                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            ___________

            No. 99-3291
            ___________

United States of America,               *
                                        *
                  Appellee,             *
                                        *
      v.                                *
                                        *
Don Lamar Love, also known as Pink,     *
                                        *
                  Appellant.            *
                                            Appeals from the United States
            __________                      District Court for the Western
                                            District of Missouri.
            No. 99-3384
            __________                           [PUBLISHED]

United States of America,             *
                                      *
                  Appellee,           *
                                      *
      v.                              *
                                      *
Dewayne D. Phillips, also known as    *
Boss,                                 *
                                      *
                  Appellant.          *
                                 ___________

                              Submitted: March 14, 2000

                                  Filed: June 15, 2000
                                   ___________
Before MORRIS SHEPPARD ARNOLD and FAGG, Circuit Judges, and BENNETT,*
      District Judge.
                          ___________

PER CURIAM.

       Don Lamar Love and Dewayne D. Phillips (collectively the appellants) appeal
their drug-related convictions and sentences. We affirm.

       The appellants raise several contentions related to their trial. We reject all of
their arguments. First, the record contains substantial evidence on which the jury
reasonably could have found Love guilty of conspiracy to distribute cocaine. Second,
having considered Phillips's allegations of trial error related to the district court's voir
dire about racial bias, the admission of drug evidence offered by the government, and
the jurors' review of trial exhibits during deliberations, we find no abuse of discretion
by the district court.

       The appellants also raise arguments about their sentences. We reject these
arguments as well. The district court's sentence-related factual findings about drug
quantities have ample support in the record and none are clearly erroneous. Because
the district court made no mistakes when imposing the appellants' sentences, we must
affirm the sentences.

      Having satisfied ourselves that the cases were well tried in the district court, that
no error of law or fact appears, and that the appellants' appeals simply involve the
application of settled principles of law to unique facts, we conclude the issues do not
warrant a comprehensive opinion. We thus affirm the appellants' convictions and
sentences without further discussion. See 8th Cir. R. 47B.


       *
       The Honorable Mark W. Bennett, Chief Judge, United States District Judge for
the Northern District of Iowa, sitting by designation.

                                            -2-
BENNETT, Chief District Judge, concurring in part and dissenting in part.

       No other issue in American history and contemporary life is more troubling, or
more elusive in its solution, than the issue of racial prejudice. This case reminds us that
racial prejudice is also a fundamental concern in our nation’s criminal justice system,
where justice must not only be “color blind” in some abstract sense, but must be color
blind and perceived to be so in its concrete application in each case. Cf. In re
Murchison, 349 U.S. 133, 136 (1955) (“To perform its high function in the best way
‘justice must satisfy the appearance of justice.’”) (citing and quoting Offutt v. United
States, 348 U.S. 11, 14 (1954)); see also Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(Harlan, J., dissenting) (“Our Constitution is color-blind. . . .”). In pursuit of this goal
in jury trials, voir dire is the most powerful engine available for ferreting out racial
prejudice, or the potential for racial prejudice, among potential trial jurors. Yet, upon
a request from a defendant, how probing of an inquiry must a trial judge make in voir
dire, or allow defense counsel to make, into the racial attitudes, beliefs, biases, or
prejudices of prospective jurors? That is the question raised in this case. Because I
believe that the trial judge’s well-meaning, but truncated inquiry into racial prejudice
during voir dire in this case did not create a reasonable assurance that racial prejudice
would be discovered, if present, I respectfully dissent from that part of the majority
decision affirming the conviction of defendant Dewayne D. Phillips.1

                                  I. BACKGROUND
       Some context for evaluating this critical question in this case is required.
Defendant Phillips was one of two African-American males convicted by an all-white
jury in southwest Missouri of multiple offenses related to crack cocaine. Before trial,
in an attempt to discover any racial prejudice among the prospective jurors, counsel for
the defendants propounded twenty-two questions for the district court to ask in voir


       1
       Although both defendants raised below the adequacy of the trial court’s voir
dire on racial prejudice, only defendant Phillips raised this issue on appeal.

                                            -3-
dire concerning the jurors’ attitudes toward African-Americans. The district court
declined to ask any of those questions. Instead, the court fashioned its own inquiry,
which consisted only of the following:

             You will have observed that the defendants in this case are
             African-Americans. I do not have to tell you, but for
             purposes of this question I will tell you, that race is not an
             issue in this case. It cannot be. It must never be an issue in
             deciding the guilt or innocence of a defendant.

             Is there anyone here who for whatever reason cannot follow
             that simple basic principle? (No response)

             I take it from your silence, then, that you are pledged to give
             these defendants a fair and impartial trial notwithstanding
             their ancestry. (No response)

Trial Transcript, 56.

                       II. ARGUMENTS OF THE PARTIES
       On appeal, Phillips argues that the district court’s voir dire was inadequate,
because it did not delve into the question of whether any juror possessed a possible
prejudice or bias against African-Americans. Accordingly, Phillips argues that the
district court abused its discretion by engaging in voir dire that was insufficient to
ensure that a fair and impartial jury was impaneled in this case. The government,
however, asserts that the district court’s voir dire was not an abuse of discretion. The
government contends that, because the district court made it clear that the jurors could
not make inferences of guilt or innocence based on the defendant’s race, and asked
whether the jurors could follow that instruction, Phillips was not deprived of a fair trial
in this case.




                                           -4-
                                 III. LEGAL ANALYSIS
                                A. The Cordova Decision
       The government argued, in its brief on appeal, that this court’s decision in United
States v. Cordova, 157 F.3d 587 (8th Cir. 1998), supported the conclusion that the
district court in this case did not abuse its discretion. First, the government contended
that, as in Cordova, the district court below made clear that it was improper for jurors
to draw an inference of guilt or innocence based on the defendants’ race and asked if
the jurors could follow that instruction. Joint Brief for Appellees, 25 (citing Cordova,
157 F.3d at 595). Second, the government asserted that Cordova supported the district
court’s rejection of the questions propounded by the defendants here, because those
questions would have failed to uncover any bias, while exaggerating the relevance of
the racial issue. Id.

        I readily acknowledge that the decision in Cordova involved a similar voir dire
technique, that is, a request by the district court for a “pledge” from the prospective
jurors that they would disregard any inference of guilt or innocence based on the
defendant’s race. See Cordova, 157 F.3d at 595. The decision in Cordova also does
require courts to “balance competing concerns” by “admonish[ing] against racial bias,”
but “not overemphasiz[ing] race,” id., a principle with which I again have no quibble.
However, as the government conceded at oral arguments, the appeal in Cordova was
premised on an issue not presented here: The question on appeal in Cordova was
whether the district court’s statement “suggested that being Hispanic created an
inference of guilt,” thus depriving the defendant of a fair trial, which this court rejected,
see id., while the question presented here is whether the district court’s statements
sufficiently probed the possible racial prejudices of the prospective jurors to ensure a
fair trial. In other words, the appeal here is premised on what the district court failed
to say, not on what the district court did say, and Cordova is not controlling. However,
I find guidance in other authority on the question of the adequacy of the district court’s
voir dire relating to racial prejudice in this case.


                                            -5-
                             B. The Purpose Of Voir Dire
       It is well to begin with a reminder of the purpose of voir dire. As Justice White
explained, announcing the judgment of the Supreme Court in Rosales-Lopez v. United
States, 451 U.S. 182 (1981), and writing for a plurality of the justices,

             Voir dire plays a critical function in assuring the criminal
             defendant that his Sixth Amendment right to an impartial
             jury will be honored. Without an adequate voir dire the trial
             judge’s responsibility to remove jurors who will not be able
             impartially to follow the court’s instructions and evaluate the
             evidence cannot be fulfilled. Similarly, lack of adequate
             voir dire impairs the defendant’s right to exercise
             peremptory challenges where provided by statute or rule, as
             it is in the federal courts.

Rosales-Lopez, 451 U.S. at 188. Accord Mu’Min v. Virginia, 500 U.S. 415, 431
(1991) (voir dire “serves the dual purpose of enabling the court to select an impartial
jury and assisting counsel in exercising peremptory challenges”); Harold v. D. Corwin,
M.D., 846 F.2d 1148, 1150 (8th Cir. 1988) (recognizing that the purpose of voir dire
is to afford the parties a trial by a qualified, unbiased, and impartial jury).

      The effect of voir dire upon a defendant’s ability to exercise peremptory
challenges should not be minimized, because the role of the peremptory challenge has
long been recognized “in reinforcing a defendant’s right to trial by an impartial jury.”
See United States v. Martinez-Salazar, ___ U.S. ___, 120 S. Ct. 774, 779 (2000); see
also Pointer v. United States, 151 U.S. 396, 408 (1894) (Mr. Justice Harlan, writing
for a unanimous Court, thought that the right to challenge was “one of the most
important rights secured to the accused” and that “[a]ny system for the impaneling of
a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that
right must be condemned.”); United States v. Sithithongtham, 192 F.3d 1119, 1121
(8th Cir. 1999) (“Although peremptory challenges are not a constitutional right, the
challenge has long been recognized as ‘one of the most important rights secured to the

                                           -6-
accused.’”) (quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)). Peremptory
challenges are necessary “not only to eliminate extremes of partiality on both sides, but
to assure the parties that the jurors before whom they try the case will decide on the
basis of the evidence placed before them, and not otherwise.” Pointer, 151 at 408.

                      C. Discretion And Standards Of Review
      Both as a matter of decisional law and procedural rule, “federal judges have been
accorded ample discretion in determining how best to conduct the voir dire.” Rosales-
Lopez, 451 U.S. at 189 (citing Aldridge v. United States, 283 U.S. 308, 310 (1931),
Ham v. South Carolina, 409 U.S. 524, 528 (1973), and FED. R. CRIM. P. 24(a)). For
example,
            Rule 24(a), Federal Rules of Criminal Procedure, provides
            that the trial court may decide to conduct the voir dire itself
            or may allow the parties to conduct it. If the court conducts
            it, the parties may “supplement the examination by such
            further inquiry as [the court] deems proper”; alternatively,
            the court may limit participation to the submission of
            additional questions, which the court must ask only “as it
            deems proper.”

Rosales-Lopez, 451 U.S. at 189.

       However, as Justice White also explained in Rosales-Lopez, voir dire relating
to racial prejudice, in a particular case, may be so inadequate as to constitute an abuse
of discretion, under either a “constitutional” or a “nonconstitutional” standard of
fairness. See Rosales-Lopez, 451 U.S. at 189-90; Sithithongtham, 192 F.3d at 1122
(the court’s discretion in the conduct of voir dire is subject to “the essential demands
of fairness.”) (internal quotation marks and citations omitted). The “constitutional”
standard for questioning prospective jurors about racial or ethnic bias is implicated by
“special circumstances,” described in Ristaino v. Ross, 424 U.S. 589 (1976), “under
which the Constitution requires a question on racial prejudice.” Rosales-Lopez, 451


                                          -7-
U.S. at 189. The “nonconstitutional standard,” on the other hand, stems from the
Supreme Court’s “supervisory authority over the federal courts,” and requires “that
questions directed to the discovery of racial prejudice be asked in certain circumstances
in which such an inquiry is not constitutionally mandated.” Id. at 190 (citing Ristaino,
424 U.S. at 597 n.9).

        1.     The “constitutional” standard
        The “special circumstances” under which the Constitution itself makes it
reversible error to fail to ask questions regarding racial prejudice of jurors are those in
which racial issues are “inextricably bound up with the conduct of the trial,” or the
defendant’s conduct or defense to the charges is “likely to intensify any prejudice that
individual members of the jury might harbor.” Ristaino, 424 U.S. at 597; see also
Rosales-Lopez, 451 U.S. at 189-90. In Ristaino, the Court distinguished its prior
decision in Ham v. South Carolina, 409 U.S. 524 (1973)—in which the Court
concluded that the Constitution required voir dire questions concerning racial
prejudice—from the case before the Court—in which the Court held that the
constitutional requirement was not implicated. Ristaino, 424 U.S. at 596-97. The
Court explained that, in Ham, the Court had held that the constitutional standard was
implicated, because of the black defendant’s assertion that he was framed for a crime
in retaliation for his widely-known civil rights activities. Id. In Ristaino, however, the
Court found that “[t]he mere fact that the victim of the crimes alleged was a white man
and the defendants were Negroes was less likely to distort the trial than were the
special factors involved in Ham.” Id. at 597. The Court in Ristaino held that “[t]he
circumstances thus did not suggest a significant likelihood that racial prejudice might
infect [the defendant’s] trial.” Id. at 598. Similarly, in Rosales-Lopez, the Court
concluded that there had been no “unconstitutional” abuse of discretion in failing to
conduct voir dire concerning racial prejudice, because the petitioner in that case had
never argued that the matters at issue in his trial involved allegations of racial or ethnic
prejudice. Rosales-Lopez, 451 U.S. at 192.


                                            -8-
        2.    The “nonconstitutional” standard
        In contrast, the “nonconstitutional standard,” under which the Court has also
decreed that it is reversible error for a trial court not to ask questions concerning jurors’
racial prejudices, involves conflicts in “the appearance of justice in the federal courts.”
Id. at 190. As Justice White explained,

              On the one hand, requiring an inquiry in every case is likely
              to create the impression “that justice in a court of law may
              turn upon the pigmentation of skin [or] the accident of
              birth.” Ristaino, supra, 424 U.S., at 596, n.8, 96 S. Ct., at
              1021, n.8. Trial judges are understandably hesitant to
              introduce such a suggestion into their courtrooms. See
              Aldridge, supra, 283 U.S., at 310, 51 S. Ct., at 471;
              Ristaino, supra, 424 U.S., at 591, 96 S. Ct., at 1018.
              Balanced against this, however, is the criminal defendant’s
              perception that avoiding the inquiry does not eliminate the
              problem, and that his trial is not the place in which to
              elevate appearance over reality.

Rosales-Lopez, 451 U.S. at 190-91; cf. Cordova, 157 F.3d at 595 (“In making this
inquiry [concerning racial bias], the court must balance competing concerns. The court
must admonish against racial bias, but must not overemphasize race.”).

      To resolve these competing interests, and thus to satisfy the “nonconstitutional”
standard of an appearance of fairness, a plurality of the justices in Rosales-Lopez
concluded as follows:

                     In our judgment, it is usually best to allow the
              defendant to resolve this conflict by making the
              determination of whether or not he would prefer to have the
              inquiry into racial or ethnic prejudice pursued. Failure to
              honor his request, however, will be reversible error only
              where the circumstances of the case indicate that there is a


                                            -9-
             reasonable possibility that racial or ethnic prejudice might
             have influenced the jury.

Rosales-Lopez, 451 U.S. at 191. Thus, the circumstances the plurality envisioned as
implicating this “nonconstitutional” standard involved (1) a defendant’s request for voir
dire concerning racial prejudice, (2) the district court’s determination of whether the
circumstances of the case indicate that there is a reasonable possibility that racial
prejudice might influence a jury, and if so (3) the district court’s inclusion in voir dire
of appropriate questions addressed to racial prejudice. Id. Furthermore, the conditions
implicating the “nonconstitutional” standard are distinguishable from those implicating
the “constitutional” standard on the basis of the degree of likelihood that racial
prejudice will infect the proceedings: To implicate the “constitutional” standard, the
circumstances must “suggest a significant likelihood that racial prejudice might infect
[the defendant’s] trial,” Ristaino, 424 U.S. at 598 (emphasis added), whereas to
implicate the “nonconstitutional” standard, “the circumstances of the case [must only]
indicate that there is a reasonable possibility that racial or ethnic prejudice might . . .
influenc[e] the jury.” Rosales-Lopez, 451 U.S. at 191 (emphasis added).

      Justice White endeavored to clarify the circumstances in which this “reasonable
possibility” of prejudice would exist:

             In Ristaino, the Court indicated that under the circumstances
             of that case, a federal trial court would have been required
             to “propound appropriate questions designed to identify
             racial prejudice if requested by the defendant.” 424 U.S., at
             597, n. 9, 96 S. Ct., at 1022, n. 9. In Ristaino, the Court
             also made clear that the result reached in Aldridge, was
             based on this Court’s supervisory power over the federal
             courts. 424 U.S., at 598, n. 10, 96 S. Ct., at 1022, n. 10. In
             Aldridge, which Ristaino embraced, the Court held that it
             was reversible error for a federal trial court to fail to inquire
             into racial prejudice in a case involving a black defendant
             accused of murdering a white policeman.                      The

                                           -10-
             circumstances of both cases indicated that there was a
             “reasonable possibility” that racial prejudice would
             influence the jury.

                    Aldridge and Ristaino together, fairly imply that
             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. This supervisory rule is based upon
             and consistent with the “reasonable possibility standard”
             articulated above. It remains an unfortunate fact in our
             society that violent crimes perpetrated against members of
             other racial or ethnic groups often raise such a possibility.
             There may be other circumstances that suggest the need for
             such an inquiry, but the decision as to whether the total
             circumstances suggest a reasonable possibility that racial or
             ethnic prejudice will affect the jury remains primarily with
             the trial court, subject to case-by-case review by the
             appellate courts.

Rosales-Lopez, 451 U.S. at 191-92. It was only on the last paragraph quoted above,
and indeed, on the first sentence of that paragraph, that the plurality opinion failed to
obtain a majority. See id. at 194-95 (Rehnquist, J., joined by Burger, C.J., concurring
in the result). The concurring justices “fear[ed] that [the paragraph’s] use of the term
‘violent crime’ and the term ‘different racial or ethnic groups’ is apt to spawn new
litigation over the meaning of those terms and whether the trial court properly assessed
the possibility of racial or ethnic prejudice infecting the selection of the jury.” Id. at
194. However, the concurring justices did not disagree with the proposition that
prejudice might occur in such cases, or in other circumstances, which would suggest
to the trial judge that an inquiry into the possibility of prejudice was required. Id.
Thus, reading the plurality and concurring opinions in Rosales-Lopez together, it is
clear that, under this “nonconstitutional standard,” “[f]ailure to honor [a defendant’s]
request [for voir dire concerning racial or ethnic prejudice] will be reversible error only
where the circumstances of the case indicate that there is a reasonable possibility that

                                           -11-
racial or ethnic prejudice might have influenced the jury.” Id. at 191 (plurality
opinion); see also id. at 194-95 (concurring opinion).

                      D. Is Either Standard Implicated Here?
      Which standard is implicated here, the “constitutional” or the
“nonconstitutional/appearance of justice” standard? The majority does not address that
question, concluding instead that there was no abuse of discretion in the trial court’s
truncated inquiry into racial prejudice, thereby suggesting that neither standard was
implicated, or if one was implicated, it was satisfied. I believe more is required.

        1.     The “constitutional” standard
        However, I must conclude that it is not the “constitutional” standard that is
implicated here. Phillips did not assert that he was being prosecuted in retaliation for
civil rights activities or otherwise suggest that issues in the trial involved allegations of
racial prejudice, nor are there any other “substantial indications of the likelihood of
racial or ethnic prejudice affecting the jurors” present in this case. See Rosales-Lopez,
451 U.S. at 190 & 192; Ristaino, 424 U.S. at 597; Ham, 409 U.S. at 527-28. Thus,
the “special circumstances” that would give rise to a constitutional requirement of an
inquiry into racial prejudice—circumstances in which either (1) racial issues are
“inextricably bound up with the conduct of the trial,” or (2) the defendant’s conduct or
defense to the charge is “likely to intensify any prejudice that individual members of
the jury might harbor”—are lacking in this case. Ristaino, 424 U.S. at 597; see also
Rosales-Lopez, 451 U.S. at 189-90.

       2.     The “nonconstitutional” standard
              a.     The “violent criminal act” factor
       Nor do I find that this case involved “a violent criminal act with a victim of a
different racial or ethnic group,” which would almost certainly have implicated the
“nonconstitutional” standard, as it would have “suggest[ed] a reasonable possibility
that racial or ethnic prejudice [would] affect the jury.” Rosales-Lopez, 451 U.S. at 192

                                            -12-
(plurality decision). As in Rosales-Lopez, the crimes with which defendants Love and
Phillips were charged were, at least legally, “victimless.” See id.

              b.      Presence of “external circumstances”
        Nevertheless, I find that I must examine whether this case still “falls within that
category of cases in which the trial court must determine if the external circumstances
of the case indicate a reasonable possibility that racial or ethnic prejudice will influence
the jury’s evaluation of the evidence.” See id. at 192-93. In my view, the
circumstances of this case clearly do indicate such a “reasonable possibility.”

       i. The defendants’ request for an inquiry. The defendants were concerned that
the issue of racial prejudice might be a factor in this case. Because the prospective
jurors’ attitudes towards African-Americans were unknown, the defendants desired to
learn more information. Accordingly, they submitted questions to the district court that
were designed to identify those jurors whose attitudes towards African-Americans were
either prejudicial or unfavorable. Thus, the defendants specifically requested voir dire
concerning racial prejudice, satisfying one requirement for application of the
“nonconstitutional” standard. See Rosales-Lopez, 451 U.S. at 191 (leaving to the
defendant, in the first instance, the determination of whether he or she “would prefer
to have the inquiry into racial or ethnic prejudice pursued”).

       ii. A “reasonable possibility” of racial prejudice. The question then becomes
whether the circumstances in this case presented a “reasonable possibility that racial
or ethnic prejudice might have influenced the jury,” and hence required sufficient voir
dire by the district court to probe the jurors’ possible racial prejudices or biases.
Rosales-Lopez, 451 U.S. at 191. That question is readily answered.

      Here, both defendants are African-American males. They were charged with
multiple offenses involving crack-cocaine in southwest Missouri. This court has
previously noted that defendants prosecuted for crack-cocaine offenses in the Western

                                           -13-
District of Missouri are predominantly African-American. See United States v.
Simmons, 964 F.2d 763, 767 (8th Cir.) (noting that 97% of defendants prosecuted for
crack offenses in the Western District of Missouri from 1988-1989 were African-
American), cert. denied, 506 U.S. 1011 (1992). During 1993, of those sentenced for
crack cocaine offenses nationwide, 88.3% were African-American, 7.1% Hispanic,
4.1% White, and 0.5% “Other.” UNITED STATES SENTENCING COMMISSION, SPECIAL
REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY, 2 (April
1997). Additionally, according to a report of the National Institute on Drug Abuse,
crack cocaine use is most common among young and middle-aged adults, males,
especially African-Americans, residents of metropolitan areas, those with less than a
high school education, and the unemployed. NATIONAL INSTITUTE ON DRUG ABUSE,
NATIONAL HOUSEHOLD SURVEY ON DRUG ABUSE: MAIN FINDINGS 1991, 60 (Table 4.6)
(May 1993). Thus, this case involved African-American defendants charged with drug
offenses commonly associated with African-American defendants.

      Moreover, the case involving these defendants and these charges was tried
before an all-white jury in a predominantly white area of Missouri.2 A simple fact that


      2
       Phillips submitted the following census data, which the government does not
dispute, concerning the small percentage of African-Americans in the Southern Division
of the Western District of Missouri:
             Cedar County:                  0% African-American
             Christian County:              0.2% African-American
             Dade County:                   0.1% African-American
             Dallas County:                 0.1% African-American
             Greene County:                 1.7% African-American
             Howell County:                 0% African-American
             Laclede County:                0.3% African-American
             Ozark County:                  0% African-American
             Pulaski County:                13.6% African-American
             Taney County:                  0.1% African-American
See Appellant Phillips’s Addendum, 13 (citing MISSOURI STATE CENSUS DATA

                                         -14-
cannot go unnoticed is that racial issues were present here, or in the very least, racial
issues were potentially present here. See Paul Butler, Racially Based Jury
Nullification: Black Power In The Criminal Justice System, 105 YALE L.J. 677, 686
(1995) (recognizing the reality that race does matter, in general, and in jury
adjudications of guilt and innocence, in particular); see also 2 NATIONAL JURY
PROJECT, INC., JURYWORK: SYSTEMATIC TECHNIQUES (Elissa Kraus & Beth Bonora
eds., 2d ed. 1997) (hereinafter “JURYWORK”) § 17.03[4] at 17-52 (“Jurors’ judgments
are influenced by the race of the participants in a trial. . . . Whenever criminal
defendants . . . are minority group members, attention must be directed to exploring
white prospective jurors’ racial beliefs and attitudes.”) & § 21.02 at 21-8 (“Race and
ethnicity permeate almost all aspects of a case.”). Indeed, this court has held that
“[f]ederal courts are required to inquire as to possible racial biases of veniremen when
the defendant is a member of a racial minority.” See United States v. Reddix, 106 F.3d
236, 238-39 (8th Cir. 1997) (emphasis added) (citing the post-Rosales-Lopez case of
Swink v. City of Pagedale, 810 F.2d 791, 793 (8th Cir.), cert. denied, 483 U.S. 1025
(1987), which in turn cites Aldridge, 283 U.S. 308, and Ham, 409 U.S. at 527).

       In these circumstances, “avoiding the inquiry [concerning racial prejudice] does
not eliminate the problem,” but would instead “elevate appearance over reality.”
Rosales-Lopez, 451 U.S. at 191. Thus, the “nonconstitutional” standard for voir dire
concerning racial prejudice was implicated in this case, and failure to pursue the
requested inquiry, at least to some degree, would constitute reversible error. See
Rosales-Lopez, 451 U.S. at 191.




CENTER, SELECTED 1990 CENSUS SOCIAL AND ECONOMIC INDICATOR BASIC TABLES
(University of Missouri at Columbia 1992)). Phillips explains that the comparatively
high percentage of African-Americans in Pulaski County is because a United States
Army base, Fort Leonard, is located there. Id. The government does not appear to
dispute that contention, either.

                                          -15-
                             E. Adequacy Of The Inquiry
       The government argues that, even assuming the “reasonable possibility” of racial
prejudice existed, the district court did make some inquiry concerning racial prejudice,
so that no reversible error occurred in this case. I acknowledge that the district court
made an inquiry of sorts into racial prejudice of jurors. Thus, the remaining issue is the
adequacy of the district court’s inquiry into racial prejudice.

       1.     The test
       As this court explained in Llach v. United States, 739 F.2d 1322 (8th Cir. 1984),
where an inquiry concerning racial prejudice is not constitutionally mandated, “the
reviewing court should consider the ‘effectiveness of the trial court in reasonably
assuring that the prejudice would be discovered if present.’” Llach, 739 F.2d at 1333
(quoting United States v. Groce, 682 F.2d 1359, 1362-63 (11th Cir. 1982), with
internal citations omitted). “If voir dire was conducted in such a manner [as] to
eliminate a reasonable possibility that racial or ethnic prejudice might influence the
jury’s evaluation of the evidence, then there is no reversible error.” Id. (citing Rosales-
Lopez, 451 U.S. at 192-93).

        The test of adequacy of voir dire concerning racial prejudice articulated in Llach
is comparable to the test used in this circuit—and indeed in the Third, Fourth, Fifth,
Seventh, Ninth, Tenth, and Eleventh Circuits—to determine whether a court has
adequately questioned prospective jurors regarding lack of impartiality generally. That
test is whether “the district court’s voir dire [has] created a reasonable assurance that
prejudice would be discovered if present.” United States v. Cassel, 668 F.2d 969, 971
(8th Cir.) (internal quotation marks omitted) (citing United States v. Delval, 600 F.2d
1098, 1102-03 (5th Cir. 1979)), cert. denied, 457 U.S. 1132 (1982); accord Waldorf
v. Shuta, 3 F.3d 705, 709 (3d Cir. 1993); United States v. Lancaster, 96 F.3d 734, 740
(4th Cir. 1996) (en banc), cert. denied, 519 U.S. 1120 (1997); United States v.
Beckner, 69 F.3d 1290, 1292 (5th Cir. 1995); United States v. Jones, 188 F.3d 773,
777 (7th Cir.), cert. denied sub nom. Bailey v. United States, ___ U.S. ___, 120 S. Ct.

                                           -16-
559 (1999); United States v. Washington, 819 F.2d 221, 224 (9th Cir. 1987); United
States v. Gillis, 942 F.2d 707, 709-10 (10th Cir. 1991); United States v. Schlei, 122
F.3d 944, 994 (11th Cir. 1997), cert. denied, 523 U.S. 1077 (1998); and compare
United States v. Desmarais, 531 F.2d 632, 633 (1st Cir. 1976) (considering whether
the district court’s voir dire “fulfilled [the court’s] ‘serious duty . . . [of determining]
the question of actual bias. . . .’”) (quoting Dennis v. United States, 339 U.S. 162, 168
(1950)); United States v. Garcia, 936 F.2d 648, 653 (2d Cir.) (also considering
whether the district court’s voir dire fulfilled “a ‘duty to determine the question of
actual bias,’” citing Dennis), cert. denied, 502 U.S. 986 (1991); United States v.
Tocco, 200 F.3d 401, 413 (6th Cir. 2000) (considering whether “the district court’s voir
dire sufficiently explored the prospective jurors’ . . . individual ability to be fair and
impartial”); United States v. Schmucker, 815 F.2d 413, 421 (6th Cir. 1987)
(considering whether “the district court made sufficient inquiry of the prospective jurors
to permit full disclosure of facts and circumstances which might indicate bias”); United
States v. Edmond, 52 F.3d 1080, 1089 (D.C. Cir.) (considering whether “the [court’s]
voir dire was adequate to assure the impaneling of an impartial jury in the
circumstances of th[e] case”), cert. denied, 516 U.S. 998 (1995).

       2.     Application of the test
       The government contends that the voir dire conducted by the district court in this
case was adequate. Specifically, the government asserts that the questions proposed
by the defense would have drastically exaggerated the relevance of the racial issue, and
that the district court’s more limited inquiry satisfied the sum and substance of the
legitimate questions posed by the defendants. Phillips argues, however, that, whether
the jurors harbored certain biases or prejudices against the two African-American
defendants was rendered unknowable based on the district court’s one and only inquiry.
Phillips argues that this is so, because the district court’s voir dire did not address,
much less touch upon, the content of the questions proposed by the defendants, and
thus never probed attitudes of individual jurors.


                                           -17-
       I cannot agree that the district court’s voir dire was in any way “‘effectiv[e] . . .
in reasonably assuring that the [racial] prejudice would be discovered if present.’”
Llach, 739 F.2d at 1333 (stating the test for adequacy of voir dire to detect racial
prejudice, quoting Groce, 682 F.2d at 1362-63); see also Cassel, 668 F.2d at 971
(stating that the test for adequacy of voir dire to detect juror bias, in general, is whether
“the district court’s voir dire [has] created a reasonable assurance that prejudice would
be discovered if present.”) (internal quotation marks omitted). Nor can I agree that the
district court’s voir dire in this case was “conducted in such a manner [as] to eliminate
a reasonable possibility that racial or ethnic prejudice might influence the jury’s
evaluation of the evidence.” Id. (citing Rosales-Lopez, 451 U.S. at 192-93). A brief
examination of the district court’s voir dire will demonstrate my reasons.

              a.     Discovery of racial prejudice
       Rather than beginning with a question designed to elicit responses that might
reveal the jurors’ true feelings on racial issues, the district court began voir dire with
an admonition of the panel as a whole against evaluating the case out of racial bias or
prejudice. The court followed this admonition with a single question, again directed
to the panel as a whole, asking if there was anyone who could not follow the
admonition. However, “[t]he group voir dire setting can impede honest statements of
opinion or bias.” 1 JURYWORK § 2.11[1] at 2-72.30. It is not surprising that the jurors,
confronted with a demand for a public response to a closed-ended, non-leading
question, following the district court’s admonition, provided only a socially acceptable
response. See 2 JURYWORK § 17.03[4] at 17-53. The district court then took the lack
of any negative response to its question as an affirmation or pledge that the jurors
would give the defendants a fair and impartial trial “notwithstanding their ancestry.”
Trial Transcript at 56. However, closed-ended questions, such as the one and only one
propounded by the district court, encourage jurors to deny their true feelings and
opinions about race, effectively ending the voir dire before it has begun. See 2
JURYWORK § 17.03[4] at 17-54. To put it another way, the district court’s inquiry
virtually foreclosed the defendants from ever discovering any prejudice or bias that the

                                            -18-
prospective jurors harbored against African-Americans, much less their individual,
unprompted attitudes towards African-Americans.

       What is required instead for an effective voir dire on racial prejudice is “[o]pen-
ended, non-leading questions [that] encourage respondents to explain their opinions and
attitudes in their own words, thus penetrating stereotyped and socially desirable
responses.” See 1 JURYWORK § 2.11[2] at 2-72.32. Accord Darbin v. Nourse, 664
F.2d 1109, 1113 (9th Cir. 1981) (observing that, because general inquiries often fail to
reveal relationships or interests of the jurors which may cause unconscious or
unacknowledged bias, a more probing inquiry is usually necessary). “Voir dire on
racial prejudice must be ventured because failure to thoroughly explore the range of
prospective jurors’ racial attitudes increases the likelihood of seating jurors whose
evaluation of the evidence will be seriously skewed by racial bias.” 2 JURYWORK
§ 17.03[4] at 17-52. For instance, during voir dire it is important to explore jurors’
contact with African-Americans;3 to explore how the prospective jurors have analyzed




      3
        A sample question on this topic proffered by the National Jury Project is the
following:
              Some people have many opportunities to meet people of a
              different race, other people don’t have much chance [to]
              meet people of other races[;] what has your experience
              been?
See 2 JURYWORK § 21.02 at 21-11. The National Jury Project also suggests inquiry
into the following matters:
              Does the juror live in the same neighborhood or work in the
              same place with members of the [racial or ethnic] group [of
              the defendant]? Do the juror’s children go to integrated
              schools? Has the juror ever had a negative experience with
              a person from the group?
Id.

                                          -19-
and processed their experiences with African-Americans;4 to explore the jurors’
assessments about how society has treated African-Americans in the past and in the
present;5 to explore the jurors’ feelings on stereotypes about African-Americans;6 and
the ability of the jurors to put themselves in the defendants’ place. Questions covering
these areas seek to “uncover a juror’s actual life experiences, opinions, and feelings
about race issues rather than the jurors’ conclusions about whether race ‘will affect
their ability to be fair and impartial.’” 2 JURYWORK § 21.02 at 21-12.

      4
         The National Jury Project suggests inquiry into the following matters in relation
to this topic:
               Did the juror try to understand the complexity of a particular
               situation involving interaction or even conflict between
               members of different [racial or ethnic] groups? What was
               the juror’s understanding of the source of the problem? Did
               the experience cause the juror to later avoid or seek out
               members of the particular group involved?
Id.
      5
         The National Jury Project suggests inquiry into the following matters in relation
to this topic:
               Does the juror think that discrimination is a thing of the
               past? Does the juror feel that anyone who claims
               discrimination is trying to cover up some personal
               inadequacy? Does the juror think it is even important to
               examine the conditions and circumstances faced by
               members of that group?
Id.
      6
        Sample questions on this topic proffered by the National Jury Project include
the following:
             Do you think that [members of a certain racial or ethnic
             group] are more likely to commit crimes than whites? Why?
             Why do you think it happens that more African Americans
             than whites are arrested, charged, and convicted for drug
             related crimes?
Id. § 17.03[4][a] at 17-57.

                                          -20-
        Many of the questions propounded by the defendants in this case would have fit
these requirements; indeed, many appear to be drawn from the list of suggested
questions on ways to explore racial attitudes of prospective jurors provided by the
National Jury Project. See 2 JURYWORK § 21.02 at 21-13–21-14.1. This court has
concluded that a district court does not abuse its discretion by rejecting specific
questions propounded by the parties and instead conducting its own voir dire if, inter
alia, the subjects covered by the requested questions were adequately addressed by the
questions actually put by the court. See United States v. Carter, 804 F.2d 487, 490
(8th Cir. 1986). I do not suggest that the district court should have asked the venire all
twenty-two questions proposed by the defendants. Nor do I think it is appropriate to
attempt to set forth a precise formula to which district courts must adhere. Again,
courts must “balance competing concerns” by “admonish[ing] against racial bias,” but
“not overemphasiz[ing] race.” Cordova, 157 F.3d at 595.

        However, the Supreme Court has made clear that the “nonconstitutional”
standard for voir dire on racial prejudice “does not depend upon a comparison of the
concrete costs and benefits that its application is likely to entail.” Rosales-Lopez, 451
U.S. at 190. The Court continued, “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.” Id. Some validation of the wisdom of rejecting a cost-benefit analysis
or fears that too much time or attention will be devoted to such an inquiry comes from
my own experience with jury selection in criminal cases involving minority defendants.
In virtually every case, following some more general questions, relatively few, open-
ended inquiries to individual panel members concerning racial prejudice or bias have
prompted an honest, thoughtful response from one or more jurors that the juror’s racial
bias or prejudice would prevent him or her from being fair and impartial. In such cases,
counsel for the United States and the defendants have unanimously agreed that the
jurors revealing such prejudices should be excused. In other situations, where the
potential juror’s answers have been equivocal, the answers to these inquiries have


                                          -21-
provided counsel with invaluable information for determining their peremptory
challenges.

      The district court’s single question in this case, particularly when presented to
the panel as a whole, in circumstances that required a public response, immediately
following an admonition that virtually required a particular answer, failed to approach
an inquiry that “adequately addressed” the sum and substance of the defendants’
requested questions. Carter, 804 F.2d at 490. Nor could such limited voir dire, in such
circumstances, possibly have been “‘effectiv[e] . . . in reasonably assuring that [racial]
prejudice would be discovered if present.’” Llach, 739 F.2d at 1333 (quoting Groce,
682 F.2d at 1362-63); Cassel, 668 F.2d at 971.

               b.     Elimination of racial prejudice
       Furthermore, although “the court was [not] obligated to ask all the [defendants’]
questions in the form submitted by defendants . . . their request raised a judicial duty
‘to do what was reasonably practicable to enable the accused to have the benefit of the
right of peremptory challenge or to prevent unfairness in the trial.’” United States v.
Dellinger, 472 F.2d 340, 370 (7th Cir. 1972). As mentioned above, one purpose of
voir dire is to permit the parties to exercise their peremptory challenges in an informed
and effective manner. Mu’Min, 500 U.S. at 431 (voir dire “serves the dual purpose of
enabling the court to select an impartial jury and assisting counsel in exercising
peremptory challenges”); Rosales-Lopez, 451 U.S. at 188 (“[L]ack of adequate voir
dire impairs the defendant’s right to exercise peremptory challenges where provided
by statute or rule, as it is in the federal courts.”); Harold, 846 F.2d at 1150 (recognizing
that the purpose of voir dire is to afford the parties a trial by a qualified, unbiased, and
impartial jury); see also Darbin, 664 F.2d at 1113 (in determining the adequacy of a
voir dire examination, consideration must be given to whether the questions submitted
by counsel are important to the informed exercise of counsel’s right to challenge
prospective jurors); Pitasi v. Stratton Corp., 968 F.2d 1558, 1563 (2d Cir. 1992)
(citing Darbin). Similarly, the Seventh Circuit Court of Appeals has explained that a

                                           -22-
“trial court should permit a reasonably extensive examination of prospective jurors so
that parties have a basis for an intelligent exercise of the right to challenge, whether for
cause or peremptorily,” and that court will reverse a trial court for abuse of discretion
“when limitations placed on the parameters of voir dire threaten to undermine the
purpose for conducting an examination of prospective jurors.” Art Press, Ltd. v.
Western Printing Machinery Co., 791 F.2d 616, 618 (7th Cir. 1986) (en banc); accord
Ham, 409 U.S. at 532 (Marshall, J., dissenting) (“Of course, the right to challenge has
little meaning if it is unaccompanied by the right to ask relevant questions on voir dire
upon which the challenge for cause can be predicated.”) (citing Swain, 380 U.S. at
221); 2 JURYWORK § 17.03[4] at 17-52 (“The primary goal of in-depth questioning on
racism and racial prejudice is to enhance [the] intelligent exercise of peremptory
challenges.”). The closed-ended inquiry here precluded the defendants from effectively
and intelligently exercising their peremptory challenges, when all they had to rely upon
was superficial assertions and pledges, thus making it difficult, if not impossible, for
the jury selection process “to eliminate a reasonable possibility that racial or ethnic
prejudice might influence the jury’s evaluation of the evidence.” Llach, 739 F.2d at
1333.

                                  IV. CONCLUSION
       I am sensitive to the significant burdens already placed on district court judges
and I have no desire to add to that burden by hand-cuffing them to a particular litany
of questions regarding potential racial prejudice in every jury trial in which a criminal
defendant is a member of a racial minority. I also respect the fact that district court
judges may, in their discretion, utilize a variety of effective ways to conduct voir dire
regarding potential racial prejudice of jurors that are suitable in light of the judge’s
experience and voir dire technique, the jury selection practices in the judge’s district,
the circumstances in that district, and the particular circumstances of the case.
However, I conclude that the district court’s voir dire in the circumstances of this case
was not sufficiently probing—in that it could not reasonably assure that racial prejudice
would be discovered, if present, see Llach, 739 F.2d at 1333; see also Cassel, 668 F.2d

                                           -23-
at 971, or in any way have eliminated such prejudice, see id.—and therefore constituted
a failure to conduct the necessary parts of the voir dire requested by the defendants, or
to address the sum and substance of their request, in circumstances that suggested a
reasonable possibility that racial or ethnic prejudice would affect the jury. See Rosales-
Lopez, 451 U.S. at 191. As such, the district court’s cursory voir dire constituted
reversible error under the “nonconstitutional” standard articulated in Rosales-Lopez,
which relies upon the Court’s “supervisory authority” and resolution of conflicts in the
“appearance of justice in the federal courts.” See id.

      Consequently, I would reverse the conviction of defendant Phillips, the only
defendant to raise this issue on appeal, and remand his case for a new trial. However,
I concur in the remainder of the judgment.

      A true copy.

             Attest:

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




                                          -24-
