United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2006 Decided August 15, 2006
No. 05-3070
UNITED STATES OF AMERICA,
APPELLEE
v.
MATTHEW WEST, A/K/A TITUS SHACKLEFORD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00093-01)
James W. Beane, Jr., appointed by the court, argued the
cause and filed the briefs for appellant.
Bernard J. Delia, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman,
Assistant U.S. Attorneys.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: A jury found defendant Matthew
West guilty of unlawful possession of a firearm and ammunition
by a convicted felon. West raises two issues on appeal. First,
he argues that the district court’s use of compound questions
during voir dire denied him sufficient information to challenge
prospective jurors for cause and impaired his ability to exercise
his peremptory challenges intelligently. Second, he contends
that the district court erred in failing to suppress evidence of the
gun found in his bag. For the reasons set forth below, we affirm
the judgment of conviction.
I
West was a passenger on a Greyhound bus traveling from
New Jersey to North Carolina on February 2, 2004. During a
brief stopover at the Greyhound terminal in Washington, D.C.,
officers from the Drug Interdiction Unit of the Metropolitan
Police Department (MPD) boarded the bus and began
questioning passengers. West was seated in the last row of the
bus. Detective James McNamara -- who was wearing street
clothes and did not display a weapon -- approached West,
showed him his badge, and identified himself as an officer with
the Drug Interdiction Unit. In a conversational tone, McNamara
asked to see West’s bus ticket. West handed over his ticket,
which McNamara examined and returned. Next, McNamara
inquired as to whether the bag at West’s feet belonged to him
and whether he had packed it himself. West answered “yes” to
both questions. McNamara then asked to search the bag. West
opened it and began moving items around so that the detective
could see what was inside. McNamara then asked West for
permission to search the bag himself to ensure his safety.
At this point, the recollections of Detective McNamara and
defendant West diverge. At a pretrial hearing held to consider
West’s motion to suppress evidence, McNamara testified that
3
West told him he could search the bag, and that West then held
the bag’s flap back to allow the search. As the detective moved
some clothing, he discovered a loaded revolver and placed West
under arrest. By contrast, West testified that, although he
opened the bag for the detective and “didn’t mind going through
it” for him, he “never told [McNamara] he [could] go through
it.” Suppression Hr’g Tr. 56 (May 5, 2004). After hearing the
conflicting testimony, the district court concluded that West had
consented to the search, that his consent was voluntary, and that
evidence regarding the gun was therefore admissible at trial.
Jury selection commenced on September 29, 2004. Before
voir dire began, the lawyers were given a list of the occupations
that potential jurors had reported on their juror questionnaires.
All but six potential jurors on the panel had listed their
occupations.
The court conducted voir dire by asking the panel a series
of twenty-nine questions. The questions had either one or two
parts. In a one-part inquiry, the court simply asked the venire
members an open-ended fact question, such as: Do you know
any of the prospective trial witnesses (whom counsel had earlier
listed)? The court instructed the panel members to raise their
hands if the answer was “yes,” and anyone who answered in the
affirmative was called to the bench individually for further
questioning to determine whether he or she could be fair and
impartial despite that fact. Twenty-two of the court’s twenty-
nine questions were one-part inquiries.1
1
Other one-part questions included whether any panel members:
knew any of the trial lawyers or defendant West; were familiar with
the facts of the case; were familiar with the immediate area where the
offense took place; had opinions regarding defense attorneys or
prosecutors that would cause them to favor one side or the other; or
had any reason at all that would cause them to be unable to sit fairly
4
The court asked the remaining seven questions in two-part,
compound form. The first part of the question was again a fact
question, for example: Are or were you, or your close personal
friends or family members, employed by a law enforcement
agency? The second part of each question was: Would that fact
make you unable to be fair and impartial to both sides? The
judge told the prospective jurors that, regardless of their answer
to the first part (the fact question), they were not to raise their
hands or say anything unless their answer to the second part (the
unable to be fair and impartial question) was “yes.” Only then
would they be called to the bench for individual voir dire. There
were six other two-part questions, including a similar compound
inquiry regarding current or previous employment in criminal
defense.2
West’s counsel objected to the court’s use of compound
questions, arguing that it deprived him of “the opportunity to
ferret out possible bias.” Trial Tr. 57 (Sept. 29, 2004). The
prosecutor joined defense counsel’s objection, stating that she
“agree[d] that jurors should not be responsible for drawing their
own conclusions about what makes them fair and impartial.” Id.
at 58. The court rejected the lawyers’ objections, explaining that
and impartially. The court also asked whether any panel members, or
their close friends or family, had: had an experience that would cause
them to give greater or lesser weight to a police officer’s testimony;
been a victim of, a witness to, or charged with, an offense like that at
issue in the case; or, as a result of having been a victim of, a witness
to, or charged with a crime, could not be fair and impartial to both
sides.
2
The court also asked two-part questions about whether the panel
members: were acquainted with other panel members; were currently
studying or had previously studied law; had previously served as
jurors; had previously served as grand jurors; or were currently or
previously involved in crime prevention groups.
5
the court “place[d] a very high premium on these jurors abiding
by their oath,” that “[j]ury selection in this district as it is takes
hours,” and that “[i]f we attenuate this further, what now takes
. . . three hours to pick a jury will be six to seven hours.” Id. at
61-62. Selection of the jury concluded after approximately three
hours and the jurors, including two alternates, were sworn.
Before trial began the next day, defense counsel noted a
further objection for the record, stating that he had been forced
to use peremptory challenges on five potential jurors because he
“knew nothing about their level of potential bias.” Trial Tr. 9
(Sept. 30, 2004). Those five included an attorney with the
Federal Bureau of Investigation (FBI), an attorney with the
Department of Justice, a security officer, and two individuals
who did not list any employment on their juror questionnaires.
The government called Detective McNamara as its first
witness. Almost immediately after the detective began
testifying, a juror raised his hand and informed the court that he
knew the witness. The court excused the rest of the jury and
called the juror to the bench, where the juror informed the court
that he was an Amtrak conductor and had helped McNamara and
his drug interdiction team take passengers who were being
arrested off of trains. In response to questioning from the court,
the juror stated that, as a result of this experience, he did not
believe he could remain fair and impartial. The court excused
the juror and seated an alternate in his place. Detective
McNamara then continued his testimony.
McNamara’s trial testimony largely repeated his testimony
at the suppression hearing. During its course, McNamara
mentioned that a sergeant in the Drug Interdiction Unit -- Brian
Murphy -- was with him on the bus on the day of West’s arrest.
Sergeant Murphy (who was not otherwise involved in the case)
was not a trial witness; hence, his name, unlike McNamara’s,
6
had not been read to the jury pool. Before the second day of
trial began, a juror approached the court to say that she thought
she knew Sergeant Murphy. The juror said that Murphy had
once dated a friend of hers, but that she had not seen the
sergeant in three years. The juror stated that she had asked
another friend -- an MPD detective who had worked on
undercover narcotics cases with Murphy -- for confirmation that
the Sergeant Brian Murphy mentioned at trial was the same
Sergeant Brian Murphy she knew. In response to questioning by
the court about her relationship with the MPD detective, the
juror said that they were “[p]latonic friend[s],” that they had
been “tight for four or five years,” but that they had “grown
apart in the last year.” Trial Tr. 8 (Oct. 1, 2004). The court
asked the juror whether there was anything about her prior
interactions with Sergeant Murphy or with her detective friend
that would render her unable to be fair and impartial to both
sides in the case. The juror attested to her ability to remain fair
and impartial.
The defense moved to excuse this second juror for cause.
The court denied the motion, finding that the juror had said
nothing to indicate any bias, and that her relationships with
Sergeant Murphy and the detective were insufficient to warrant
a for-cause strike. Defense counsel again moved to excuse the
juror, arguing that the voir dire process had been flawed and that
seating the alternate would remedy the problem. Defense
counsel maintained that, had the court not used a compound
question, he would have known about the juror’s friendship with
an MPD detective and would have exercised a peremptory
challenge against her. The court rejected this argument, finding
it speculative that the juror would have regarded the detective,
from whom she had grown apart, as a “close personal friend” (as
called for by the first part of the compound question). Id. at 15-
16.
7
The trial concluded on the second day. West did not testify,
nor did he present any witnesses or evidence on his behalf. His
sole defense, offered during counsel’s closing argument, was
that he did not have constructive possession of the gun because
he did not intend to possess it at the time he was arrested. After
deliberating less than an hour, the jury returned a guilty verdict.
On this appeal, West challenges both the district court’s
method of conducting the voir dire and its denial of his motion
to suppress the gun. We consider the former in Part II and the
latter in Part III.
II
West’s objections to the voir dire are aimed at the district
court’s practice of asking certain questions using the two-part,
compound format described above. Although at oral argument
West contended that his objection extended to “the entire voir
dire process,” Oral Arg. Tape at 2:21, he conceded that his briefs
focused only on the possible law enforcement bias of potential
jurors arising from employment by a law enforcement agency or
close association with law enforcement officers, see id. at 5:49.
The only question he objected to on this score was the
compound question that asked the prospective jurors whether
they, or their close personal friends or family members, were
currently or previously employed by a law enforcement agency
-- but that precluded an affirmative response unless a
prospective juror believed that he or she “would be unable to be
fair and impartial to both sides . . . as a result of that
experience.” Trial Tr. 49 (Sept. 29, 2004). None of the panel
members raised their hands at the end of this two-part question.
West charges that, due to the way in which the court
structured this question, he never learned whether any of the
potential jurors, or their close friends or family, were currently
8
or previously employed by law enforcement. He contends that
this was error for two reasons: the court’s method denied him
sufficient information to challenge prospective jurors for cause,
and it impaired his ability to exercise his peremptory challenges
intelligently.
West’s critique parallels the Supreme Court’s explanation
that “[v]oir dire examination serves the dual purposes of
enabling the court to select an impartial jury and assisting
counsel in exercising peremptory challenges.” Mu’Min v.
Virginia, 500 U.S. 415, 431 (1991) (italics omitted); see
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). As
this court has recognized, “[w]ithout knowledge bearing on the
qualifications of the veniremen, neither function can be
performed intelligently.” United States v. Peterson, 483 F.2d
1222, 1226-27 (D.C. Cir. 1973). We consider West’s two
arguments below.
A
“Because the obligation to impanel an impartial jury lies in
the first instance with the trial judge, . . . . federal judges have
been accorded ample discretion in determining how best to
conduct the voir dire.” Rosales-Lopez, 451 U.S. at 189 (italics
omitted). That discretion extends to the “mode and manner of
proceeding,” as well as “to the range of questions put to the
prospective jurors.” United States v. Robinson, 475 F.2d 376,
380 (D.C. Cir. 1973); see United States v. Orenuga, 430 F.3d
1158, 1162 (D.C. Cir. 2005). The voir dire process is governed
by Federal Rule of Criminal Procedure 24(a), which leaves its
conduct largely up to the trial judge:
(1) In General. The court may examine prospective
jurors or may permit the attorneys for the parties to do
so.
9
(2) Court Examination. If the court examines the
jurors, it must permit the attorneys for the parties to:
(A) ask further questions that the court considers
proper; or (B) submit further questions that the court
may ask if it considers them proper.
FED. R. CRIM. P. 24(a) (emphasis added). As the Rule makes
clear, “federal trial judges are not required to ask every question
that counsel -- even all counsel -- believes is appropriate.”
United States v. Lawes, 292 F.3d 123, 128 (2d Cir. 2002).
Although the district court has broad discretion, “[t]he
exercise of this discretion, and the restriction upon inquiries at
the request of counsel, [remain] subject to the essential demands
of fairness.” Aldridge v. United States, 283 U.S. 308, 310
(1931); see Peterson, 483 F.2d at 1227; Robinson, 475 F.2d at
380. Defense counsel “always ‘must be given a full and fair
opportunity to expose bias or prejudice on the part of the
veniremen.’” Orenuga, 430 F.3d at 1163 (quoting Robinson,
475 F.2d at 380-81). As the Supreme Court has emphasized,
“[w]ithout an adequate voir dire the trial judge’s responsibility
to remove prospective jurors who will not be able impartially to
follow the court’s instructions and evaluate the evidence cannot
be fulfilled.” Rosales-Lopez, 451 U.S. at 188 (italics omitted);
see United States v. Edmond, 52 F.3d 1080, 1094 (D.C. Cir.
1995).
We have described the appropriate standard of appellate
review for challenges to a trial court’s voir dire many times.
Under that standard, “absent abuse of [the court’s] broad
discretion, and a showing that the rights of the accused have
been substantially prejudiced thereby, the trial judge’s rulings as
to the scope and content of voir dire will not be disturbed on
appeal.” Robinson, 475 F.2d at 380 (emphasis added); accord
Edmond, 52 F.3d at 1095; United States v. Washington, 705 F.2d
10
489, 495 (D.C. Cir. 1983); United States v. Caldwell, 543 F.2d
1333, 1345 (D.C. Cir. 1975); United States v. Liddy, 509 F.2d
428, 434-35 (D.C. Cir. 1974). For the following reasons, we
find that there was neither an abuse of discretion nor a showing
that the defendant’s rights were substantially prejudiced in this
case.
1. On the question of whether the district court abused its
discretion, we conclude that the voir dire did not leave the
defendant with insufficient information to enable him to
challenge for cause any juror who was biased against him.
First, West’s claim that he could not ascertain the panel
members’ own current ties to law enforcement is not entirely
accurate. The parties were given a list of the venire that
included the occupations of all but six of the potential jurors. Of
those six, four were over sixty-seven years old -- justifying the
district court’s inference that they likely were retired -- and the
remaining two were struck during the voir dire. See Trial Tr. 11,
20 (Sept. 30, 2004). West therefore had current employment
information for almost all of the potential jurors. And while it
is true that neither the list nor the employment question (because
of its compound structure) ensured that West would learn of
panel members’ (or their close friends’ or families’) previous
employment in law enforcement, West never requested the kind
of narrower question (for example, a question specifically about
employment with the MPD) that the court might have been
required to ask. See infra Part II.C.
Second, the voir dire provided West with additional
opportunities to learn of law enforcement experience, or law
enforcement bias, on the part of the panel. As noted in Part I,
the court asked a total of twenty-nine questions, twenty-two of
which were one-part questions that did not have the defect West
has identified. See supra note 1. Among those was the
11
question: “As a result of an experience that you either had
personally or a close family member . . . or a close personal
friend had[,] . . . would [you] be likely to give greater or lesser
weight to a police officer’s testimony just because they are a
police officer?” Trial Tr. 34 (Sept. 29, 2004). The court also
asked whether any member of the panel, or any panel member’s
close family or friend, had ever been “a victim of, a witness to,
charged with, [or] arrested for a similar type of offense as the
one charged in this case.” Id. at 69. Other open-ended, one-part
questions included whether any panel member knew the
prosecutor, the defense attorney, the defendant, or any of the
potential trial witnesses. And the court closed its questioning by
asking what it called the “kitchen sink” question, inviting
individual panel members to come forward if there was “any
reason that you can think of, even though we haven’t covered it
in a question, that you believe is a basis for your inability to sit
fairly, attentively, and impartially if selected as a juror.” Id. at
80. As we have previously said, this kind of general inquiry
about potential bias is important because it “call[s] upon each
prospective juror, on his oath, to respond if he [feels] that any
aspect of the case . . . might affect his impartiality.” Peterson,
483 F.2d at 1228. Thus, West was not denied an inquiry into the
subject of potential law enforcement bias.3
Third, and perhaps most important, the scope required of
appropriate voir dire necessarily depends on the facts and
circumstances of the particular case. Questions that probe a
potential juror’s views of the credibility of certain kinds of
witnesses, for example, are more important in some cases than
others. Here, as West’s counsel conceded at oral argument, the
3
Cf. Butler v. City of Camden, 352 F.3d 811, 816 (3d Cir. 2003)
(noting that the Third Circuit has “found error and reversed in cases
where the district court barred all inquiry into a relevant subject matter
designed to elicit a disqualifying prejudice”).
12
credibility of the police witnesses was not at issue at trial. See
Oral Arg. Tape at 8:27-:50. The defense did not dispute
Detective McNamara’s trial testimony that the bag at West’s
feet contained a loaded revolver, or that West said that the bag
was his and that he had packed it himself. West’s sole defense
was that he did not have constructive possession of the gun
because he did not intend to possess it. See Trial Tr. 83-87 (Oct.
1, 2004) (defense counsel’s closing argument). Compare United
States v. Gelb, 881 F.2d 1155, 1165 (2d Cir. 1989) (finding no
reversible error in the court’s failure to ask about potential law
enforcement bias when “the credibility of most of the official
witnesses was not subject to extensive challenge”), with Brown
v. United States, 338 F.2d 543, 545 (D.C. Cir. 1964) (vacating
a conviction where the prosecution’s case depended on the
credibility of its law enforcement witnesses and the court
refused to ask whether potential jurors would give greater
credence to the testimony of law enforcement officers).
Considering all of these factors together, we conclude that
the voir dire in this case met the “the essential demands of
fairness.” Aldridge, 283 U.S. at 310. The court’s questioning,
considered as a whole, provided the defendant with sufficient
information to enable him to challenge for cause any juror who
might be biased against him.
2. On the question of whether -- even if the district court
had abused its discretion -- West suffered substantial prejudice,
we note the following circumstances in addition to those
considered above.
First, the court asked numerous questions, of both the one-
and two-part variety, that required the potential jurors to swear
that they could be fair and impartial. Particularly important in
this regard was the one-part, “kitchen sink” question noted
above. In addition, at the conclusion of the case, the court
13
expressly instructed the jurors that “[i]n no event” were they to
give “either greater or lesser weight to the testimony of a
witness merely because he is . . . a police officer.” Trial Tr. 101
(Oct. 1, 2004). Given that West did not challenge the credibility
of the law enforcement witnesses, those questions and that
instruction served to mitigate any potential prejudice. Cf.
Peterson, 483 F.2d at 1228 (“perceiv[ing] no prejudice resultant
from the denial” of the defendant’s specific voir dire request
because, inter alia, the court instructed the jury against improper
inferences and “posed a general question that should have
elicited instances of bias, if any at all existed”).
Second, the government’s case against West can aptly be
described as overwhelming. As just noted, West did not dispute
any part of Detective McNamara’s testimony. His only defense
was that he did not intend to possess the gun. Since West did
not testify -- about his intent or any other topic -- there was little
if anything to this defense. See United States v. Victoria-
Peguero, 920 F.2d 77, 85 (1st Cir. 1990) (refusing to reverse a
defendant’s conviction, despite the district court’s error in not
inquiring about law enforcement bias, in part because “the
government’s case was very strong”).
Finally, and critically, West does not allege that any juror
who sat on his case was actually biased against him. See United
States v. Haldeman, 559 F.2d 31, 70-71 (D.C. Cir. 1976). Nor
can we presume that a juror’s “connections to law enforcement
. . . , standing alone,” are “suffic[ient] to establish implied bias.”
United States v. Morales, 185 F.3d 74, 84 (2d Cir. 1999).
Indeed, we have held that, “absent a specific showing of bias,
[even] a defendant accused of murdering a police officer is not
entitled to a jury free of policemen’s relatives.” Caldwell, 543
F.2d at 1347. The court removed the juror (the Amtrak
conductor) who said he knew Detective McNamara and could
not be impartial, and it individually questioned the juror who
14
came forward to say she knew Sergeant Murphy. As to this
second juror, the court concluded, after careful questioning, that
she could remain fair and impartial -- a finding that West does
not challenge on appeal.
In sum, considering the totality of the circumstances, we
conclude that, even if the court had erred in posing the law
enforcement employment question in compound form, there is
no “showing that the right[] of the accused” to an impartial jury
has “been substantially prejudiced thereby.” Robinson, 475 F.2d
at 380.4
B
West also argues that the district court’s voir dire impaired
his ability to exercise his peremptory challenges intelligently.
While “[t]he peremptory challenge is part of our common-law
heritage[,]” it is “not of federal constitutional dimension.”
United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000);
see Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Rather, in state
cases it is a “creature of statute,” Ross, 487 U.S. at 89, and in
federal cases a creature of Rule 24(b), which specifies the
number of peremptories to which each side is entitled, see FED.
R. CRIM. P. 24(b). Without defining the exact contours of the
4
See Victoria-Peguero, 920 F.2d at 84-85 (holding that whether
error in failing to ask a question about bias in favor of law
enforcement testimony requires reversal “hinges on such factors as the
importance of the government agent’s testimony to the case as a
whole; the extent to which the question concerning the venire person’s
attitude toward government agents is covered in other questions . . . ;
the extent to which the credibility of the government agent-witness is
put into issue; and the extent to which the testimony of the
government agent is corroborated by non-agent witnesses” (internal
quotation marks and citation omitted)).
15
right, we have held that there “‘must be sufficient information
elicited on voir dire to permit a defendant to intelligently
exercise . . . his peremptory challenges.’” Edmond, 52 F.3d at
1090 (quoting United States v. Barnes, 604 F.2d 121, 142 (2d
Cir. 1979)).
Although West points us to the Supreme Court’s suggestion
in Swain v. Alabama that “[t]he denial or impairment of the right
[to peremptory challenges] is reversible error without a showing
of prejudice,” 380 U.S. 202, 219 (1965), he fails to mention the
Court’s subsequent retreat from that suggestion. In United
States v. Martinez-Salazar, while finding it unnecessary to
decide “what the appropriate remedy for a substantial
impairment would be,” the Court sharply observed that this “oft-
quoted language in Swain was not only unnecessary to the
decision in that case[,] . . . but was founded on a series of our
early cases decided long before the adoption of harmless-error
review.” 528 U.S. at 317 n.4. We need not decide whether the
substantial impairment of a defendant’s right to peremptory
challenges requires automatic reversal, because we conclude that
West’s right was not substantially impaired. As we have
discussed above, West had adequate -- albeit imperfect --
information with which to exercise his peremptory challenges.5
5
In the interim between Swain and Martinez-Salazar, other
circuits held that the denial or impairment of a litigant’s right to
peremptory challenges required automatic reversal. In no case,
however, did a court hold that a litigant’s rights were substantially
impaired because of an inadequate voir dire. Cf., e.g., Carr v. Watts,
597 F.2d 830, 833 (2d Cir. 1979) (finding reversible impairment
where a judge’s practice of refusing to allow counsel to carry over
unused peremptory challenges prevented the litigant “from using his
remaining peremptory challenge which was his as a matter of statutory
right”); United States v. Ricks, 776 F.2d 455, 461 (4th Cir. 1985)
(finding reversible impairment where confusion about the order in
which jurors would be selected rendered the defendant’s peremptory
16
The examples that West cites in support of his impairment
argument do not establish impairment at all. The failure of the
first juror, the Amtrak conductor, to disclose his acquaintance
with Detective McNamara was not the consequence of the
district court’s mode of questioning. On the one hand, it is
unlikely that the conductor would have answered “yes” even if
the employment question had been asked in one part, since the
conductor was not employed by a law enforcement agency. On
the other hand, the conductor should have answered “yes” to a
one-part question that the district court did ask: whether any
member of the panel knew any of the prospective witnesses,
specifically including Detective McNamara.6
Nor has West shown that breaking the employment inquiry
into two separate questions would have elicited an affirmative
response from the second juror (the one with the friend who was
a detective). The first part of that question asked whether any of
the prospective jurors, or their close personal friends or family
members, were employed by a law enforcement agency. But
this juror testified that she had “grown apart” from her detective
friend, suggesting -- as the district court said -- that she did not
regard their current relationship as “close.” Trial Tr. 8, 15-16
(Oct. 1, 2004). Because West objected only to the compound
structure of the question, and not to its restriction to “close”
friends, there is little support for his claim that a different mode
of questioning would have given him more timely information
about that juror.
strikes “worthless because they were all exercised with respect to
veniremen who were not considered for selection as jurors”).
6
In light of his subsequent statement that he could not be fair and
impartial, the conductor also should have answered “yes” to the
court’s one-part “kitchen sink” question. Trial Tr. 80 (Sept. 29, 2004).
17
Finally, West notes in the introductory portion of his brief --
but not in the argument section -- that he “was forced to use
peremptory challenges on five jurors” who might otherwise have
been struck for cause, “because he did not have sufficient
knowledge to appropriately judge the level of their potential
bias.” Appellant’s Br. 12. According to their juror
questionnaires, one of the five was an FBI attorney, one was a
Department of Justice attorney, one was a security officer, and
two listed no employment at all. See Trial Tr. 9-20 (Sept. 30,
2004). No doubt the reason West does not argue this point is
that the Supreme Court has foreclosed it. See Martinez-Salazar,
528 U.S. at 307 (holding that “a defendant’s exercise of
peremptory challenges . . . is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove a
juror who should have been excused for cause”).
C
Although we affirm West’s conviction, our decision should
not be taken as endorsing the use of compound questions with
respect to subjects of substantial import in a particular case. The
district court’s discretion regarding voir dire is broad, but it is
not boundless. The problem with using compound questions, as
West correctly notes, is that it prevents the parties from learning
the factual premise of the first part of the question, relying
instead upon the juror’s self-assessment of his or her
impartiality. Yet, as we have cautioned in the past, “‘whether a
juror can render a verdict based solely on evidence adduced in
the courtroom should not be adjudged on that juror’s own
assessment of self-righteousness without something more.’”
Edmond, 52 F.3d at 1097 (quoting Silverthorne v. United States,
400 F.2d 627, 639 (9th Cir. 1968) (alteration omitted)).7
7
As Chief Justice Marshall said at the trial of Aaron Burr: “[A]
man . . . may declare that he feels no prejudice in the case; and yet the
18
This is not just a problem for the defense. Here, for
example, the district court treated both sides even-handedly.
Another compound question that it put to the venire was whether
they, or their close friends or family, were “involved in any way
in the defense of criminal cases.” Trial Tr. 49 (Sept. 29, 2004).
As with the law enforcement employment question, the court
told the potential jurors not to answer unless they could not be
“fair and impartial to both sides.” Id. It is thus unsurprising that
the prosecutor joined defense counsel in objecting to the use of
compound questions, stating that the government “agree[d] that
jurors should not be responsible for drawing their own
conclusions about what makes them fair and impartial,” id. at
58, and that this was “not a sufficient voir dire process to allow
the attorneys to exercise their peremptories with any information
about who we have in the pool,” Trial Tr. 24 (Sept. 30, 2004).
We do not suggest that the trial court must use one-part
questions on every subject, in every case. Whether and which
one-part questions are required depends upon the context.
Nonetheless, “[u]ndoubtedly there are occasions upon which
further questioning is needed to permit the trial court to make its
own judgment of a juror’s impartiality based on objective facts,
rather than relying exclusively on the jurors’ subjective
determinations of whether they [are] prejudiced.” Caldwell, 543
F.2d at 1345. As we have said several times, “‘[t]he possibility
of prejudice is real, and there is consequent need for a searching
voir dire examination, in situations where, for example, the case
carries racial overtones, or involves other matters concerning
which either the local community or the population at large is
commonly known to harbor strong feelings that may stop short
law cautiously incapacitates him from serving on the jury because it
suspects prejudice, because in general persons in a similar situation
would feel prejudice.” United States v. Burr, 25 F. Cas. 49, 50 (No.
14,692) (C.C. Va. 1807).
19
of presumptive bias in law yet significantly skew deliberations
in fact.’” Orenuga, 430 F.3d at 1163 (quoting Robinson, 475
F.2d at 381 (footnotes omitted)); see also Mu’Min, 500 U.S. at
424; Rosales-Lopez, 451 U.S. at 189. In addition, “voir dire
must be allowed on subjects with respect to which ‘bias and
distorting influence have become evident, through experience
with juries, and have come to be recognized as a proper subject
for the voir dire.’” Orenuga, 430 F.3d at 1163 (quoting
Robinson, 475 F.2d at 381 (italics omitted)). This circuit has
held that “[t]he potential for jurors to attach undue weight to the
testimony of law enforcement officials during trial is one such
example.” Orenuga, 430 F.3d at 1163 (citing Robinson, 475
F.2d at 381 (citing Brown, 338 F.2d at 544)).8
Another example is the problem of pretrial publicity, as to
which this circuit has expressly disapproved the kind of
compound questions asked in this case. In United States v.
Edmond, the district court did not ask prospective jurors whether
they had been exposed to pretrial publicity, but only whether
those who had been exposed could “render a fair and impartial
verdict.” 52 F.3d at 1096, 1097. We identified the defect in this
approach as follows:
This style of questioning hardly commends itself. The
trial judge’s inquiry failed to ask directly whether
prospective jurors had been exposed to pretrial
publicity; instead, the judge conflated that question
with the broader inquiry whether, notwithstanding their
presumed exposure to such publicity, they could render
a verdict based solely on the evidence adduced at trial.
8
In the instant case, the district court followed this precedent,
asking the potential jurors, in one-part form, whether they “would be
inclined to give greater or lesser weight to a police officer’s testimony
just because they are a police officer.” Trial Tr. 34 (Sept. 29, 2004).
20
Not only does such questioning confuse the two lines
of inquiry, but it allows jurors to assess their own
impartiality before the court even has determined the
extent of their exposure to the media. Indeed, this
latter flaw alone can rise to the level of reversible error
in cases where extreme pretrial publicity has inflamed
the local community against the defendants.
Id. at 1097. In the end, we did not reverse the defendants’
convictions, but only because we found that, “in the totality of
the circumstances,” the voir dire “was adequate to assure the
impaneling of a jury that could render a judgment based solely
on the evidence adduced at trial.” Id. at 1098-99. Those
circumstances included the fact that “the [d]istrict [c]ourt began
voir dire in th[e] case by asking prospective jurors to fill out
20-page questionnaires . . . [that] asked about [their] exposure to
various media, inquiring as to the newspapers and television
programs most regularly read and viewed by each juror.” Id. at
1096.9
Finally, and directly relevant here, in certain circumstances
a more searching voir dire may be required with respect to a
prospective juror’s employment. In United States v. Segal, for
example, the court vacated the defendants’ convictions for
9
See United States v. Beckner, 69 F.3d 1290, 1293-95 (5th Cir.
1995) (reversing a defendant’s conviction and remanding for a new
trial where the district court “did not ask jurors what information they
had read” about the case, but only whether “anyone had been so
affected by pretrial publicity that he or she could not be completely
fair and impartial”); Silverthorne, 400 F.2d at 638-39 (requiring a new
trial in a case of pervasive pretrial publicity because the “trial court
made no effort to ascertain what information the jurors had
accumulated,” but merely went “through the form of obtaining jurors
assurances of impartiality” (internal quotation marks and citation
omitted)).
21
bribing an Internal Revenue Service (IRS) agent, because the
district court had refused to ask whether any prospective jurors
or their immediate families worked for the IRS. See Segal, 534
F.2d 578, 581 (3d Cir. 1976), cited with approval in Butler v.
City of Camden, 352 F.3d 811, 816-17 (3d Cir. 2003). The
Third Circuit held:
[T]he defendants would reasonably need to know
whether any member of the panel or any person in his
family had ever been employed by the Internal
Revenue Service. The possibility of lingering loyalty
to the service, friendship of persons still employed
there, or knowledge of agency procedures are all
factors which counsel would weigh in deciding
whether to challenge. . . . [P]ast employment by the
specific agency prosecuting the case is a matter which
should be explored upon a party’s request. The refusal
to do so requires that a new trial be granted.
Segal, 534 F.2d at 581.10 The analogous one-part question here
would have been whether prospective jurors or their families
had ever been employed by the MPD, or worked in drug
interdiction. By contrast, the compound question that the court
did ask required even an MPD narcotics officer to remain silent
if he thought he could be fair and impartial. Had the defendant
requested, and the district court refused to ask, such a one-part
question, this would have been a much closer case. We need not
10
Cf. Lawes, 292 F.3d at 131 (finding no error because, although
the court refused to ask whether prospective jurors had relationships
or friendships with law enforcement officers, the questions that were
“asked would reveal whether the potential juror or a member of the
juror’s household was in law enforcement, the most compelling
circumstances with regard to the need for further inquiry”).
22
reach that issue, however, because West never sought such a
narrowed inquiry.
We are not unsympathetic to the desire of district courts to
control their crowded dockets. But, as the government
confirmed at oral argument, in this jurisdiction questions
regarding a prospective juror’s employment by law enforcement
agencies or criminal defense attorneys are typically asked as
one-part questions. See Oral Arg. Tape at 31:10.11 Such
questions do not unduly extend the duration of voir dire.
Certainly nothing prevents the court from requiring the parties
to prioritize their requests, narrowing the number and scope of
questions that they wish to have asked on a one-part basis.
We repeat that we find no error, reversible or otherwise, in
the district court’s conduct of voir dire. Nonetheless, we
reiterate the caution of Edmond that “our approval of the trial
court’s actions is inextricably linked to the particular
circumstances of this case.” 52 F.3d at 1099. “We caution trial
judges not to test the outer limits of their discretion” and, “[i]n
particular, . . . to avoid asking compound questions of
prospective jurors.” Id. As we said in Edmond, “[w]here a
defendant’s constitutional right to a fair trial is at stake, the
better practice is to err on the side of a voir dire that is simple,
direct, and thorough.” Id.
11
This also appears to be the case in other circuits. See, e.g.,
Lawes, 292 F.3d at 131 (noting that the district court’s questions
“reveal[ed] whether the potential juror or a member of the juror’s
household was in law enforcement”); United States v. Nash, 910 F.2d
749, 754 (11th Cir. 1990) (noting that the district court “asked the
veniremen whether they, their friends, or their family were employed
in law enforcement”).
23
III
West’s second challenge is to the district court’s denial of
his motion to suppress the gun found in his bag. “In reviewing
the denial of a motion to suppress, we examine the district
court’s legal conclusions de novo, but apply a clearly erroneous
standard to its underlying findings of fact.” United States v.
Pindell, 336 F.3d 1049, 1052 (D.C. Cir. 2003) (internal
quotation marks omitted). West’s suppression argument is two-
pronged: First, he argues that he was unlawfully seized when
Detective McNamara “began interrogating him,” which in turn
tainted the subsequent search of his bag. Appellant’s Br. 29.
Second, he argues that he did not voluntarily consent -- or
consent at all -- to that search.
The premise of West’s seizure claim is that, in the close
confines of the bus, he did not believe he could simply ignore
the detective’s questioning. As the Supreme Court has said,
however, the “fact that an encounter takes place on a bus does
not on its own transform standard police questioning of citizens
into an illegal seizure.” United States v. Drayton, 536 U.S. 194,
204 (2002). Rather, the “proper inquiry ‘is whether a reasonable
person would feel free to decline the officers’ requests or
otherwise terminate the encounter.’” Id. at 202 (quoting Florida
v. Bostick, 501 U.S. 429, 436 (1991)). The facts of this case are
virtually indistinguishable from those of Drayton, and
completely indistinguishable from those of United States v.
Lewis, 921 F.2d 1294 (D.C. Cir. 1990). In the latter, we held
that the questioning of a defendant on a bus did not constitute a
seizure where the officer wore plain clothes, spoke in a
conversational tone, did not display a weapon, and returned the
defendant’s ticket after examining it. See id. at 1296-99.
Indeed, it is a mark of the futility of West’s argument that a
principal case on which he relies, United States v. Cothran, 729
24
F. Supp. 153 (D.D.C. 1990), was overturned on appeal in Lewis,
921 F.2d at 1300.
We turn next “from the question whether [the defendant
was] seized to whether [he was] subjected to an unreasonable
search, i.e., whether [his] consent to the suspicionless search
was involuntary.” Drayton, 536 U.S. at 206. West testified that
he never gave McNamara permission to personally search the
bag at all. But McNamara testified that West did give him such
permission, and the district court’s “finding that this permission
was given, based on demeanor and credibility evidence, cannot
be said to be clearly erroneous.” United States v. Brady, 842
F.2d 1313, 1315 (D.C. Cir. 1988). With respect to the
voluntariness of that consent, in “circumstances such as these,
where the question of voluntariness pervades both the search
and seizure inquiries, the respective analyses turn on very
similar facts.” Drayton, 536 U.S. at 206. And just as the
Supreme Court said in Drayton: “[T]he facts above suggest
[that defendant’s] consent to the search of [his] luggage . . . .
was voluntary. Nothing [the detective] said indicated a
command to consent to the search.” Id. Rather, when West told
McNamara that the bag was his, the detective “asked for [his]
permission to check it[,] . . . indicating to a reasonable person
that he or she was free to refuse.” Id.
We therefore conclude that there was no Fourth
Amendment violation and that the evidence regarding the gun
was properly admitted at trial.
25
IV
Finding no error in the district court’s conduct of voir dire
or in its refusal to suppress evidence, we affirm the judgment of
conviction.
Affirmed.