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

i. 

## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 00-39 07

___________ United States of Americ a, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern

Distric t of Missour

i. Jame s Borders , * * Appellant

. *

___________ Submi tted: Sept embe r 11, 2001 Filed: No vembe r 1, 2001

___________ Before M CMILL IAN, BEAM, and HAN SEN, Circuit J udges.

___________ BEAM, Circuit Judge. Defendant James Borders w as convicte d by a jury of conspiracy t o distribute cocaine base, in v iolation of 21 U.S. C. §§ 84 1(a) (1) and 846. The district court 1 sentence d him to life im prisonm ent under 21 U.S. C. § 841(b) (1)(A) . On appe al, Borders, who is a mem

ber of a raci al minority , argues that the c ourt abused its discretio n when it failed to voir dire the all-white venire as to possible ra cial bias, thus violating his right

to due proc ess. He

further contends tha

t the court

erred in-2-

failing to instruct

the jury that drug quantity was an essential element of the offense. Bec aus e we fin d h is arg umen ts to be w it ho ut meri t, w e af fir m.
In its Orde r Setting Forth Tr ial Proc edures in C riminal Cases , the district court outlined its proced

ure for j ury se lection. Prior to t rial, a lthough appar

ently n ot by the date d ire cted to do so, defense counsel proposed a voir dire question as to whether any venire m embe r would "in any w ay be affecte d in the judgm ent of this case based upon the race , religi on or nationa lity of any of the witne sses or De fendant in the case." At voir dire, the court asked venire mem ber s various que stions rega rding impar tiality and biases generall

y, but not specif

ically about racial or e thnic prej udices. After the court had finished its inquirie s and given bo th sides theopportunity to ask follow-u p questions, defense counsel asked that such inquiry be made, and indicated that he thought one

of the propose d questions he submitted prior to trial " may

have related to race." The court inform ed 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 th e government to make the inquiry at that st age of voir dire.
Borders has made no allegations of racial undercurrents or strife relate d to this matter, nor of

any c onduct durin g trial tha t carrie d racial implic ations.

The indictm ent

charged B orders w ith conspiracy to di stribute more than fift y gra ms of cocaine base. Although the districtcourt did no t instruct t he jury that drug quantity is an essen

tial elem ent of theoffense, on the verdict form the court required the jury to return a special

finding in response to the que sti on, "Do yo u, th e jur y, unanim ously

find that the government has established beyond a reasonable doubt that the am ount of cocaine base involved in the offense charged in the Indictment was fifty (50) gram s or m ore?" The jury found that t

he essenti al elements of the offense-3-

had been prove

n b eyond a reasona

ble doubt and

responded a ffirmatively to the questio n posed i n the verdi ct form.
Constitutional param eters gove rn the questioning o f prospec tive jurors a bout racial or ethnic b ias. Rosales-Lopez v. United States , 451 U. S. 182, 1 89 (19 81) (plurality). Still, a

trial cour

t's failu re to inquir

e as to pros pecti ve jurors ' ethnic o r racial prejudi c es is c onstitutionally infirm only if ethnic or racial issues are inextrica bly intertw ined with c onduct of the trial, or if the circumstance s in the case suggest a significant likelihood that racial prejudice might i nfect the defendant 's trial. Llach v. Unit ed Stat es , 739 F.2d 1322, 1332 (8th Cir. 1984). Only when there ar e such "substantial indicatio ns of the likelihood of racial or ethnic prejudice affect ing the jurors in a partic ular case does the trial court's denial of a defendant's re quest to
exam ine the jurors' ability to deal im partially with this subject amount to an unconstitutional abuse of discretion." Rosales-Lopez , 451 U. S. at 190; see also, e. g. , Ham v. South C arolina , 409 U.S. 524, 527 (1973) ( finding in dr ug case tha

t the Fourteent h Ame ndment

required the judge to interrogate jur

ors upon the s ubject of racial prejudi ce when t

he defenda

nt had been known loca lly fo r his work in civil rights activities, his basic defense was that law enforcement officers were out to get him for his ci vil rights a ctivities, and that prio r to the trial judge's voir dire
exam ination

of pr ospective j urors, de fense coun sel reque sted the j udge to ask questio ns relatin g to poss ible racial prejudices)

. However, in exerci sing its super visory authority over the f

ederal co urts, the Sup reme Court req

uires that , in cer

tain circ umsta

nces, que stions fashi oned to discoverpotential j urors' racial pre judice be asked e ven if such

inquiry is not constitution ally

mandated. Rosale s-L opez , 451 U.S. at 190. The Court has determined

that wher

e substantia

l indicatio ns of prej udic e are lac king–and constitutional concerns are ther efore not impli cated–it i s still best

to allow de fendants to decide w

hether they wa

nt a n inquiry

in to racial

or ethnic p rejudic e in order to
a void the appeara nce of injus tice. Id. at 190-91. In this nonc onstitutiona l context ,-4-

failure to honor a de fendant' s request f or such inquiry am

ounts to revers i ble error where the circ umsta

nces of the

case indic ate there

is a reas onable po ssibilit y that racial or ethnic pre

judice might hav e influenc ed the jury. Id. at 191. For instance, "federal trial cour

ts must make such an inquiry w

he n requeste d by a de fendant
a ccusedof a violent crime and where the defendant and the victim are m em bers o f differe ntracial or eth nic group s." Id. at 192. Y et, the de cision as to whether the total circum stanc es suggest a reasonable possibility

that rac ial or ethn ic prej udice wil l affect the jury lies prim arily with trial courts, subject

to appella

te courts' c ase-by -case review. Id.

In this supervisory context, inquiry into racia

l or ethnic prejudi ce is not
necessar ily required where t he defenda

nt is charg ed with a non-violent , vi ct imles s crime. Llach , 739 F. 2d at 133 3. But see Ham , 409 U. S. at 525- 27 (finding t he Constitution

required such inquiry in drug case where racial issues were a t stake and defendant had asked f

or inquiry ). Eve n 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.2 d at 1333. I f the trial court con duc ted voir d ire so as t o elimi nate a reasona

ble possibili ty

that racial or ethnic prejudice might influence jurors' evalu ation of t he eviden ce, there is n o reversib le error. Id.

In this matter, t h e voir dire spawned no reversib le error , constitu tional or otherwise. Borders has not arg ued that the

governm ent's ca se or

his defens e raised issues related

to racial or ethnic prejudice, or that trial conduct was intertw ined with such issues. Cf. Rosales-Lopez , 451 U. S. at 190, 192; Llach at 1332. H e me rely
s ubm its a general claim

that he w as entitle d to inquireinto potentia l prejud ices. When defense c ounsel aske d the distri ct court t o make this inquiry

at voir dire, his only concern w as that Bor

ders is bla ck and the p rospectiv e juror s were white. H owever, " [t]her

e is no constitutional presump tion of ju ror bias f

or or against
mem bers of any

particular racial or ethnic groups." Rosales-Lopez , 451 U. S. at 190.2 Llach was a drug prosecuti on and this c ourt referred to the charges a s being for a "victimless" crim e. We assum e the term was used to note that

no victim

of the ravages o f drug com

merc e was bef

ore the j ury dur

ing the sele ction proce ss. -5- We therefore find no special circumstances of constitutional proporti on at stak e. Id. at 190, 19 2.

Conse que ntl y, we look to w hether the external circumstances of this case raised
a reasonable possibility that racial or ethnic prejudice would influence the jury 's evaluation

of the evid ence. Id. at 192-93. As was t he situatio n in Llach , Borders was charged with a non- violent, vi ctiml ess 2 crim e, and w e find no risk of

an appearance of injustice. See 739 F.2d a t 1332-33. We the refo re look at measures the district court took to re asonably ens ure jurors' imparti ality. Id. at 1333. A lthough not specific ally

asking about

racial o r ethnic prejudices, the court asked jurors whether there were any m

atters or experiences in their lives that would pre vent the m "fr om being completely f

air and impartial to both parties;" if there was anyone "who, for any reason, whether

or not [the

district c ourt] a sk[ed] the question , would f eel he or she wouldn't want a pe rson listen ing to his or h er case with a fe eling about this case that [he or she] ha[d] a

t [that] time ;" and whe ther there was any one who couldnot decide the case based upon the evidence th ey he ard in th e co urt roo m, "and only the evidence th ey he ard in th e co urt roo m," a nd th e la w on whi ch t he c ou rt i ns tru cte d t hem.

We are somewhat unc ertain as to why the distric t court re fused to hono r Borders' request, or why to do so wou ld have be en unfair t o the gov ernment. C f

. Rosales-Lopez , 451 U.S. at 190 ("Determ ination of an appropriate nonconstitutional standard for the f

ederal c ourts does no t depend upon a com parison of the concr ete costs and benef

its that its applicati on is likely to entail. These a

re likely to be slight:
so me delay

in the trial versus the occasiona l discover y of a n unqualifie d juror w

ho would not otherwis e be discovered.") ; Llach , 739 F.2d at 1333 (indicating "the better practice wold havebeen to honor [the def endant's] request") ; see also Llach , 739 F.2 d3 We decline B orders' invitation to reconsider Aguay o-Delga do

. United States v. Reyno lds , 116 F.3d 328, 329 (8th Cir. 1997) ( "One pane l may not overru le another."). -6- at1331 (cauti oning the gove rnme nt that a pr osecutor " 'is the representative not of an ordinary party to a controversy, but of a soverei gnty whose obligation to govern impar tially is as compelling as its obligation to gover n at all; a nd whose int erest, 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 pro cedura l template, we think th e court w ould have been prude ntto specifi cally inquire int o the issue of prej udice, th

us avertin g this issue f

or appeal . Allthe same, given its general inquiries and the circumstances of the case, w e cannot say that its re fusal t o honor Borders' request crea t ed a rea sonable poss ibility that the j ury' s decision m ight be influenced by pre

judice, or that the

court abused i ts discret

ion in failing to do so. Llach , 739 F.2 d at 1333.
Next, we address Borders' claim that his sentence contravenes Apprendi v. New Jersey , 530 U.S. 4 66 (2000). In Apprendi , the Supr eme Court held that any

fact, other than a prio r convicti on, that i ncrease s a penalty for a cr ime beyond the prescribed

statutory maxim um m ust be char

ged and pr oven bey ond a reas onable doubt. 530 U.S. at 490. H ere, the indictm ent

alleged dr

ug quantity , the jury made a special finding of d

rug quantity

beyond a reasona

ble doubt, a

nd Borders ' sentenc e is within the range

allowed b y that finding. B orders therefore receive d t he Fif th and Sixth Ame ndment

protectio ns require d by Apprendi

. See United States v. Sheppard , 219 F.3d 766, 769 (8th Cir . 200 0), cert. denied , 121 S. C t. 1208 (200 1); see also UnitedStates v. Aguay o-Delga do , 220 F.3d 926, 934 (8th Cir.) (finding that sentences within the statutorily authorized range do not violate Appr endi ), 3 cert. denied , 531 U.S. 1026 (2000).

The convic tion and sent ence are affirm ed.-7-

A tru e co py.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.