United States v. Barber ( 1996 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5065
NORWOOD W. BARBER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5115
LINDA K. BARBER,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-92-30024)
Argued: December 5, 1995
Decided: April 5, 1996
Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion of
the court, in which Chief Judge Wilkinson, and Judges Russell, Wid-
ener, Hall, Wilkins, Hamilton, Luttig, Williams joined. Judge
Murnaghan wrote a dissenting opinion, in which Judges Ervin,
Michael, and Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, P.C., Rich-
mond, Virginia, for Appellant Linda Barber; Thomas James Wil-
son, IV, WILSON & BOWERS, Harrisonburg, Virginia, for
Appellant Norwood Barber. Stephen Urban Baer, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF:
Robert P. Crouch, Jr., United States Attorney, Charlottesville, Vir-
ginia, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Norwood W. Barber and his wife, Linda K. Barber, were convicted
of laundering cash proceeds from the sale of marijuana, in violation
of 18 U.S.C. § 1956. On appeal they challenge mainly the district
court's rejection of their request that voir dire of prospective jurors
inquire into possible juror prejudice against interracial marriage. Nor-
wood Barber is black, and Linda Barber is white. They also challenge
an evidentiary ruling that allowed an expert witness to give his opin-
ion about how their activities constituted concealment for purposes of
money laundering and the sufficiency of the evidence to support their
convictions. For the reasons that follow, we affirm.
I
For years, Norwood Barber was a confessed marijuana dealer in
the Harrisonburg, Virginia, area. In conversations with Harrisonburg
police officers, he has mused that the only thing that he can do in life
is to sell marijuana. Linda Barber worked for the local chapter of the
Society for the Prevention of Cruelty to Animals.
2
Over a five-year period beginning in 1984, the Barbers opened five
joint accounts in various banks and, as often as two or three times a
week, deposited large amounts of cash into them, usually in small
bills. Typically, a few days later, they withdrew the cash in larger
bills. On one occasion, a bank teller asked Linda Barber whether she
wanted her withdrawal in the form of a cashier's check, and she
replied that she wanted it in large bills. On several occasions, the Bar-
bers made deposits and withdrawals at various banks on the same day.
A number of bank tellers became suspicious of the Barbers' banking
activity and reported their observations to law enforcement officials.
At various times, Norwood Barber misrepresented his employment
to bank officials and others, stating that he was self-employed in the
egg delivery or truck driving business. On their federal income tax
returns, however, the Barbers represented that Norwood Barber had
no income and was unemployed. When later questioned by law
enforcement officers about the source of the cash involved in their
banking activity, the Barbers stated that they had saved the money
over the past ten years under their bed.
The Barbers were indicted in one count for conspiracy to launder
drug proceeds and, in six counts, for laundering money from drug
sales in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and (2)(B)(i). A
jury convicted them on all counts, and the district court sentenced
Norwood Barber to 70 months imprisonment and Linda to 57 months.
This appeal followed.
II
We turn first to the Barbers' contention that the district court com-
mitted reversible error in rejecting their request to inquire during voir
dire into prospective jurors' prejudice against interracial marriage.
At the beginning of trial, counsel for the Barbers requested that the
trial court ask whether any member of the venire would prejudge the
defendants because they were partners in an interracial marriage. The
government objected to the request, arguing that posing such a ques-
tion to the venire would "bring in a race issue that really is irrelevant."
While asserting that an affirmative answer to his question would not
provide a basis for disqualifying a potential juror, Norwood Barber's
3
counsel stated that it would assist him in exercising his peremptory
challenges in an informed manner. He maintained that"race is already
injected by the fact that the defendants are sitting there as an interra-
cial couple." Linda Barber's counsel added, "The only reason I like
[the question] there is that it literally lets[the jury] know race is not
an issue, and we go ahead and we admit the obvious. It is see, look,
this is an interracial couple. We all agree race is not an issue." He
went on to conclude, "It clears the air. . . . I'd like to clear [the jurors']
subconscious and agree that it is not an issue, a non-issue."
The district court rejected the Barbers' proposed voir dire question,
explaining that it "simply injects race into this trial, and I do not want
to see that happen." Responding to the argument made by Linda Bar-
ber's counsel, the court stated, "If we want to clear the subconscious
in this venire, we will be in there for two weeks in voir dire."
The Barbers contend that the district court's ruling was legal error
which should be reviewed de novo. They maintain that they had "seri-
ous concerns and outright apprehension that there might be jurors on
the panel who had serious, if not, principled opposition to interracial
marriage." And they argue that "[t]he rights of the Barbers to direct
their concerns in the form of voir dire clearly should have overridden
the expressed concerns by the Court that such an inquiry would
``inject race' into the case."
While voir dire serves an important role in furthering the defen-
dant's Sixth Amendment right to trial by an impartial jury, its conduct
must be committed to the good judgment of the trial judge whose
"immediate perceptions" determine what questions are appropriate for
ferreting out relevant prejudices. Rosales-Lopez v. United States, 451
U.S. 182, 189 (1981) (plurality opinion). The trial judge is in the best
position to make judgments about the "impartiality and credibility" of
potential jurors based on the judge's "own evaluations of demeanor
evidence and of responses to questions." Id . at 188. For that reason
trial courts are given "broad discretion as to the questions to be
asked." Id. at 189 (quoting Aldridge v. United States, 283 U.S. 308,
310 (1931)); see also Fed. R. Crim. P. 24(a). Accordingly, we review
a district court's refusal to ask requested voir dire questions for abuse
of discretion. See United States v. Brooks, 957 F.2d 1138, 1144 (4th
Cir.), cert denied, 505 U.S. 1228 (1992).
4
We cannot ignore continuing incidents of racial prejudice that
infect the dispensation of justice. Racial prejudice is a persisting mal-
ady with deep and complicated historical roots. But every criminal
trial cannot be conducted as though race is an issue simply because
the trial participants are of different races. If racial prejudice is ever
to be eliminated, society's general concerns about such prejudice
must not be permitted to erode the courts' efforts to provide impartial
trials for the resolution of disputes. Because "[t]here is no constitu-
tional presumption of juror bias for or against members of any partic-
ular racial or ethnic groups," Rosales-Lopez , 451 U.S. at 190, the
courts must begin every trial with the idea of not focusing jurors'
attention on the participants' membership in those particular groups.
Particularly because we are a heterogenous society, courts should not
indulge in "the divisive assumption . . . that justice in a court of law
may turn upon the pigmentation of skin, the accident of birth, or the
choice of religion." Ristaino v. Ross, 424 U.S. 589, 596 n.8 (1976).
Moreover, to seek out generalized prejudices during the voir dire
would quickly divert the trial's focus from the guilt or innocence of
the defendant to peripheral factors, such as the defendant's race or
religious beliefs, which are usually irrelevant to the merits of the case.
The very process of exploring such factors would heighten their role
in the decisionmaking process and tend to subvert the court's express
admonition to jurors to convict or acquit only on the evidence before
them without partiality to any party.
Even though generalized prejudices should therefore not routinely
be made a subject of inquiry during voir dire, it is also clear that when
prejudice threatens the fairness of the process or the result, such an
inquiry is required to eliminate that prejudice. When racial issues are
"inextricably bound up with the conduct of the trial," the constitu-
tional guarantee of a trial by an impartial jury requires that a court not
refuse a request for voir dire directed to racial prejudice. Rosales-
Lopez, 451 U.S. at 189 (quoting Ristaino, 424 U.S. at 597). This cir-
cumstance may occur when race is an issue to be tried either as an
element of the offense or a defense or where racial issues are con-
nected with the resolution of relevant facts.
Even if racial issues are not "inextricably bound up with the con-
duct of the trial" -- the standard underpinning the constitutional man-
5
date -- a federal court may abuse its discretion in refusing to inquire
into racial prejudice if there is a "reasonable possibility" that racial
prejudice will influence the jury. Rosales-Lopez , 451 U.S. at 191.
Under this non-constitutional standard, courts should exercise their
discretion on a case-by-case basis, taking into account the totality of
the circumstances. Id. at 192. See, e.g., United States v. Okoronkwo,
46 F.3d 426, 433-35 (5th Cir.) (no error in refusing to question pro-
spective jurors about racial and national origin bias where Nigerian
participated in a conspiracy to file false income tax returns and defen-
dant was concerned that Nigerians had a reputation in Texas for
fraud), cert. denied, 116 S. Ct. 107 (1995); United States v. Kyles, 40
F.3d 519, 524-26 (2d Cir. 1994) (no error in refusing to question pro-
spective jurors about racial prejudice where black defendant commit-
ted armed robbery against whites because the level of violence was
insufficient to "ignite a jury's potential prejudices"), cert. denied, 115
S. Ct. 1419 (1995).
In sum, absent special circumstances of a constitutional dimension
-- where racial issues are "inextricably bound up with the conduct of
a trial" -- the conduct of voir dire is left to the trial court's broad dis-
cretion, and we may find an abuse of discretion in a federal court's
refusal to ask prospective jurors about racial prejudice only when (1)
such a request has been made and (2) there is a"reasonable possibil-
ity" that racial prejudice might influence the jury.
In the case before us, the charges against the Barbers did not
involve any element relating to race. Nor was the race of any partici-
pant an element of a legitimate defense. Moreover, the proof of facts
at trial did not introduce race as an issue in the case. All seven counts
of the indictment related to the financial question of whether defen-
dants laundered money. The record is replete with evidence concern-
ing the nature and complexity of the Barbers' financial transactions
at five different financial institutions and concerning whether, in car-
rying out those transactions, the Barbers laundered the proceeds of
drug sales in violation of 18 U.S.C. § 1956. The only reference to race
in the record is the Barbers' argument to the court during voir dire
that jurors could see that Norwood Barber is black and Linda Barber
is white. We cannot conclude solely on this basis that racial issues
were "inextricably bound up with the conduct of the trial."
6
While the record presents no indication that the constitutional guar-
antee of a fair trial required voir dire into racial prejudice in this case,
we must still determine whether the district court abused its discretion
under the non-constitutional standard. While the Barbers did make a
request for voir dire into racial prejudice, they failed to establish a
"reasonable possibility" that racial prejudice might influence the jury.
The only fact the Barbers relied on was that the jury could see them
sitting there as an interracial couple. While counsel for Linda Barber
agreed that "race [was] not an issue," he requested voir dire into racial
prejudice because it would "clear the air." The desire to "clear the
air," however, does not establish a "reasonable possibility" that racial
prejudice might influence the jury. The Supreme Court rejected simi-
lar arguments in Rosales-Lopez, holding that voir dire on racial preju-
dice was not required even though the defendant, a Mexican
American charged with illegally bringing Mexican aliens into the
country, cohabitated with the daughter of a white woman who served
as a government witness. 451 U.S. at 193-94.
The dissent observes that antimiscegenation laws, which were held
unconstitutional roughly 30 years ago, reflected a"prevalent social
view" that mixed-race marriages were wrong and notes that "deep-
seated sexual taboos . . . take time to dissipate." While acknowledging
that "without doubt attitudes have changed over time," the dissent
notes, "The fact remains, no matter how much we dislike it, that we
do not live in a color blind world." The dissent concludes, therefore,
that the district court committed reversible error by refusing to inquire
about prospective jurors' feelings about mixed-race marriages.
As unjust as our history of racial discrimination has been and as
serious as the problem of racial prejudice continues to be, we do not
believe that such problems are ameliorated by elevating jurors' views
about miscegenation into relevant issues in routine money laundering
cases, absent some particularized need. Just as"the raw fact of skin
color" is not relevant in determining "the objectivity or qualifications
of jurors," Powers v. Ohio, 499 U.S. 400, 410 (1991), skin color of
defendants is not an appropriate subject about which to inquire of pro-
spective jurors when the sole issue for the jury is whether defendants
are guilty of a financial crime.
To effectively ensure impartial juries and, indeed, equal protection
generally, courts must focus remedies on specific racial prejudice,
7
rather than on the effects of "past societal discrimination." See City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989). In Croson,
the Court cautioned that basing particularized remedies on "past soci-
etal discrimination" would "open the door to competing claims for
``remedial relief' for every disadvantaged group" and, thereby, under-
mine the very aspirations of the Equal Protection Clause. "The dream
of a Nation of equal citizens in a society where race is irrelevant . . .
would be lost in a mosaic of shifting preferences based on inherently
unmeasurable claims of past wrongs." Id. at 505-06; see also
Podberesky v. Kirwan, 38 F.3d 147, 155 (4th Cir. 1994), cert. denied,
115 S. Ct. 2001 (1995). Analogously, conducting voir dire based on
historical views about miscegenation in a case that does not present
racial issues unnecessarily risks introducing such issues and, more-
over, could open the door to voir dire demands relating to every soci-
etal prejudice. We decline to force courts down that road by requiring
them to conduct such voir dire.
Moreover, we believe that the district court soundly decided in this
case that voir dire questions about interracial marriage were inappro-
priate. The court expressed concern that to ask such questions would
"inject[ ] race into this trial" and explained that it did "not want to see
that happen." We agree with the court that a line of questioning about
interracial marriage would have created the greater risk of injustice,
or its appearance, by suggesting that even in a case where race is not
an issue, justice turns upon the "pigmentation of skin [or] the accident
of birth." Ristaino, 424 U.S. at 596 n.8.
Rather than highlight any one of many generalized prejudices that
people may hold, the district court in this case elected -- in the
absence of any suggestion that a particular prejudice was inextricably
bound up with the Barbers' case or posed a reasonable possibility of
harmful influence -- to avoid the risk of creating issues about those
prejudices by pursuing a more neutral approach. The first question
directed to the prospective jurors was whether they knew of any rea-
son why they could not "hear the facts of this case fairly and impar-
tially and render a just verdict." And the court asked in various
contexts throughout the voir dire whether the jury could "hear the
facts fairly and render a just verdict." Finally, the court asked the
entire venire toward the end of voir dire whether they were able to
render a verdict "solely on the evidence presented at this trial, testi-
8
mony from the witness stand, the exhibits and in the context of the
law as I will give it to you in my instructions, disregarding any other
ideas, notions or beliefs about the law that you may have encountered
in reaching your verdict." The jurors that were selected thus had
stated under oath that they could render a fair and impartial verdict,
based solely on the evidence.
In sum, we hold that the fact that the defendants in this money
laundering case were partners in an interracial marriage did not, by
itself, require the district court to grant their request to ask prospective
jurors during voir dire about their views on interracial marriage.
Moreover, we believe the district court better served the needs of jus-
tice in this instance by avoiding particularized inquiries into racial
prejudice to minimize the possibility that race would play a role in the
jury's decision. Accordingly, we cannot conclude that the court's
refusal to inquire on voir dire about interracial marriage amounted to
an unconstitutional abuse or other abuse of the court's discretion in
conducting voir dire.
III
We also conclude that the Barbers' remaining two assignments of
error are without merit. First, the Barbers contend that the district
court erred in allowing the government's expert witness to give opin-
ion testimony that the Barbers intended to conceal the source or
nature of the money involved in the subject financial transactions.
They argue that IRS Special Agent Donald Semesky's opinion testi-
mony on Norwood Barber's mental state was inadmissible under Fed-
eral Rule of Evidence 704(b).
Federal Rule of Evidence 704(b) provides in pertinent part:
No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did
not have the mental state or condition constituting an ele-
ment of the crime charged or of a defense thereto.
In interpreting this provision, courts have distinguished between
expert opinion testimony that describes the significance of a defen-
9
dant's actions to an illegal enterprise from opinion testimony that a
defendant had an actual thought or intent. See United States v.
Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 1992); United States v.
Gomez-Norena, 908 F.2d 497, 502 (9th Cir.), cert. denied, 498 U.S.
947 (1990); see also United States v. Posters N' Things, Ltd., 969
F.2d 652, 661 n.6 (8th Cir. 1992), aff'd, 114 S. Ct. 1747 (1994).
In this case, Agent Semesky explained how the Barbers' activities
constituted concealment for purposes of money laundering. He testi-
fied, for example, that by depositing cash into a bank account and
then withdrawing it, the proceeds of drug sales can be effectively con-
cealed at several levels. First, because the deposit slip does not show
the bills' denominations, it cannot later be determined that a large
number of small bills was deposited. Second, because bills used for
buying drugs often retain traces of drugs, the deposit eliminates the
possibility of linking the money to the drug trade. Third, depositing
drug money into an account that contains legitimate income "lends
credence or credibility to the [drug] money." And, finally, withdraw-
als of large bills facilitate physical concealment because one large bill
is easier to conceal than several small ones. Agent Semesky thus con-
cluded, "So, as you can see, there are a number of concealments
involved in just that simple series of transactions." When asked why
a drug dealer would represent that he is in the egg delivery business
to a bank teller filling out a cash transaction form, Agent Semesky
gave his opinion that such a misrepresentation would comfort the
bank by suggesting that the customer has a legitimate source of
income and would add "believability to deposits of some nature into
a bank account."
We find no indication in the record that Agent Semesky gave an
opinion on Norwood Barber's subjective intent in pursuing a particu-
lar activity. Rather, in each instance in which Semesky gave an opin-
ion, he testified that objectively established conduct constituted
concealment, an element of money laundering. Thus, we conclude
that the district court did not abuse its discretion in admitting Agency
Semesky's expert opinion testimony.
Finally, the Barbers contend that the evidence was insufficient to
support their convictions. In determining whether the verdict is ade-
quately supported by evidence, we do not engage in weighing the evi-
10
dence. Rather, we determine only whether substantial evidence, taken
in the light most favorable to the government, supports the verdict.
See Glasser v. United States, 315 U.S. 60, 80 (1942). Having
reviewed the record in this case in the light most favorable to the gov-
ernment, we conclude that there was ample evidence from which the
jury could have found, beyond a reasonable doubt, that the Barbers
committed the offenses for which they were indicted.
For the foregoing reasons, the judgments of the district court con-
victing the Barbers of conspiracy and money laundering are affirmed.
AFFIRMED
_________________________________________________________________
MURNAGHAN, Circuit Judge, dissenting:
The Barbers, defendant-appellants, are a married couple who live
in Virginia. Norwood Barber is black; Linda Barber is white. At voir
dire, they requested a question on jurors' attitudes about interracial
marriage. The district judge refused. The majority has found that the
refusal to ask a question on voir dire about attitudes toward marriage
between blacks and whites did not constitute reversible error. I dis-
agree, finding that there was a reasonable possibility that prejudice
may have influenced the jury against the Barbers as a miscegenous
couple.
I.
Up until 1967, the mere fact of the Barbers' marriage would have
subjected them to the possibility of criminal prosecution for a felony
and one to five years in jail. Loving v. Virginia, 388 U.S. 1, 4 (1967)
(citing prior Virginia Code).1 Antimiscegenation laws reflected a
_________________________________________________________________
1 Virginia was one of 16 states which prohibited and punished mar-
riages based on racial classifications. Loving , 388 U.S. at 6. Those states
were: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Loui-
siana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina,
Tennessee, Texas, Virginia, and West Virginia. In the 15 years preceding
11
prevalent social view that mixed-race marriages were immoral,
wrong, and violated the sanctity and purity of the white race. Those
laws and social views have roots that go back three centuries in
America and, in particular, in Virginia. See generally, Leon Higgin-
botham, Jr. and Barbara K. Kopytoff, Racial Purity and Interracial
Sex in the Law of Colonial and Antebellum Virginia, 77 Geo. L.J.
1967 (1989); Walter Wadlington, The Loving Case: Virginia's Anti-
miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189
(1966). As the sociologist Gunnar Myrdal wrote in 1944:
The ban on intermarriage has the highest place in the white
man's rank order of social segregation and discrimination.
Sexual segregation is the most pervasive form of segrega-
tion, and the concern about ``race purity' is, in a sense, basic.
No other way of crossing the color line is so attended by the
emotion commonly associated with violating a social taboo
as intermarriage and extra-marital relations between a Negro
man and a white woman. No excuse for other forms of
social segregation and discrimination is so potent as the one
that sociable relations on an equal basis between members
of the two races may possibly lead to intermarriage.
Gunnar Myrdal, An American Dilemma 606 (1944) (emphasis omit-
ted), quoted in, Higginbotham, supra, at 2025. Indeed, the taboo
against marriage between blacks and whites was so strong that
antimiscegenation statutes constituted the last major category of
legally enforced discrimination based solely on race. Wadlington,
supra, at 1211.
In 1927, the Virginia legislature passed "An Act to Preserve Racial
Integrity," which prohibited marriage between whites and blacks or
_________________________________________________________________
the Loving litigation, 14 additional states had repealed laws outlawing
interracial marriages: Arizona, California, Colorado, Idaho, Indiana,
Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South
Dakota, Utah, and Wyoming. Id. at n.5.
The Loving opinion and the Virginia antimiscegenation statute it
struck down as unconstitutional are nowhere mentioned or recognized by
the majority.
12
any other nonwhites as defined by statute. Loving, 388 U.S. at 6. The
1927 statute was one in a long line of legal prohibitions against inter-
racial sexual relations and marriage.2
The antimiscegenation laws and prohibitions were the legal mani-
festations of an often violently enforced taboo against sexual relations
between white women and black men.3 That taboo and its legal mani-
festations sought to preserve the racial purity of white women's chil-
dren and a rigid caste system in the South.4
Far from having abated, the social attitudes that led to and sup-
ported the antimiscegenation statutes continued to support antimisce-
genation laws in Virginia well into the latter half of the 20th century,
despite the demise of slavery. Higginbotham, supra, at 2021. That
sentiment is evident in the Virginia trial court opinion which con-
victed the Lovings, an interracial couple, of violating Virginia's
antimiscegenation statute in 1959:
Almighty God created the races white, black, yellow, malay
and red, and he placed them on separate continents. And but
for the interference with his arrangement there would be no
cause for such marriages. The fact that he separated the
races shows that he did not intend for the races to mix.
Loving, 388 U.S. at 3. That same sentiment is also evident in the Vir-
ginia Supreme Court of Appeals opinions which upheld challenges to
the constitutionality of Virginia's antimiscegenation statute in 1955
and in 1966.5 In 1955, the Virginia Supreme Court of Appeals looked
_________________________________________________________________
2 The first known Virginia statute punishing interracial sexual relations
was enacted in 1662. Act XII, 2 Laws of Va. 170, 170 (Hening 1823)
(enacted 1662), cited in, Higginbotham, supra, at 1993. As early as 1691,
Virginia had enacted a statute punishing interracial marriage. Act XVI,
3 Laws of Va. 86, 86-87 (Hening 1812) (enacted 1691), cited in, Higgin-
botham, supra, at 1995. The punishment in 1691 for marriage between
an English or white individual and a black, mulatto, or Indian was ban-
ishment and removal from Virginia forever. Id.
3 See, e.g., Higginbotham, supra, at 2008-09; Myrdal, supra, at 607.
4 Higginbotham, supra, at 2008, 2019.
5 The Virginia Supreme Court of Appeals was Virginia's highest court.
It is now called the Virginia Supreme Court.
13
to multiple other state courts which had upheld the constitutionality
of antimiscegenation laws to support the constitutionality of Virgin-
ia's statute. Declaring that those decisions were valid, it reasoned that
"the natural law which forbids the[ ] intermarriage [of blacks and
whites] and the social amalgamation which leads to a corruption of
races is as clearly divine as that which imparted to them different
natures." Naim v. Naim, 87 S.E.2d 749, 752 (Va.), vacated and
remanded, 350 U.S. 891 (1955), aff'd, 90 S.E.2d 849 (Va.), motion
to recall mandate denied and appeal dismissed, 350 U.S. 985 (1956).
The antimiscegenation laws in Virginia were constitutional according
to the Virginia court because they "preserve the racial integrity of
[Virginia's] citizens," prevent a "mongrel breed of citizens," and "pre-
vent the obliteration of racial pride." Id. at 756. In 1966, the Supreme
Court of Appeals of Virginia reaffirmed its earlier reasoning in Naim
when it denied an interracial couple's challenge to the constitutional-
ity of the Virginia antimiscegenation statute. Loving v. Common-
wealth, 147 S.E.2d 78 (Va. 1966), rev'd, 388 U.S. 1 (1967).
Not until 1967 did the Supreme Court address the constitutionality
of antimiscegenation laws.6 In Loving the Court ruled that Virginia's
antimiscegenation statute violated the Equal Protection and Due Pro-
cess Clauses of the Fourteenth Amendment to the United States Con-
stitution. Loving, 388 U.S. at 11-12. The fact, however, that nine men
on the Supreme Court struck down Virginia's antimiscegenation stat-
ute did not result in attitudes changing overnight in Virginia, a state
where for over 300 years there had been strong social, legal, and sex-
ual taboos against interracial marriage. The Virginia antimiscegena-
tion statute was on the books in 1967 because a popularly elected
legislature had not acted to repeal it.
_________________________________________________________________
6 A few months following its decision in Brown v. Board of Education,
347 U.S. 483 (1954), the Supreme Court denied certiorari to an appeal
challenging Alabama's antimiscegenation law. Jackson v. State, 72 So. 2d
114 (Al.Ct.App.), cert. denied, 72 So. 2d 116 (Al.), cert. denied, 348 U.S.
888 (1954). The Supreme Court also refused to rule on a challenge to
Virginia's antimiscegenation statute in 1955, by determining that the
record before it was incomplete with respect to the domicile of the par-
ties. Naim v. Naim, 87 S.E.2d 749 (Va.), vacated and remanded, 350
U.S. 891 (1955), aff'd, 90 S.E.2d 849 (Va.), motion to recall mandate
denied and appeal dismissed, 350 U.S. 985 (1956).
14
Without doubt attitudes have changed over time. However, deep-
seated sexual taboos of the sort at issue here take time to dissipate.
In 1968, the Gallup Poll Organization asked the public how it felt
about interracial intermarriage. At that time, 72% of Americans disap-
proved of interracial marriages.7 While attitudes have somewhat
changed since 1968, a significant percentage of the population still
holds negative attitudes about marriage between blacks and whites. In
1991, according to a Gallup Poll, 42% of Americans disapproved of
marriage between blacks and whites. In the South the percentage of
disapproval was shown to be 54%.8
The above polling data indicates that a significant portion of the
population continues to disapprove of the Barbers' decision to marry
one another. Their marriage violated social, sexual, and, until recently
legal, taboos deeply imbedded in American culture, particularly in the
South. The fact remains, no matter how much we dislike it, that we
_________________________________________________________________
7 George Gallup, Jr. and Dr. Frank Newport, For First Time, More
Americans Approve of Interracial Marriage than Disapprove, The Gallup
Poll Monthly, Aug. 1991, at 60-62.
8 Id. Gallup defines the South as including Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South Carolina, Tennessee,
Virginia, Arkansas, Louisiana, Oklahoma, and Texas.
The results of the Gallup Poll are based on telephone interviews of 990
adults, eighteen years of age and older, conducted June 13 through 16,
1991. A total of 303 interviews were completed with black individuals,
with the national random sample being supplemented by a sample tar-
geted toward areas known to have higher densities of blacks. Six hundred
and fifty interviews were conducted with whites, and 36 with individuals
who identified themselves as "other." The question posed to respondents
was "Do you approve or disapprove of marriage between blacks and
whites?"
The Gallup Poll organization reports that "[f]or results based on the
total sample of 990, one can say with 95 percent confidence that the
errors attributable to sampling and other random effects, could be plus
or minus 4 percentage points. For the black sample, the comparable fig-
ure is plus or minus 6 percentage points. In addition to sampling error,
question wording and practical difficulties in conducting surveys can
introduce error or bias into the findings of public opinion polls." Id. at
61.
15
do not live in a color blind world and that many individuals still har-
bor negative attitudes and feelings about marriage between blacks and
whites. To deny that fact is to ignore a social reality, a reality that
demonstrates something--namely attitudes toward marriage between
blacks and whites--which someone like the Barbers would need to
know when attempting to secure an unbiased and fair jury.
II.
Voir dire examination "plays a critical function in assuring the
criminal defendant that his Sixth Amendment right to an impartial
jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182,
188 (1981). The voir dire "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). The right of peremptory challenge has been recognized by the
Supreme Court as "one of the most important rights secured to the
accused." Swain v. Alabama, 380 U.S. 202, 218-19 (1965) (quoting
Pointer v. United States, 151 U.S. 396, 408 (1894)), overruled on
other grounds, Batson v. Kentucky, 476 U.S. 79 (1986). It is neces-
sary "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 other-
wise." Id.
Federal judges are given wide discretion in their handling of voir
dire. The federal constitution, however, requires that the jury be asked
about racial and ethnic bias in certain "special circumstances."
Ristaino v. Ross, 424 U.S. 589 (1976); Ham v. South Carolina, 409
U.S. 524 (1973). Those circumstances include, for example, instances
where racial issues are "inextricably bound up with the conduct of the
trial." Ristaino, 424 U.S. at 597.
Aside from the constitutional requirements, the Supreme Court
suggests in its exercise of supervisory power over federal courts that
an inquiry as to racial or ethnic prejudice is proper where requested
by the defendant. Rosales-Lopez, 451 U.S. at 191. Failure to honor a
defendant's request for a racial or ethnic question on voir dire, how-
ever, is only reversible error "where the circumstances of the case
16
indicate that there is a reasonable possibility that racial or ethnic prej-
udice might have influenced the jury." Id.
In Rosales-Lopez the Supreme Court found that there was no rea-
sonable possibility of ethnic prejudice and, therefore, approved the
district court's refusal to ask no more than a general question regard-
ing prejudice against aliens. The defendant was of Mexican-American
heritage and accused of participating in a scheme to bring illegal
aliens into the country. The defendant requested that the judge ask on
voir dire: "Would you consider the race or Mexican descent of Hum-
berto Rosales-Lopez in your evaluation of this case? How would it
effect you?" Id. at 185. The district judge refused to ask that question.
He did ask, however: "Do any of you have any feelings about the
alien problem at all?" and "Do any of you have any particular feelings
one way or the other about aliens or could you sit as a fair and impar-
tial juror if you are called upon to do so?" Id. at 186. The Supreme
Court held that the questions regarding attitudes about aliens coupled
with the general question on whether the jurors could sit as "fair and
impartial" sufficed to root out any possible prejudice against
Mexican-Americans as far as voir dire required. 9 "There [could] be no
doubt that the jurors would have understood a question about aliens
to at least include Mexican aliens." Id. at 193.10
_________________________________________________________________
9 In fact, the trial court excused two jurors for cause based on their
responses to its questions about attitudes toward aliens. Rosales-Lopez,
451 U.S. at 193.
10 The majority contends that in Rosales-Lopez the Supreme Court
rejected similar arguments to those made by the Barbers. 451 U.S. at
193. A white woman, whose daughter lived with Rosales-Lopez, was a
witness at trial. The Supreme Court in Rosales-Lopez, however, did not
address the necessity of a voir dire question about interracial or intereth-
nic marriage and sexual relations where both participants were codefen-
dants. First, the daughter of the white woman, who lived with Rosales-
Lopez, was not a codefendant. Second, no such question was requested
on behalf of Rosales-Lopez, nor were any arguments made as to the
cohabitation prejudice in the lower courts. Third, the Court's holding
addressed whether the testimony by the mother of the white woman
raised a reasonable possibility that the jury's determination was influ-
enced by prejudice. The Court held that her testimony had not created a
reasonable possibility of prejudice because it had been "substantially cor-
17
Prior to the Supreme Court's decision in Rosales-Lopez, we found
reversible error in this Circuit when the trial judge refused to ask a
question on racial or ethnic prejudice requested by a defendant who
was a member of a minority group. Rosales-Lopez , 451 U.S. at 187;
see, e.g., United States v. Gore, 435 F.3d 1110 (4th Cir. 1970).
Shortly after the Supreme Court handed down Rosales-Lopez, we had
the opportunity to apply the Supreme Court's reasoning in a case
where a black defendant appealed the district judge's failure to ask on
voir dire two requested questions regarding racial prejudice. United
States v. Brown, 767 F.2d 1078 (4th Cir. 1985). The first question
requested by the defendant asked about membership in discriminatory
organizations, such as the Ku Klux Klan, and the second asked about
objective and subjective feelings of racial prejudice. The trial judge
refused to ask those questions and instead made a general inquiry into
racial prejudice and bias including:
As you may observe, the defendant in this case--he is
seated at counsel table--is a member of the black race. If
any person has any feeling they would have any difficulty
in rendering a fair and impartial trial, giving due weight to
all of the evidence and testimony in the case, because the
defendant or a witness is a member of the black or white
race, then they should tell the Court at this time so that they
may be excused from service.
Id. at 1082. Applying Rosales-Lopez, we affirmed the district court's
refusal to ask more specific questions, changing our standard to hold
that where a defendant requests a voir dire question on racial preju-
dice if "sufficient questions are asked on voir dire to disclose possible
racial bias against the defendant, although asked in general terms,"
nothing more is required, "except where circumstances of the case
_________________________________________________________________
roborated by the other witnesses presented by the Government." Id.
Finally, cohabitation between a Mexican-American and a white does not
have the same history of deep-seated prejudice that marriage between a
black and a white has in this country. Thus, the holding in Rosales-Lopez
regarding the testimony of a white woman whose daughter lived with the
petitioner Rosales-Lopez is inapposite to the Barbers' circumstances.
18
indicate a reasonable possibility that racial prejudice may have influ-
enced the jury." Id. at 1081.11
Here, no general "proxy" question was given to ferret out any
potential bias against marriage between blacks and whites, despite
several external circumstances that strongly suggest a reasonable pos-
sibility for prejudice among the jury pool.12 Those facts, in brief, are
as follows. The Barbers are a married couple. Norwood Barber is
black and Linda Barber is white. As codefendants they sat at counsel
_________________________________________________________________
11 In other cases where there is a possibility of similar prejudice, but
which is not racial in character, it is an abuse of discretion not to ask a
question directed at that bias. For example, when a trial will turn on the
resolution of conflicting testimony between a police officer and a defen-
dant, we have recognized an inherent possibility of juror bias in favor of
the officer and, therefore, require the trial court to question the jurors on
whether they are more likely to believe a police officer than a witness.
Rainey v. Conerly, 973 F.2d 321, 325 (4th Cir. 1992); United States v.
Evans, 917 F.2d 800, 806-09 (4th Cir. 1990). But cf. United States v.
Lancaster, No. 95-5012 (4th Cir. March 20, 1996). To refuse to ask such
a question denies the defendant "the benefit of a voir dire that will pro-
vide essential information so as to allow the intelligent exercise of jury
challenges," whether for cause or peremptory. Rainey, 973 F.2d at 325
(quoting Evans, 917 F.2d at 809). But cf. Lancaster, No. 95-5012 (4th
Cir. March 20, 1996).
12 The district judge made no general or specific inquiry about racial
prejudice; he made only the following general inquiries:
Do you know of any reason why you cannot hear the facts of this
case fairly and impartially and render a just verdict?
If you are selected to sit on this jury, aside from those who have
indicated problems, will you be able to render a verdict solely on
the evidence presented at this trial, testimony from the witness
stand, the exhibits and in the context of the law as I will give it
to you in my instructions, disregarding any other ideas, notions
or beliefs about the law that you may have encountered in reach-
ing your verdict?
Now, having heard the questions put to you by the court, does
any other reason suggest itself to you as to why you could not
sit on this jury and render that fair and impartial verdict based
on the evidence presented in the context of the court's instruc-
tions to you on the law?
19
table and were, thus, visible to the entire jury. The Barbers lived and
were tried in a State that made their marriage a felony punished by
one to five years in jail until the Supreme Court held that it could no
longer do so in 1967. The Supreme Court's decision, however, did not
effect an immediate change in attitudes in Virginia where there is a
long and complex history of social, sexual, and legal taboos against
marriage between blacks and whites. Many individuals continue to
maintain residual prejudice from a bygone era. Polling demonstrates
a persevering prejudice left over from the social attitudes that sup-
ported antimiscegenation laws. The majority ignores those facts and
the actuality of substantial prejudice against marriage between blacks
and whites.13
The Supreme Court has held that where a defendant is accused of
a violent crime and where the defendant and the victim are members
of different racial or ethnic groups, a reasonable possibility of racial
prejudice exists. Rosales-Lopez, 451 U.S. at 192. Similarly, here,
where the Barbers as codefendants are participants in an interracial
marriage that violates deep-seated sexual, social, and until recently
legal, taboos, there is a reasonable possibility of prejudice against the
Barbers. I therefore feel that it was reversible error not to ask any sort
of "proxy" question on voir dire specifically aimed at uncovering
prejudice toward marriage between blacks and whites. The question
need not have been phrased precisely as the Barbers requested, but it
must have gone to the potential for prejudice against mixed-race mar-
riages.
In order "to perform its high function in the best way ``justice must
satisfy the appearance of justice.'" Swain , 380 U.S. at 219 (citing In
re Murchison, 349 U.S. 133, 136 (1955)). If a question about negative
_________________________________________________________________
13 The Barbers' situation is quite different from one where the only pos-
sibility of prejudice is suggested by the defendant being of a different
race or ethnicity than the juror. See, e.g., United States v. Brooks, 957
F.2d 1138 (4th Cir.), cert. denied, 505 U.S. 1228 (1992). It was not a
codified crime in Virginia in 1967 to be of a different race, i.e. a black.
The Barbers' requested question was directed principally at the interra-
cial aspect of their marriage. It was that aspect, rather than the fact that
one was black, which led them to request a voir dire question on attitudes
toward interracial marriage.
20
feelings or attitudes about miscegenous marriages had been asked and
answered in a manner demonstrating prejudice against marriage
between blacks and whites, the trial judge more than likely would
have excused the potential juror for cause. If he had not, the Barbers
would have had the opportunity to exercise a peremptory strike on
that juror. Not to ask that question and, therefore, to allow jurors who
potentially harbored bias against the Barbers to sit and judge them
created the risk of a biased jury and partial justice.
Understandably, trial judges are reluctant to make inquiries into
racial or ethnic bias in every case for fear of creating the impression
"that justice in a court of law may turn upon the pigmentation of skin
[or] the accident of birth." Rosales-Lopez, 451 U.S. at 190 (citing
Ristaino, 424 U.S. at 596 n.8.) "[A]voiding the inquiry," however,
"does not eliminate the problem, and . . . [the] trial is not the place
in which to elevate appearance over reality." Id. at 191. Ignoring the
reality of a reasonable possibility of prejudice against marriage
between blacks and whites results in the possibility of precisely the
appearance we seek to avoid--justice turning on the pigmentation of
skin--that of Linda and Norwood Barber--black and white.
Judge Ervin, Judge Michael, and Judge Motz join in this dissent.
21