1The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-3907

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

James Borders, *

*

Appellant. *

___________

Submitted: September 11, 2001

Filed: November 1, 2001 

___________

Before MCMILLIAN, BEAM, and HANSEN, Circuit Judges.

___________

BEAM, Circuit Judge.

Defendant James Borders was convicted by a jury of conspiracy to distribute

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court1

sentenced him to life imprisonment under 21 U.S.C. § 841(b)(1)(A). On appeal,

Borders, who is a member of a racial minority, argues that the court abused its

discretion when it failed to voir dire the all-white venire as to possible racial bias,

thus violating his right to due process. He further contends that the court erred in
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failing to instruct the jury that drug quantity was an essential element of the offense.

Because we find his arguments to be without merit, we affirm.

In its Order Setting Forth Trial Procedures in Criminal Cases, the district court

outlined its procedure for jury selection. Prior to trial, although apparently not by the

date directed to do so, defense counsel proposed a voir dire question as to whether

any venire member would "in any way be affected in the judgment of this case based

upon the race, religion or nationality of any of the witnesses or Defendant in the

case." 

At voir dire, the court asked venire members various questions regarding

impartiality and biases generally, but not specificallyaboutracial or ethnic prejudices.

After the court had finished its inquiries and given both sides the opportunity to ask

follow-up questions, defense counsel asked that such inquiry be made, and indicated

that he thought one of the proposed questions he submitted prior to trial "may have

related to race." The court informed defense counsel that it did not recall that

question, that defense counsel had missed his opportunity to have the court ask such

general questions, and that it would not be fair to the government to make the inquiry

at that stage of voir dire. 

Borders has made no allegations of racial undercurrents or strife related to this

matter, nor of any conduct during trial that carried racial implications.

The indictment charged Borders with conspiracy to distribute more than fifty

grams of cocaine base. Although the district court did not instruct the jury that drug

quantity is an essential element of the offense, on the verdict form the court required

the jury to return a special finding in response to the question, "Do you, the jury,

unanimously find that the government has established beyond a reasonable doubt that

the amount of cocaine base involved in the offense charged in the Indictment was

fifty (50) grams or more?" The jury found that the essential elements of the offense
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had been proven beyond a reasonable doubt and responded affirmatively to the

question posed in the verdict form. 

Constitutional parameters govern the questioning of prospective jurors about

racial or ethnic bias. Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981)

(plurality). Still, a trial court's failure to inquire as to prospective jurors' ethnic or

racial prejudices is constitutionally infirm only if ethnic or racial issues are

inextricably intertwined with conduct of the trial, or if the circumstances in the case

suggest a significant likelihood that racial prejudice might infect the defendant's trial.

Llach v. United States, 739 F.2d 1322, 1332 (8th Cir. 1984). Only when there are

such "substantial indications of the likelihood of racial or ethnic prejudice affecting

the jurors in a particular case does the trial court's denial of a defendant's request to

examine the jurors' ability to deal impartially with this subject amount to an

unconstitutional abuse of discretion." Rosales-Lopez, 451 U.S. at 190;see also, e.g.,

Ham v. South Carolina, 409 U.S. 524, 527 (1973) (finding in drug case that the

Fourteenth Amendment required the judge to interrogate jurors upon the subject of

racial prejudice when the defendant had been known locally for his work in civil

rights activities, his basic defense was that law enforcement officers were out to get

him for his civil rights activities, and that prior to the trial judge's voir dire

examination of prospective jurors, defense counsel requested the judge to ask

questions relating to possible racial prejudices). 

However, in exercising its supervisory authority over the federal courts, the

Supreme Court requires that, in certain circumstances, questions fashioned to

discover potential jurors' racial prejudice be asked even if such inquiry is not

constitutionally mandated. Rosales-Lopez, 451 U.S. at 190. The Court has

determined that where substantial indications of prejudice are lacking–and

constitutional concerns are therefore not implicated–it is still best to allow defendants

to decide whether they want an inquiry into racial or ethnic prejudice in order to

avoid the appearance of injustice. Id. at 190-91. In this nonconstitutional context,
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failure to honor a defendant's request for such inquiry amounts to reversible error

where the circumstances of the case indicate there is a reasonable possibility that

racial or ethnic prejudice might have influenced the jury. Id. at 191. For instance,

"federal trial courts must make such an inquiry when requested by a defendant

accused of a violent crime and where the defendant and the victim are members of

different racial or ethnic groups." Id. at 192. Yet, the decision as to whether the total

circumstances suggest a reasonable possibility that racial or ethnic prejudice will

affect the jury lies primarily with trial courts, subject to appellate courts' case-by-case

review. Id.

In this supervisory context, inquiry into racial or ethnic prejudice is not

necessarily required where the defendant is charged with a non-violent, victimless

crime. Llach, 739 F.2d at 1333. But see Ham, 409 U.S. at 525-27 (finding the

Constitution required such inquiry in drug case where racial issues were at stake and

defendant had asked for inquiry). Even so, we still consider the trial court's efficacy

in reasonably ensuring that such prejudice would have been discovered had it been

present. Llach, 739 F.2d at 1333. If the trial court conducted voir dire so as to

eliminate a reasonable possibility that racial or ethnic prejudice might influence

jurors' evaluation of the evidence, there is no reversible error. Id. 

In this matter, the voir dire spawned no reversible error, constitutional or

otherwise. Borders has not argued that the government's case or his defense raised

issues related to racial or ethnic prejudice, or that trial conduct was intertwined with

such issues. Cf. Rosales-Lopez, 451 U.S. at 190, 192; Llach at 1332. He merely

submits a general claim that he was entitled to inquire into potential prejudices.

When defense counsel asked the district court to make this inquiry at voir dire, his

only concern was that Borders is black and the prospective jurors were white.

However, "[t]here is no constitutional presumption of juror bias for or against

members of any particular racial or ethnic groups." Rosales-Lopez, 451 U.S. at 190.
2Llach was a drug prosecution and this court referred to the charges as being

for a "victimless" crime. We assume the term was used to note that no victim of the

ravages of drug commerce was before the jury during the selection process.

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We therefore find no special circumstances of constitutional proportion at stake. Id.

at 190, 192. 

Consequently,we look towhether the external circumstances of this case raised

a reasonable possibility that racial or ethnic prejudice would influence the jury's

evaluation of the evidence. Id. at 192-93. As was the situation in Llach, Borders was

charged with a non-violent, victimless2 crime, and we find no risk of an appearance

of injustice. See 739 F.2d at 1332-33. We therefore look at measures the district

court took to reasonably ensure jurors' impartiality. Id. at 1333. Although not

specifically asking about racial or ethnic prejudices, the court asked jurors whether

there were any matters or experiences in their lives that would prevent them "from

being completely fair and impartial to both parties;" if there was anyone "who, for any

reason, whether or not [the district court] ask[ed] the question, would feel he or she

wouldn't want a person listening to his or her case with a feeling about this case that

[he or she] ha[d] at [that] time;" and whether there was anyone who could not decide

the case based upon the evidence they heard in the courtroom, "and only the evidence

they heard in the courtroom," and the law on which the court instructed them.

 We are somewhat uncertain as to why the district court refused to honor

Borders' request, or why to do so would have been unfair to the government. Cf.

Rosales-Lopez, 451 U.S. at 190 ("Determination of an appropriate nonconstitutional

standard for the federal courts does not depend upon a comparison of the concrete

costs and benefits that its application is likely to entail. These are likely to be slight:

some delay in the trial versus the occasional discovery of an unqualified juror who

would not otherwise be discovered."); Llach, 739 F.2d at 1333 (indicating "the better

practice wold have been to honor [the defendant's] request"); see alsoLlach, 739 F.2d
3We decline Borders' invitation to reconsider Aguayo-Delgado. United States

v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule

another.").

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at 1331 (cautioning the government that a prosecutor "'is the representative not of an

ordinary party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it shall win a case, but that justice shall

be done'") (citation omitted). Instead of resolutely adhering to its procedural

template, we think the court would have been prudent to specifically inquire into the

issue of prejudice, thus averting this issue for appeal. All the same, given its general

inquiries and the circumstances of the case, we cannot say that its refusal to honor

Borders' request created a reasonable possibility that the jury's decision might be

influenced by prejudice, or that the court abused its discretion in failing to do so.

Llach, 739 F.2d at 1333.

Next, we address Borders' claim that his sentence contravenesApprendi v. New

Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that any fact,

other than a prior conviction, that increases a penalty for a crime beyond the

prescribed statutory maximum must be charged and proven beyond a reasonable

doubt. 530 U.S. at 490. Here, the indictment alleged drug quantity, the jury made a

special finding of drug quantity beyond a reasonable doubt, and Borders' sentence is

within the range allowed by that finding. Borders therefore received the Fifth and

Sixth Amendment protections required by Apprendi. See United States v. Sheppard,

219 F.3d 766, 769 (8th Cir. 2000), cert. denied, 121 S. Ct. 1208 (2001); see also

United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.) (finding that

sentences within the statutorily authorized range do not violate Apprendi),3cert.

denied, 531 U.S. 1026 (2000). 

The conviction and sentence are affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.