convicted on enough counts), cert. denied,

U.S. ___, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v.

Gombert, 715 F.2d 843, 850 n. 4 (3 Cir.1983) (same), cert. denied,5

___ U.S. ___. 104. S.Ct. 1440, 79 L.Ed.2d 760 (1984); United States

v. Michel, 588 F.2d 986, 1000 n. 15 (5 Cir.) (same), cert. denied, 444

U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979). King did not raise any

objection in the district court to the structure of the CCE charge

against him, so the government did not rely on this argument, and ac-

cordingly we do not decide whether the government’s proof met this

test.

A-18

for a severance. The bases for their motions simply did not

meet the criteria of United States v. Parodi, 703 F.2d 768

(4 Cir.1983), especially because the lateness of the filing by

Carter of his affidavits prevented an effective inquiry into

whether all of the criteria were met. Since there must be a

retrial, Carter’s motion may be considered further by the

district court if Carter continues to press it.

[10, 11] C. We think that the evidence was legally suf-

ficient to permit the jury to conclude beyond a reasonable

doubt that defendant Ricks was not entrapped into pro-

viding drugs to Smith, the police informant; nor do we

think that Smith’s efforts, at the behest of law officers, to

obtain other drugs from Ricks constituted overreaching by

the government and denied due process of law. Ricks’

other attacks on the sufficiency of the proof to convict

him are lacking in merit as we have previously stated.

{[12, 13] D. We are of the opinion that the warrants

authorizing the search of Carter’s residence and his safe

deposit box were issued on a proper showing of probable

cause, and the searches and related seizures of evidence us-

ed at the trial were valid and not offensive to the Fourth

Amendment. Similarly, we think that there was probable

cause for search of the apartment residence of Ricks and

Roberts and although a warrant had not isssued for the

search, there were exigent circumstances for the search ex-

cusing the necessity of the warrant. See United Staes v.

Turner, 650 F.2d 526 (4 Cir.1981).

E. As part of the government’s case, it undertook to

prove that trial counsel for Ricks had been paid $21,750 in

cash by King, Ricks and Meredith over a four-year period

to represent members of their drug distribution network

when those members were arrested on narcotics charges.

Such proof was highly relevant to the status of Ricks and

A-19

King as organizers or managers of a criminal enterprise

because it would show their payment of fees for underlings

who were in trouble. The attorney had been subpoenaed to

appear before the grand jury but he was succesful in

avoiding an actual appearance and submitting only a writ-

ten summary of his testimony.

The government proposed to present this evidence at

trial by a stipulation that avoided disclosure of the at-

torney’s name. All defendants agreed but when the stipula-

tion was offered, King objected on the grounds that his

attorrney-client privilege would be violated and that the

stipulation was inadmissible hearsay and if received would

violate his rights of cross-examination and confrontation.

The district court concluded to admit the stipulation but to

afford King the opportunity to call the lawyer and to ex-

amine him about matters relating to the stipulation. King

did not avail himself of that right.

Before us, King renews the arguments he made in the

district court, and Ricks also contends that his conviction

should be reversed because his lawyer was a damaging

witness against him and he never validly waived the con-

flict of interest. We are not persuaded by these conten-

tions.

{i4, 15] First, we do not think that King’s attorney-

client privilege extended to the information that was prov-

ed. We stated in United States v. (Under Seal), 748 F.2d

871, 874 (4 Cir. 1984), that the privilege “protects only con-

fidential client communications; that is, communications

not intended to be disclosed to third persons other than in

the course of rendering legal services to the client or

transmitting the communications by reasonably necessary

means,” relying upon our prior holdings such as /n re

Grand Jury Proceedings (John Doe), 727 F.2d 1352 (4

A-20

Cir.1984). Fees are not such confidential communications

and evidence of their payment is therefore properly ad-

missible. See In re Special Grand Jury, 676 F.2d 1005,

1009 (4 Cir.), vacated on other grounds, 697 F.2d 112 (4

Cir.1982) (in banc). It is true that Jn re Special Grand

Jury, 676 F.2d at 1009, relying upon United States v.

Hodge & Zweig, 548 F.2d 1347, 1353 (9 Cir.1977), ap-

peared to recognize an exception to the no privilege rule

where “a strong probability exists that disclosure of such

information would implicate that client in the very cri-

minal activity for which legal advice was sought.” But that

holding was displaced by our in banc order, 697 F.2d 112,

and Hodge & Zweig may no longer be good law in the

Ninth Circuit. See Jn re Osterhoudt, 722 F.2d 591, 593 (9

Cir.1983). Certainly its purported teaching has been re-

jected by other circuits. See In re Shargel, 742 F.2d 61 (2

Cir.1984); In re Witnesses Before Special March 1980

Grand Jury, 729 F.2d 489, 494 (7 Cir.1984); In re Grand

Jury Investigation, 723 F.2d 447 (6 Cir.1983), cert. denied,

___U.S. ____, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984); In

re Freeman, 708 F.2d 1571, 1575 (11 Cir.1983). Addition-

ally, the truly damaging aspects of the attorney’s testi-

mony related to fees paid by King, Ricks and Meredith for

others. In these instances they were not clients and had no

privilege.

[16] Second, King was given the opportunity to call the

lawyer and to examine him., When he failed to do so, he

cannot claim that he was denied his right of cross-exami-

nation and confronation.

{17] Third, we do not think that Ricks’ claim of a con-

flict of interest is meritorious., The record discloses that

he joined in the stipulation, and the attorney was not call-

ed as a witness. Hence he was not faced with the unseemly

and ineffective position of arguing his own credibility.

A-21

The conflict cases on which Ricks relies all involve

representation of multiple defendants by one or two law-

yers. They are inapposite here. Ricks was his lawyer’s only

client at trial, and the fact that the lawyer’s records had

been subpoenaed over his objection and would be intro-

duced at trial does not suggest that the lawyer was less

than zealous and loyal in his representation of Ricks. Nei-

ther Ricks nor his lawyer objected to the lawyer’s continu-

ing role in the trial.

We therefore conclude that Ricks has no just cause for

complaint. We caution, however, that the case would be

entirely different if the lawyer had been called as a witness.

In that event, ethical considerations as well as the rules of

the district court would have prevented him from contin-

ued representation of Ricks. We suggest therefore that be-

fore a new trial begins, the district court should ascertain

if King will now join in the stipulation or, if not, if he will

assure the court that the lawyer will not be called as a wit-

ness. Absent joinder in the stipulation or such assurance,

the district court should give careful consideration to

severance of King’s trial or disqualification of the lawyer

as trial counsel.

[18] F. We do not think that the issue of King’s iden-

tification was so central to the case against him or that the

evidence of identification was so weak that the district

court abused its discretion in declining to give the instruc-

tions based upon United States v. Holley, 502 F.2d 273 (4

Cir.1974), which King requested.

[19] G. As to defendant Frisby, we see no error in the

admission into evidence of firearms seized on July 14,

1981 after a shootout between rival drug organizations

over Frisby’s objections that he was not present at that in-

cident and there was no evidence that he ever owned or

A-22

possessed a gun. Frisby was tried as a co-conspirator and

evidence admissible against a member of the conspiracy

was admissible against him. We have held that evidence of

firearms is admissible in narcotics conspiracy cases. See

United States v. Collazo, 732 F.2d 1200, 1206 (4 Cir.

1984), cert. denied, ___. U.S. _-__, 105 S.Ct. 777, 83

L.Ed.2d 773 (1985).

REVERSED AND REMANDED.

WILKINSON, Circuit Judge, dissenting:

The majority suggests that “it was not unreasonable for

defense counsel to have enough certainty in their inter-

pretation of the court’s remarks to negate any duty on

their part to make a further inquiry or to request clarifica-

tion.” Ante at 460. I disagree. Given the ambiguities in the

court’;s statement, the lack of federal or local rules to

justify deductive assumptions about jury selection, and

the importance of exercising peremptory challenges intel-

ligently, it was unreasonable at trial for defense counsel to

gamble without a clarifying inquiry on the accuracy of

their impression that the jury would be chosen from the

first thirty names on the venire list. And it is now un-

reasonable on appeal for this court to excuse that gamble

and to redeem an attorney error by liquidating the large

economic and personal investment in a complicated five-

week trial. Because I believe that the defendants received a

fair trial, in the selection of the jury and in all other

respects, I dissent from the reversal of these convictions.

Proper analysis of this case begins with an examination

of the trial court’s response to the prosecutor’s inquiry

about the then imminent jury selection. The majority’s

A-23

contrary assertion that it need not determine if “the district

court did or did not positively tell counsel that it would

select active jurors from the top of the list,” ante at 460,

begs the question. The exchange between court and coun-

sel is crucial because it helps to resolve the decisive issue on

appeal: whether a reasonable attorney would have re-

quested clarification before basing all peremptory chal-

lenges on the principle that informed the strikes of these

defendants.

In eschewing an examination of how positively the trial

court spoke and in pointing to the undisputed good faith

of defense counsel, the majority addresses this appeal in

part by asking whether, or in what sense, the lawyers ac-

tually understood the proposed method of jury selection.

Such a “subjective” approach to the dispute suffers in a

heightened degree from the problems that are often asso-

ciated with the similar interpretation of contracts — the

difficulty of ascertaining a party’s innermost thoughts and

the disingenuousness of characterizing law as a realization

of consent rather than as an imposition of forms and

obligations. See A. Corbi, Corbi on Contracts § 106.

These disadvantages of the subjective approach are fur-

ther magnified by the failure here of the usual objections

to the rival “objective” method. In a courtroom, perhaps

more than any other place, words may be held to precise

meanings, parties may be charged with a common knowl-

edge of those definitions, and the authorization for legal

enforcement may be traced most fairly to a formal course

of rulemaking rather than to an effectuation of any per-

sonal intentions. For all of these reasons, the most va-

luable perspective in this case is the familiar construct of

the reasonable attorney and the most valuable evidence is

the set of external manifestations on which that attorney

would rely in exercising her peremptory challenges.

A-24

Looking through this perspective at this evidence, I

believe that reasonable attorneys here would have sought

amplification of the trial court’s remarks, before launching

off on an interpretation of their own. The trial court’s

statement, quoted ante at 459, was definite only in declin-

ing to describe any specific method that the court intended

to use to choose the jury. Asked if it would proceed from

the top of the venire list, the court began its response with

“Well, I can’t tell at this point, as far as strikes and so

forth. . . .” This declaration of uncertainty was not with-

drawn, nor was it transformed into a commitment by the

court’s qualifying note about previous jury selections. No

particular pattern was identified or precise expectation

created by the observation that “[I can’t tell at this point

. . .] but ordinarily 1 start from the top, mot any rigid

number, counting from the top. . .” (emphasis added). Fi-

nally, the court’s concluding remarks were tentative, ellip-

tical, and ambiguous, venturing only that “it would be

reasonably fair to say, if you want to exercise your strikes

mostly at the top, and if you’re satisfied with the top, don’t

strike there.” Far from saying what the defense counsel say

they heard, this last clause suggested that counsel might

want to make their challenges someplace other than at the

top of the list and thereby implied an intention to choose

the jury in part from someplace other than the top.

The court also conveyed the same impression by distrib-

uting to the attorneys a list of fifty-seven names on which

to make their strikes. If the court had intended to confine

itself to the first thirty names, it need only have given

counsel a part of the full venire list. While the distribution

of a longer list is not dispositive as to the court’s inten-

tions, it was an additional factor suggesting the ap-

propriateness of a clarifying inquiry.

The court’s words and actions thus provided several dif-

A-25

ferent signals that warned against any exclusive concentra-

tion of peremptory strikes. First, the trial court never pro-

mised to use any specific method of jury selection. Se-

cond, and conversely, the trial court expressly explained

that it was uncertain about the course that it intended to

take. Third, the trial court in different ways indicated that

it might follow a system other than picking solely from the

top of the list. A reasonable attorney would accordingly

have found no predicate in the court’s remarks for an ef-

fective contraction of the venire, and defense counsel

acted improperly to the extent that they relied upon the

ambiguous statement in making such a contraction. !

Nor would a reasonable attorney have reached the

defense counsel’s interpretation by application of any laws

governing the selection of jurors from a fully qualified

venire. Few such rules exist, and none of them required the

trial court to choose from a minimum fraction of the eligi-

ble candidates. Although the majority today endorses such

a practice, ante at p. 459, n. 4, the law since at least 1894

has been that the mode of designating and empanelling

jurors lies within the control olf trial courts, subject only

to Congressional restriction and to “such limitations as are

recognzied by the settled principles of criminal law to be

essential in securing impartial juries for the trial of of-

fenses.” Pointer v. United States, 151 U.S. 396, 407-08, 14

‘It is worth note that at least one reasonable attorney did not share

the defense counsel's interpretation of the court’s statement. The pro-

secutor apparently first assumed that the court would select the jury

from the top of the venire list. He properly sought confirmation of

this assumption, and when the court responded to his inquiry he inter-

preted the statement to mean that the court would choose from the en-

tire venire.

A-26

S.Ct. 410, 414, 38 L.Ed. 208 (1894).2 The latter concern,

the constitutional requirement of an impartial jury, is not

relevant here. The trial court excused eight venire mem-

bers for cause, all of them at the request of the defendants.

On appeal the defendants allege no cognizable prejudice

among the active jurors. This case does not involved a

biased jury, or even an unfair transfer to the defendants of

the burden of avoiding a biased jury. Cf. United States v.

Allsup, 566 F.2d 68 (9th Cir.1977). The principle that a

trial court must empanel an impartial jury therefore could

not have suggested to counsel any particular understand-

ing of the court’s intended method of selection.

The other limitation that Pointer v. United States places

on trial court discretion, that of deference to legislation

and to authorized rulemaking, also would not lead a rea-

sonable attorney to believe that the trial court intended to

draw only from the first thirty names on the fifty-seven

name venire list. Fed.R.Crim.P. 24(b) provides only that

defendants in a felony trial may strike ten candidates from

the venire.? The rule does not prescribe a procedure for

paring the venire or define an extent to which the ten

peremptory challenges must influence the eventual compo-

sition of the jury. To the contrary, jurists since Joseph

Story have observed that “the right of peremptory chal-

lenge is not, of itself, a right to select, but a right to reject

2A trial court might also control its own discretion by promulgating

a local rule. The appellants do not argue that any such local rule ex-

isted or was violated in this case. The situation is therefore different

from United States v. Sams, 470 F.2d 751, 752 (Sth Cir.1972)

(peremptory challenges impermissibly compromised when “without

prior announcement to counsel the trial judge utilized a method of

selecting a jury that varied from the local custom”).

‘The trial court in this case granted the defendants two additional

challenges, which made a total of twelve.

A-27

jurors,” United States v. Marchant and Colson, 25 U.S.

(12 Wheat.) 480, 482, 6 L.Ed. 700 (1827), and cases since

Marchant and Colson have upheld a wide variety of

methods for the exercise of strikes, methods that range not

only in format but also in the substantive force that they

create for peremptory challenges. See, e.g., United States

v. Marchant and Colson (conflicting strikes by co-

defendants); Hanson v. United States, 271 F.2d 791 (9th

Cir.1959) (simultaneous exercise of challenges by prosecu-

tion and defense); United States v. Anderson, 562 F.2d

394 (6th Cir.1977) (local rule precluding challenges to

previously passed jurors); United States v. Blouin, 666

F.2d 796 (2d Cir.1981) (“jury box” system requiring defen-

dant to exercise challenge without knowing entire present

composition of jury); Rosales-Lopez v. United States, 451

U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (limita-

tions on access of counsel to voir dire inquiries that would

guide exercise of challenges). Not suprisingly, courts and

commentators have repeatedly remarked on this absence

of settled patterns for final jury selection. United States v.

Sams, 470 F.2d 751, 755 n. 1 (Sth Cir.1972); United States

v. Turner, 558 F.2d 535, 537 (9th Cir.1977); 2 C. Wright,

Federal Practice and Procedure: Criminal § 387. In the

context of such notorious silence in the rules and variety in

the courts, no reasonable attorney would presume to ex-

tract a certain meaning from a trial court’s uncertain state-

ment about the jury selection procedure.

And a fortiori, as law students say, no reasonable at-

torney would dare extract the most favorable meaning

from the trial court’s non-committal statement. The Fed-

eral Rules of Criminal Procedure obviously do not require

that the exercise of peremptory challenges to be admin-

istered in a fashion that allows defendants the greatest

possible influence over the final jury composition. In the

A-28

absence of any such rule, the proper interpretative attitude

of counsel should be one of caution. The reasonable at-

torney practices in partnerhsip with the prudent attorney.

Furthermore, the usual duty of circumspection applies

with special force to matters of special significance, and as

the Supreme Court has noted, the entitlement to peremp-

tory challenges is “one of the most important of the rights

secured to the accused.” Swain v. Alabama, 380 U.S. 202,

219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), quoting

Pointer v. United States, 151 U.S. 396, 408, 14S.Ct. 410,

414, 38 L.Ed. 208 (1894). This often-quoted characteriza-

tion corresponds with the belief of many trial lawyers that

cases can be won or lost on the basis of effective voir dire

and peremptory challenge. See generally H. Zeisel & S.

Diamond, The Effect of Peremptory Challenges on Jury

and Verdict: An Experiment in a Federal District Court,

30 Stanford L.Rev. 491 (1978). The strategic potential at-

tributed to peremptory strikes has inspired much ingenuity

in the theory of determining the best use of the challenges,

and the same potential should also inspire equal care in the

practice of ensuring the actual preservation of the chal-

lenges. Such care would not reasonably include risking

part of the value of the challenges on even a slight chance

of erroneously interpreting a trial court’s coment.‘

“These defendants did enjoy part of the value of their challenges

despite the confusion that resulted in this appeal, for the final jury in-

cluded none of the venire members whom the defense counsel struck.

The majority assumes that the district court never considered these

candidates: an equaly fair assumption is that the district court might

have chosen the candidates but for the fact that they were rejected by

defense counsel. The court’s own statement supports the latter

assumption; it noted that it might have “picked one of those people

that you struck as the foreman.”

A-29

II

The importance of peremptory challenges explains from

the viewpoint of the bar why a hint of ambiguity should

alert counsel to seek further clarification before risking a

particular course of selection. From the viewpoint of the

bench, the same rule follows from the importance to the

judicial system of prompt resolution of procedural contro-

versies. This concern is most familiar in the context of the

duty of contemporaneous objection. If a reasonable attor-

ney cannot be sure wheter the trial court is acting properly,

the lawyer must usually object at the moment of court ac-

tion or else forfeit the uncertain point. See, e.g., F.R.E.

103(a); Fed.R.Crim.P. 30; Wainwright v. Sykes, '433 U.S.

72, 88-90, 97 S.Ct. 2497, 5507-08, 53 L.ED.2d 594 (1977).

Similarly, if a reasonable attorney cannot be sure how the

trial court is acting, the lawyer should inquire at that mo-

ment or else forfeit the uncertain point.

Here the interests served by a contemporaneous inquiry

are similar to those served by the duty of contempora-

neous objection. See Wainwright, 433 U.S. at 88-90, 97

S.Ct. at 2507-08; Henry v. Mississippi, 379 U.S. 443, 463,

85 S.Ct. 564, 575, 13 L.Ed.2d 408 (1965) (Harlan, J.,

dissent.u.z). The trial judge can clarify the selection pro-

cedures at the outset before the time and effort of trial

participants have been expended. The finality of criminal

judgments would be encouraged. Sandbagging, whereby

counsel forego inquity of the court, exercise their peremp-

tory challenges on the most favorable interpetation of an

ambiguity, and then take exception when that interpreta-

tion is not followed, would be discouraged.

It would be ideal, of course, for the trial court to explain

to counsel the procedure for jury selection with perfect

clarity. It would be preferable if there were “local rule of

court spelling out the procedure for exercising peremptory

A-30

challenges in criminal cases,” See United States v. Turner,

558 F.2d at 537. But desirability of reform does not relieve

courts from dealing with the world that confronts us. I am

not convinced that trial judges are so sensitive, trial law-

yers so bashful, or relations between the two so brittle and

uncommunicative that we cannot require of counsel a res-

pectful inquiry without risking the ire or annoyance of the

bench. Nor, in my judgment, are the normal obligations

on government to give adequate notice of rights to

criminal defendants shifted by encouraging an inquiry in

the event that notice itself is, for understandable reasons,

not clear.

The instant case well illustrates the interests that are

served by a requirement of contemporaneous inquiry. The

trial of these defendants lasted for five weeks and filled a

transcript of more than four thousand pages, statistics

that barely hint at the time, effort, and money that the

public has invested in this case. Today the process begins

again, probably at an even greater cost. Inevitably, other

litigants will now be delayed or denied the use of finite

judicial resources. The heavy burden thus placed on all

litigants by a simple failure to communicate must be dis-

tributed through an equally heavy burden on each litigant

to avoid confusion and misunderstanding. If a trial court

statement admits of different meanings, and particularly

as in this case of sharp abmguity, counsel should ask the

court for clarification rather than asking society to insure

the risks of uncertain reliance. In holding the conduct of

these defense attorneys to have been reasonable, the ma-

jority adopts a standard of behavior that does not ade-

quately respect the important values of fairness through

judicial efficiency, concerns that in our legal system must

often be advanced by influencing the conduct of counsel.

I would affirm these convictions.

sane s

B-1

APPENDIX B

United States of America, Appellee, v. Thomas Calvin

Ricks, a/k/a Joe Dancer, Appellant; United States of

America, Appeilee, v. James A. Carter, Appellant;

United States of America, Appellee, v. Marcell Moffatt,

a/k/a Black Barney, Appellant; United States of

America, Appelle, v. Stanley Rodgers, Appellant;

United States of America, Appellee, v. Kerney William

Lindsey, a/k/a Wilco, Appellant; United States of

America, Appellee, v. Beatrice Roberts, Appellant;

United States of America, Appellee, v. Maurice David

King, a/k/a Peanut, Appellant

NOs. 83-5060(L), 83-5061, 83-5082, 83-5083, 83-5084,

83-5066, 83-5081

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Slip Opinion

October 2, 1986, Decided

APPEAL-STATEMENT:

Appeals from the United States District Court for the

District of Maryland, at Baltimore. Alexander Harvey, II,

Chief District Judge. (CR-H 82-00401).

COUNSEL:

Ransom J. Davis (H. Russell Smouse; Harry J. Matz;

Melnicove, Kaufman, Weiner & Smouse, P.A. on brief)

for Appellant James A. Carter; Stuart R. Blatt for Ap-

pellant Beatrice Roberts.

W. Gary Kohlman (Kohlman & Fitch; Kenneth Michael

Robinson on brief) for Appellant Maurice David King.

B-2

James B. Moorhead, Assistant United States Attorney

(Brookinridge L. Willcox, United States Attorney.

J. Frederik Motz, United States Attorney; Stephen

Bailey, Second Year Law Student on brief) for Appellee.

OPINION BY: WINTER

OPINION:

Before WINTER, Chief Judge, RUSSELL,

WIDENER, HALL, PHILLIPS, MURNAGHAN,

Slip Opinion

SPROUSE, ERVIN, CHAPMAN, and WILKINSON,

Circuit Judges; sitting in banc.

WINTER, Chief Judge

These appeals have been reheard in banc. We conclude

that the judgments of conviction for all defendants must

be reversed and they must be granted new trials.

I.

The facts are set forth in the panel opinions and need

not be repeated here. United States v. Ricks, 776 F.2d 455

(4 Cir. 1985). The panel majority ruled that the district

court committed reversible error when it failed, albeit in-

advertently, to give defense counsel unequivocal advice as

to the section of the list of jurors from which the jury

would be selected. The failure, it concluded, resulted in an

impermissible dilution of defendants’ statutory right to

peremptory challenges of prospective jurors. We too hold,

for the reasons set forth by the majority and the additional

reasons set forth below, that there was an impermissible

dilution of defendants’ statutory right to peremptory chal-

lenges of prospective jurors necessitating reversal of their

convictions and the grant of a new trial.

B-3

Because the panel majority granted the defendants a

‘ new trial, it expressed its view on a number of issues which

were likely to arise on retrial and it withheld decision on

others. As to those which were decided, we too make the

same rulings for the reasons advanced by the majority. We

also decide one issue reserved by the majority, and hold

that King may be convicted of a violation of 21 U.S.C. §

848 upon proof of two violations of 21 U.S.C. § 84] plus

proof of a violation of 21 U.S.C. 846. Stated otherwise,

we rule that a conviction of a conspiracy under 2] U.S.C.

§ 848 may be a predicate offense for conviction of

violating 18 U.S.C. § 848.

Il.

The majority panel opinion expresed two thoughts

which we think are an alternate basis of decision. First, in

footnote 4 it was said “that an excessively large venire

could have the. . . offset [of diluting the right to peremp-

tory challenges] even if the procedure were clearly explain-

ed. The usual practice with a struck jury system, which we

encourage, is for the list to contain only the approximate

number of necessary potential jurors.” Next, in footnote

9, it is suggested that “absent a local rule of court or

established local practice about how a jury will be selected

and how peremptory strikes should be exercised with re-

spect to a large venire, there is a duty on tne part of the

court to give clear, unambiguous instructions to counsel

about the procedure to be followed and that a failure on

the part of the court in this respect is plain error.” Closer

study of the authorities sustaining the validity of a “struck

jury” system leads us to hold that it is essential to the

validity of a jury chosen by the “struck jury” system that

the list given to counsel contain only the approximate

number of necessary potential jurors, or, if a larger list is

given, that the court give clear, unambiguous instructions

B-4

about the portion of the list, containing not more than the

approximate number of necessary potential jurors, from

which the jury will be selected.

A.

The right to peremptory challenges has been charac-

terized as “one of the most important of the rights secured

to the accused.” Pointer v. United States, 151 U.S. 399,

408 (1894). Although not a constitutional right, “[t]he per-

sistence of peremptories and their extensive use demon-

strate the long and widely held belief that peremptory

challenge is a necessary part of trial by jury.” Swain v.

Alabama, 380 U.S. 202, 219 (1965). Most recently, in a

case limiting the use of peremptories to exclude veniremen

on the basis of race, the Supreme Court again acknowl-

edged the historic function of peremptory challenges “as

one means of assuring the selection of a qualified and un-

biased. jury.” Batson v. Kentucky, No. 84-6263, 54

U.S.L.W. 4425, 44228 (U.S. Apr. 30, 1986).

The method for exercising peremptory challenges de-

pends upon the method of jury selection. In the “jury box”

system of jury selection, the parties exercise their

challenges against jurors already seated in the box, and

who will remain on the jury unless challenged. This case,

however, concerns the use of the “struck jury” method of

jury selection where the trial judge tenders to each party a

list of qualified veniremen and each side exercises its

peremptories against the names on the list. If, after each

side exercises its strikes, there remains more than twelve

persons on the list, the trial judge must decide which

twelve will constitute the jury.

For a fuller discussion of differences between the

“struck jury” and “jury box” methods of administering

peremptory strikes, see United States v. Blouin, 666 F.2d

796 (2 Cir. 1981).

B-5

It is self-evident that the right to a given number of

peremptory challenges becomes less and less effective as

the list of potential jurors against which the challenges

must be exercised grows larger than the approximate num-

ber of veniremen needed to comprise a jury. When the

“jury box” method of selection is used, a party knows that

each time he strikes a venireman sitting in the box, he is

assured of removing someone from the panel who other-

wise would serve as a juror. But when the trial court sub-

mits a struck jury list on which more than twelve names

will remain after each side exercises its peremptory strikes,

and the judge then selects the jury in a manner not previ-

ously disclosed, the defendnat faces the prospect — the ac-

tuality in the instant case — of wasting strikes on

veniremen the trial judge ultimately chooses to exclude

from the jury.

The effect of a larger than necessary “struck jury” list is,

thus, to dilute the defendant’s right to exclude potential

jurors of whom he disapproves, but for whom he lacks a

basis for an objection for cause. The Supreme Court has

stated: “The denial or impairment of the right [to peremp-

tory challenges] is reversible error without a showing of

prejudice [citations omitted]. ‘For it is, as Blackstone says,

an arbitrary and capricious right; and it must be exercised

with full freedom, or it fails of its fuli purpose.’ ” Swain,

supra, at 219 (quoting Lewis v. United States, 146 U.S.

370, 378 (1892)). See also Pointer, supra, at 408 (“Any

system for the impanelling of a jury that prevents or em-

barrasses the full, unrestricted exercise by the accused of

that right, must be condemned.”) We think it clear that the

dilution that results from the court submitting an overly-

large struck jury list without limiting instructions hinders

the full, unrestricted exercise of peremptory challenges

and violates an essential part of the right io trial by jury.

B-6

We reach this conclusion from our review of the history of

the struck jury system.

B

Swain v. Alabama, 380 U.S. 202, 217 (1965), noted that

“[t]he system of struck juries has its roots in ancient

common-law heritage.” In a footnote the Court describes

how the jury was selected: “Historically 48 names would

be selected from a special jury list and each side would

alternately strike 12 names, the remaining 24 being sum-

moned for the case.” Id. at 217 n.21. The Court there cites

to Blackstone who explains that this practice of selecting

“special juries” was “originally introduced in trials at bar

when the causes were of too great nicety for the discussion

of ordinary freeholders, or where the sheriff was suspected

of partiality.” 3 Blackstone’s Commentaries 357 (1897)

(emphasis in original). Common juries were selected by

the “jury box” method. Id. at 358.

The common-law method might seem to support the

practice of the district court in the instant case, because

after each side exercised twelve peremptory strikes, the re-

maining number (24) was twice as large as necessry for the

jury. But at common law, the veniremen wer summoned

by the sheriff after the parties exercised their strikes

against the list. Experience demonstrated that twenty-four

veniremen were usually necessary to ensure that at least

twelve persons appeared. J. Bentham, The Elements of the

Art of Packing as Applied to Special Juries 31 (1821); see

also, Nesmith v. Atlantic Ins. Co., 8 Abb. Pr. 423, 424

(N.Y. 1859). When less than twelve persons appeared, the

court would simply complete the jury with “persons pre-

sent in court.” 3 Blackstone’s Commentaries 385 (1897).

Thus there was reason to require that peremptories be ex-

ercised against an excessively large list. By contrast, today

there is not the same need to call an excessive number of

B-7

veniremen because there is better attendance and statis-

tically the number of excuses for cause can be determined

with great accuracy. As a result, a sufficient number of

veniremen to constitute a jury after the exercise of

peremptories is usually present at the time that peremptory

strikes are exercised. Further, at common law, if more

than twelve veniremen did appear, the trial judge did not

simply select any twelve to serve as jurors. In England, the

twelve whose names “stood first” on the list were selected.

Bentham, supra, at 31. Thus counsel had some indication

of the portion of the list from which jurors would be

chosen. In this country, Swain cites the New Jersey case of

Brown v. State, 92 N.J.L. 666, 42 A. 811, aff'd, 175 U.S.

172 (1899) as illustraive of the struck jury system at com-

mon law in the United States. Swain, supra, at 217 n.21.

Under that system, once the “special jury” method was

employed to obtain twenty-four potential jurors, the petit

jury was selected from the twenty-four by using the “jury

box” method of selection. In this last step of selection, the

defendant was given an additional set of peremptories.

In Brown, the defendant challenged the struck jury

system of New Jersey. At one time the New Jersey system

was exactly as Swian described: each side struck 12 names

from a list of 48, leaving 24. By an Act of 1898 the struck

jury system was modified so that the two parties each

struck 24 names from a list of 96, leaving 48. The 98

names are “placed in the box” and “the jury for trial of the

case is drawin in the usual way.” 42 A. at 921. The Court

of Errors and Appeals of New Jersey explained the

system:

From the 96 names selected, the prisoner or his counsel

is permitted to strike 24. The 48 names that remain afer

the prosecutor and the defendant have completed the

striking are returned as the panel from which the jury of

B-8

12 men is to be selected. The list form which such panel is

to be selected is in the hands of the defendant or his

counsel at least 12 days before the impanelling of the jury.

Ample time is afforded to him between the striking of the

panel of jurors to be returned and the time of drawing the

trial jury to enable counsel to ascertain grounds of objec-

tion to individual jurors which would be available upon a

challenge for cause and the defendant is allowed in addi-

tion 5 peremptory challenges as the names are drawn from

the box. As the right of challenge is not a right to select,

but to exclude, the accused on the striking of the jury has

power to exclude 24 at will, and at the drawing of the

names from the box to form the jury of 12 he has in addi-

tion 5 peremptory challenges.

Id. at 818 (emphasis added). When the New Jersey court

describes the second strage of the selection, the drawing of

the names from the box, it is describing the “jury box”

method. At this point the defendant is granted an addi-

tional five peremptory strikes against those drawn from

the box to constitute the petit jury.

Thus the common-law heritage does not support the

challenged practice here. The rationale for summoning

more than the minimum number required to draw a jury

does not exist today where the veniremen are summoned

and are present in the courtroom before any exercise of

peremptory challenges. And even at common law, the

defendant knew in advance of the means by which the

final selection would be made. Certainly New Jersey’s two-

tiered system of peremptories reflects the common law’s

exceedingly strong belief in the importance of peremptory

challenges.

The Supreme Court first considered and upheld the

validity of a struck jury system in Pointer v. United States,

151 U.S. 396 (1894). Under that Arkansas system, “[t]he

B-9

defendant and the government were . . . furnished, each,

with a list of the thirty-seven jurors [generally qualified

under the law], that they might make their respective

[peremptory] challenges, twenty by the defendant and five

by the government, the remaining first twelve names, not

challenged, to constitute the trial jury.” 151 U.S. at 399

(emphasis added). See also id. at 409 (emphasis added)

(the defendant had “notice from the court that the first

twelve unchallenged would constitute the jury”). The

defendant objected, claiming that his right to peremptory

challenges was impaired because he had to strike from a

list of thirty-seven potential jurors, not knowing who the

government would strike; consequently, the defendant

might strike the same person the government struck, and

waste a peremptory strike.

The Court rejected the defendant’s claim by noting the

fairness of the procedure employed:

Being required to make all of his peremptory challenges at

one time, he was entitled to have a full list of jurors upon

which appeared the names of such as had been examined

under the direction of the court and in his presence, and

found to be qualified to sit on the case. Such a list was fur-

nished to him, and he was at liberty to strike from it the

whole number allowed by the statute, with knowledge that

the first twelve on the list, not challenged by either side,

would constitute the jury.

Id. at 411 (emphasis added). While it is not clear from the

opinion that the defendant’s knowledge that the first

twelve unchallenged jurors would constitute the jury was

necessary to the Court’s decision to uphold the struck jury

system, it was certainly a significant factor. In addition, as

the review of further cases will demonstrate, the trial

court’s decision to submit a number of qualified jurors

B-10

(37) equal to the combined number of peremptory chal-

lenges (20 defense and 5 prosecution) plus the twelve

jurors needed for trial, was not accidental. It was simply

following the standard and historic means of employing

the struck jury method.

Decisions in several of our sister circuits also de-

monstrate that the struck jury list is traditionally limited to

the number necessary to provide the petit juiry. See United

States v. Blouin, 866 F.2d 796 (2 Cir. 1981); United States

v. Flaherty, 668 F.2d 566 (1 Cir. 1981); United States v.

Morris, 623 F.2d 145 (10 Cir.), cert. denied, 448 U.S. 1065

(1980); United States v. Williams, 447 F.2d 894 (5 Cir.

1971); Amsler v. United States, 381 F.2d 37 (9 Cir. 1967).

Although none of these cases actually holds that it is error

for a district court to submit a jury list to counsel

with more names than required, each case upholds a “struck

jury” system including such a limit. In Blouin, the court

explains:

Under the “struck jury’ system, an initial panel is drawn by

lot from those members of the array who have not been

challenged and excused for cause; the size of this initial

panel equals the total of the number of petit jurors who

will hear the case (twelve in a federal criminal trial), plus

the combined number of peremptories allowed to both

sides (normally sixteen in federal felony trials, Fed. R.

Crim. P. 24(b)). Counsel for each side then exercises their

peremptory challenges, usually on an alternating basis,

against the initial panel until they exhaust their allotted

number and are left with a petit jury of twelve.

Id. at 796-9 (emphasis added). In Amsler, the district court

submitted a list of thirty-seven veniremen to provide a jury

of twelve with our alternates where the defense had thir-

teen peremptory strikes, the government had six, and each

side was given an additional strike against the alternates.

B-11

In upholding this struck jury system, the Ninth Circuit

quoted the district judge’s statement that “at all times

counsel knows who their ultimate jury is going to be, and

it is not exercising a challenge and not knowing who you

might draw subsequently.” Id at 44. The court concluded

that the system used “was eminently fair to both sides.” Id.

See also Flaherty supra, at 601 (33 names on list; minus 7

government peremptory strikes, 12 defense peremptory

strikes; leaving a jury of 12 and 2 alternates); Morris,

supra, at 151-52 (22 names on list; minus 6 government

strikes, 10 defense strikes; leaving a jury of 6 with alter-

nates to be selected separately); Williams, supra at 996-97

(32 namess on list; minus 6 government peremptory

strikes, 10 defense peremptory strikes, 1 additional strike

for each side against the alternates; leaving a jury of 12

and 2 alternates).

Thus, in these five cases upholding the struck jury syst

em, in addition to Pointer, the districdt courts had all

limited the jury lists to the number of potential jurors

necessary to provide a petit jury after the exercise of

peremptory strikes. It is significant that all of these cases

describe the system as such, because after an extensive

review of federal cases, we have found no case supporting

the contrary view. Thus, in every case where a court ex-

plained numerically how the struck jury system operated,

the district court had provided no more names than

necessary to fill out the jury panel. This fact at least in-

dicates that the procedure followed by the district court in

the instant case, i.e., tendering a longer list, without clear-

ly identifying the place where selection of the jury would

begin, is without precedent.

More significantly, from the historic operation of the

struck jury system and from the careful recitation of facts

showing that in each case upholding its validity, the num-

B-12

ber of veniremen supplied to counsel did not exceed the

number of jurors actually rquired plus the authorized

number of peremptory challenges, we conclude that a

limitation of this kind is an essential requirement of a valid

struck jury system. It follows that if a list contains more

names than are needed under this formulation, it becomes

the duty of the district court to provide the functional

equivalent by stating in unequivocal language the portion

of the list which contains not in excess of the number of

veniremen necessary to achieve a jury from which actual

jury selection will be made, and we so hold. The failure to

do so in this case is reversible error.

IIl.

The majority panel opinion did not undertake to decide

King’s contention that a conviction under 21 U.S.C. § 846

could not serve as one of the three requisite narcotics vio-

lations upon which there could be a conviction for viola-

tion of 21 U.S.C. § 848. It noted, hwoever, that dicta in

United States v. Lurz, 666 F.2d 69 (4 Cir. 1981), cert.

denied, 459 U.S. 843 (1982), indicated that his contention

was meritorious.

Upon consideration by the in banc court, we conclude

that King’s contention is lacking in merit and that the dicta

in Lurz to the contrary is not the law of this circuit. We are

persuaded by the holdings in our sister circuits that the

government may rely on a § 846 violation to esablish a

§ 848 offense, and we conclude to follow them. See United

States v. Schuster, 769 F.2d 337, 345 (6 Cir. 1985); cert.

denied, 108 S.Ct. 1210 (1986); United States v. Jones, 763

F.2d 518, 524-25 (2 Cir.), cert. denied, 106 S.Ct. 386

(1985); United States v. Young, 745 F.2d 733, 748-52 (2

Cir. 1984), cert. denied, 105 S.Ct. 1842 (1985); United

States v. Brantley, 733 F.2d 1429, 1436 n.14 (11 Cir.

B-13

1984), cert. denied, 105 S.Ct. 1362 (1985); United States v.

Middleton, 673 F.2d 31, 33 (1 Cir. 1982).

Before the in banc court, King called attention to the

portion of the record in which he preserved the point for

review on appeal. The majority panel opinion erroneously

thought that the issue was not preserved.

REVERSED AND REMANDED.

DISSENT BY: WILKINSON

DISSENT:

WILKINSON, Circuit Judge, with whom Circuit

Judges Donald RUSSELL and K.K. HALL join, in dis-

senting:

The court today announces, and applies retrospectively,

a new rule that affects every criminal trial in this circuit:

district judges must limit each venire to the minimum

number necessary to accommodate peremptory strikes and

to fill a jury. I cannot agree with the court’s assumption of

power or with its assumptions about the nature of peremp-

tory challenges. The enactment of this new rule overrides

the trial courts’ traditional discretionary authority in an

area of long-running debate and considerable creativity.

And the premises of the new rule overstate the defendants’

peremptory rights and understate the value of a large

venire. I therefore continue to dissent from the reversal of

these convictions.

The panel opinions primarily addressed the duty of

counsel to seek clarification of an ambiguous court state-

ment about jury selection. I adhere to my views on that

issue but concentrate here on the point that no rules “re-

quired the trial court to choose [jurors] from a minimum

fraction of the eligible candidates.” United States v. Ricks,

B-14

776 F.2d 455, 468 (4th Cir. 1985) (Wilkinson, Jr., dissent-

ing).

I.

The majority holds that the size of the venire caused “an

impermissible dilution of defendants’ statutory right to

peremptory challenges of prospective jurors.” Ante at 5.

Whether any “dilution” occurred, however, depends on

the definition of the “statutory right to peremptory chal-

lenges.” The first place to look for that definition is the

statute in question, or in this case, Fed.R.Crim.P. 24(b).

That rule, which is not even mentioned by the majority,

says nothing about the size of the venire. It provides only

that “[i]f the offense charged is punishable by imprison-

ment for more than one year, the government is entitled to

six peremptory challenges and the defendant or defen-

dants jointly to ten peremptory challenges . . . . If there is

more than one defendant, the court may allow the defen-

dants additional peremptory challenges and permit them

to be exercised separately or jointly.” This statutory right

to exclude ten venire members was fully satisfied here. The

defendants struck twelve names from the list, and none of

those people served on the jury. If not for the defendants’

strikes, as the district court pointed out, one of the exclud-

ed venire members might have become the jury foreman.

Although the size of the venire did not affect the defen-

dants’ right to strike ten venire members, it did affect their

ability to use the strikes to determine the composition of

the jury. This latter, greater, power is what the majority

finds has been “diluted.” But apart from the Rule 24(b)

authority to veto a designated number of venire members

— to reject the most objectionable veniremen — the de-

fendants simply had no right te determine the composition

of their jury. It has long been settled that “[t]he right of

peremptory challenge is not, of itself, a right to select, but

pene von er

B-15

a right to reject jurors.” United States v. Marchant and

Colson, 25 U.S. (12 Wheat.) 480, 482 (1827). The chal-

lenge may help to dispel a defendant’s fears of juror bias,

but it does not go so far as to guarantee that every

venireman not struck will be chosen. Rule 24(b) says noth-

ing about the force of the challenges, nothing about the

permitted size of the venire, nothing about any relation-

ship between the size of the venire and the number of

challenges. No other rule or statute addresses these sub-

jects or confers the right the majority manufactures.

The majority believes that the right of peremptory

challenges extends beyond the statutory entitlement set

forth in Rule 24(b). Its reference to a “dilution” imply that

the right also guarantees an extraordinary measure of in-

fluence in the exclusion of qualified venire members, and

its requirement of a minimum venire reflects an assump-

tion that the challenges must offer defendants the max-

imum influence possible for the given aliotment of strikes.

The majority seeks to base this assumption on authority

that ensures a “full” exercise of the right to peremptory

challenges. Ante at 9. The cases, however, do not support

that interpretation.

Pointer v. United States, 151 U.S. 396 (1894), the

leading Supreme Court case on the “struck jury” system,

directly refutes the majority’s premise that the right to a

specific number of peremptory challenges implies a right

to the greatest possible power of exclusion. As in Lewis v.

United States, 146 U.S. 370 (1892), the trial court required

the defendant to exercise his twenty peremptory challenges

without knowing which venire members the prosecution

would strike. The effect of this procedure was, by the logic

of today’s majority, a “dilution” of the statutory right of

peremptory challenges: the defendant faced the prospect

of exhausting strikes on venire members who, even with-

B-16

out the defendant’s challenge, would not have become

jurors. Cf. ante at 8. The defendant would have enjoyed

an “undiluted” influence if the prosecution had first used

its challenges, and some jurisdictions did require or sug-

gest that the prosecutionn strike first. Pointer v. United

States, 151 U.S. at 410. But the Supreme Court held una-

nimously that the contested procedure was not “in deroga-

tion of the right of peremptory challenge belonging to the

accused” because the defendant “was given, by the statute,

the right of peremptorily challenging twenty jurors. That

right was accorded to him.” Id. at 411; see also id. at 412

(“He was only entitled, of right, to strike the names of

twenty * * * that a defendant “cannot succeed in his claim

simply by showing that he could, under some procedure,

have made more effective use of his peremptories.” United

States v. Blouin, 666 F.2d 798. By relying on the observa-

tion that “the right to a given number of peremptory chal-

lenges becomes less and less effective as the list of po-

tential jurors against which the challenges must be exercis-

ed grows.

The cases involving the “jury box” method of selection

also demonstrate that the trial co...: may adopt a pro-

cedure that significantly limits the relative value of the

challenges. Under this system, the iast peremptory strike is

exercised before the last replacement is known. If the par-

ties use all their challenges, “each side must accept at

least one juror whom he has not had an opportunity to

challenge.” United States v. Blouin, 666 F.2d 796, 798

(2nd Cir. 1981). Moreover, trial courts may and do vary

the “Jury box” system in ways that further restrict the

defendant’s entitlement. Id. at 799; see also St. Clair v.

United States, 154 U.S. 134, 147-48 (1894); United States

v. Pimentel, 654 F.2d 538, 540-41 (9th Cir. 1981); United

States v. Anderson, 562 F.2d 394, 396-97 (6th Cir. 1977);

9 ad OB IE GAA E O

Ua dink at Dewitt 1 eaten Pech

B-17

United States v. Mackey, 345 F.2d 499, 501-03 (7th Cir.),

cert. denied, 382 U.S. 824 (1965). The larger,” ante at 8,

the majority ignores that lesson and a substantial body of

case law.

The majority opinion also portends an unfortunate shift

of power in jury selection toward appellate forums. The

majority substitutes appellate fiat for trial flexibility in an

area where district judges perform the daily duties of ad-

ministration and where diversity and experimentation

have long been permitted and encouraged. Indeed, as the

extraordinary variety both of “jury box” and “struck jury”

systems demonstrate, see United States v. Blouin, 666

F.2d at 797-8, trial courts have been forums where dif-

ferent theories of selection have held sway. Rule 24(b) ac-

commodatea this variety by refusing to prescribe a par-

ticular procedure. Appellate judges ought likewise to resist

the temptation to impose their own preferences upon this

welcome diversity of practice and recognize that “the

mode of designating and empanelling jurors for the trial

of cases in the courts of the United States is within the con-

trol of those courts, subject only to the restrictions Con-

gress has prescribed and, also, to such limitations as are

recognized by the settled principles of criminal law to be

essential in securing impartial juries for the trial of of-

fenses.” Pointer v. United States, 151 U.S. at 407-08; see

also Lewis v. United States, 146 U.S. at 379; St. Clair v.

United States, 154 U.S. at 147-48. The majority does not

acknowledge this flexibility entrusted to the district court.

Nor does the majority consider the possible explanations

for the manner in which this district court exercised its

discretion.

The limitations of trial court discretion suggested by

Pointer v. United States do not apply here. The defen-

B-18

dants received all of the challenges prescribed by Con-

gress. They were not forced to use their strikes to secure a

qualified jury and do not argue now that any juror should

have been excused for cause. Cf. United States v. Rucker,

557 F.2d 1046 (4th Cir. 1977). Nor do they argue that the

district court violated the prior commitment of any local

rule.

Cf. United States v. Sams, 470 F.2d 751, 752 (Sth Cir.

1972).

A large venire improves the trial process because it

enhances the likelihood that the jury will include a fair

cross-section of the community. See Taylor v. Louisiana,

419 U.S. 522, 528 (1975) (“the selection of a petit jury

from a representative cross section of the community is an

essential component of the Sixth Amendment right to a

jury trial”); see also 28 U.S.C. § 1861. The Surpeme Court

has noted that a small jury panel is unlikely to allow ade-

quate minority participation. Ballew v. Georgia, 435 U.S.

223, 236-37 (1978). “Further reduction in size will erect ad-

ditional barriers to representation.” Id. at 237.

The same principles apply to the size of the venire. If a

minority comprises 10% of the population from which the

venire is drawn, venires with thirty members are more than

twenty times more likely to include no members of that

minority than venires with sixty members. See F. Mostel-

ler, R. Rourke & G. Thomas, Probability with Statistical

Applications (2nd ed.) at 138-39. The difference is not a

matter of constitutional right; the venire need only be ran-

dom, and a venire of thirty would have been acceptable in

this case. But the district court’s procedure promoted con-

stitutiohat-vatues that remain important after the mini-

mum standard has been satisfied. The right to exercise

peremptory challenges must be accommodated to conflict-

Ne aN tes LSA ARREST a OS Rh A MRR te

B-19

___, 106 S.Ct. 1712, 1724 (1986). Any holding that ac-

cords defendants an exaggerated entitlement to influence

the selection of their jury and downplays the value to cri-

minal justice of a minority presence on trial juries is

regrettable.

Il.

The selection among qualified potential jurors is an inci-

dent of trial in which the districdt court enjoys wide discre-

tion. The defendant’s right of peremptory challenge does

not require a minimu*a venire, and the valid preference for

a representative jury might lead the trial court toward a

large panel of candidates. The majority today disregards

these considerations and forsakes a fair process for the im-

positon of a more familiar one. Its dictate is not necessary,

and its application here is not wise.

I would affirm the judgment of the district court.