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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986

## Text

86 a7 ma a ¢ vara .

| 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
CMT PORUNND 25 AA SS
ii AAT N US noone cin cctabenaseruawanns ii
IE oi vias inn dick eee ene 1
PECTIN oon 5 5 oink cnc 5c See egos 2
CONSTITUTIONAL AND STATUTORY PROVISIONS

cee ee ONC PE oS ER 2
SEUNG 5.5 csics i sasincscgpeeee meee ee 3
REASONS FOR GRANTING THE PETITION ..........---.-- 4
SRTGAMION Ai.) ss scsccaees ee 12
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TABLE OF AUTHORITIES
Cases: Page

Brown vy. Ohio,
ne eee a hae de dW Oa wee Ke 11

Garrett v. United States,
ee PO OP kk wna vices cues 3, 8-11

Jeffers v. United States,
so Uisis bn he ddd 6k ood Veen i 3, 32%

United States v. Jefferson,
I ME os ig wu c wees encedeuseusbéeyses 7

United States v. Lurz,
I OOO oo ed was ct nescevi seas 3.8. 7, 34

United States v. Ricks,
aa hve us bale wed ¥ wees 8 3,9

United States v. Ricks,
rie eee. Gero Oct 2. 1966) (en banc) .......... 3

Whalen v. United States,

Be ees late kwcee eee oe taduaaee 5
Constitutional Provisions and Statutes:
Amendment V of the Constitution of the United States
ee waded eacbveseseect sue 2,3

Ee Pe CO gc kg seen vc V vines aecsacvaens passim

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2310%3A1. Public record. Not legal advice.