                     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

      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
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 specifically about racial 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



                                           -2-
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,

                                           -3-
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.



                                           -4-
We therefore find no special circumstances of constitutional proportion at stake. Id.
at 190, 192.

       Consequently, we look to whether 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 also Llach, 739 F.2d


      2
        Llach 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.

                                           -5-
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 contravenes Apprendi 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),3 cert.
denied, 531 U.S. 1026 (2000).

       The conviction and sentence are affirmed.


       3
       We 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.").

                                            -6-
A true copy.

      Attest:

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




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