United States v. Rasco

REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31054
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JIMMY LEE RASCO; MARCUS A MILTON
Defendants - Appellants
______________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
______________________________________________________
September 12, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
KING, Circuit Judge:
Jimmy Lee Rasco and Marcus Milton were convicted of
conspiracy to commit armed bank robbery, armed bank robbery, and
carrying and using a firearm during a crime of violence. Rasco
was also convicted of possession of a firearm by a convicted
felon and, because the armed robbery was his third “serious
violent felony,” sentenced to life imprisonment pursuant to 18
U.S.C. § 3559(c), the “three strikes” statute. Rasco challenges
his sentence on the grounds that the “three strikes” statute is
unconstitutional and inapplicable in this case. We hold that
§ 3559(c) does not violate either separation of powers or ex post
facto principles and that the district court properly applied §
3559(c) to Rasco in this case. We further hold that the district
court properly denied Rasco and Milton’s motions for judgment of
acquittal or, in the alternative, for a new trial. The judgment
of the district court is affirmed in all respects.
I. BACKGROUND
On July 6, 1995, two unidentified black males committed an
armed robbery of the Hibernia National Bank on Ellerbe Road in
Shreveport, Louisiana, taking approximately $7,300. The two men
fled the bank in a Chevrolet Suburban driven by a third black
male. Michael G. Moore, Sr. and his son, Michael G. Moore, Jr.,
were driving by the bank when the Suburban sped out of the bank
parking lot in front of their truck. Observing red smoke and
money coming out of the Suburban, the Moores followed the vehicle
and called 911 from their car telephone. They watched the three
men get out of the Suburban and into a Ford Mustang which was
later identified as belonging to defendant Jimmy Lee Rasco. The
Moores attempted to follow the Mustang but lost the trail. The
police found the Mustang abandoned in a wooded area and, shortly
thereafter, arrested Vincent West within the perimeter they had
established around the vehicle. The police questioned two
juveniles, Robert Taylor and Elton Kimble, who were nearby. The
youths reported that a black male had offered to buy a bicycle
from them with a $100 bill and provided a general description of
the man. Based on this description and the use of the Ford
2
Mustang, the police eventually arrested Rasco. Rasco denied any
involvement in the case.
A federal grand jury indicted Rasco and West for armed bank
robbery, use of a firearm during a crime of violence, and
possession of a firearm. On October 3, 1995, the government
filed a Notice and Information pursuant to 18 U.S.C. §3559(c),
commonly known as the “three strikes you’re out” provision, which
gave notice that Rasco had two prior “serious violent felony”
convictions and that he was subject to mandatory life
imprisonment if convicted of a third.
West pleaded guilty to the charges in the indictment and
agreed to cooperate with the government. On January 10, 1996,
the grand jury returned a superseding indictment that charged
Rasco and defendant Marcus A. Milton with conspiracy to commit
armed bank robbery in violation of 18 U.S.C. §§ 371, 2113(a),
2113(d); armed bank robbery in violation of 18 U.S.C. §§ 2,
2113(a), 2113(d); and carrying and using a firearm during a crime
of violence in violation of 18 U.S.C. §§ 2, 924(c). The
indictment also charged Rasco with possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 2, 922(g)(1),
924(e)(1).
The jury convicted Rasco and Milton on all counts. The
district court sentenced Rasco to life imprisonment and a
consecutive term of sixty months and ordered restitution in the
amount of $2436.16 to Hibernia National Bank. Milton was
sentenced to three consecutive five-year terms of imprisonment.
3
Defendants filed motions for judgment of acquittal or, in
the alternative, for a new trial. The district court denied
their motions. On appeal, Rasco argues that the “three strikes”
statute violates separation of powers and ex post facto
principles and that one of the two prior convictions relied upon
is not a “serious violent felony” and thus not a proper predicate
offense under § 3559(c). Rasco and Milton both contend that the
district court erred in denying their motions for judgment of
acquittal or a new trial, arguing that (1) the evidence was
insufficient to support their convictions, (2) the prosecutor
made improper comments during closing argument, and (3) mid-trial
publicity prejudiced the jury. In connection with his argument
concerning trial publicity, Rasco further contends that the
district court erred in denying his request for full attorney-
conducted voir dire. We conclude that each of these arguments is
without merit.
II. DISCUSSION
A. The “Three Strikes” Statute
Congress enacted the “three strikes” statute as part of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, 108 Stat. 1796. Codified as 18 U.S.C. § 3559(c),
this statute imposes mandatory life imprisonment on a person
convicted of a “serious violent felony” in a federal court if
(A) the person has been convicted (and those
convictions have become final) on separate prior
occasions in a court of the United States or of a State
of --
4
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and
one or more serious drug offenses; and
(B) each serious violent felony or serious drug
offense used as a basis for sentencing under this
subsection, other than the first, was committed after
the defendant’s conviction of the preceding serious
violent felony or serious drug offense.
18 U.S.C. § 3559(c). The statute defines “serious violent
felony” to include several enumerated offenses (including robbery
pursuant to § 2113) as well as
any other offense punishable by a maximum term of
imprisonment of 10 years or more that has as an element
the use, attempted use, or threatened use of physical
force against the person of another or that, by its
nature, involves a substantial risk that physical force
against the person of another may be used in the course
of committing the offense.
18 U.S.C. § 3559(c)(2)(F). We review the constitutionality of a
federal statute and the district court’s interpretation of a
statute de novo. See United States v. Bailey, 115 F.3d 1222,
1225 (5th Cir. 1997); United States v. Barlow, 41 F.3d 935, 942
(5th Cir. 1994), cert. denied, 514 U.S. 1030, and cert. denied,
514 U.S. 1087 (1995).
Rasco first argues that, by providing for mandatory life
imprisonment, § 3559(c) removes sentencing discretion from the
court and vests it with the prosecution in violation of the
doctrine of separation of powers. Rasco maintains that judicial
discretion in sentencing “is essential to preserve the
Constitutionally required fundamental fairness of the criminal
justice system.” Although the judiciary has exercised varying
degrees of discretion in sentencing throughout the history of
5
this country’s criminal justice system, it has done so subject to
congressional control. The Supreme Court has stated
unequivocally that “Congress has the power to define criminal
punishments without giving the courts any sentencing discretion.”
Chapman v. United States, 500 U.S. 453, 467 (1991). In affirming
the constitutionality of the federal sentencing guidelines and
the delegation of sentencing authority to the Sentencing
Commission, the Supreme Court recognized that “Congress, of
course, has the power to fix the sentence for a federal crime,
and the scope of judicial discretion with respect to a sentence
is subject to congressional control.” Mistretta v. United
States, 488 U.S. 361, 364 (1989) (citation omitted). The power
to fix sentences rests ultimately with the legislative, not the
judicial, branch of the government and thus the mandatory nature
of the punishment set forth in § 3559 does not violate the
doctrine of separation of powers. See United States v.
Washington, 109 F.3d 335, 338 (7th Cir. 1997) (holding that
§ 3559(c) does not offend principles of separation of powers),
petition for cert. filed (June 16, 1997) (No. 96-9415).
Rasco next contends that § 3559 violates the Ex Post Facto
Clause of the Constitution, which prohibits the imposition of “a
greater punishment, than the law annexed to the crime, when
committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798);
see also Weaver v. Graham, 450 U.S. 24, 28 (1981) (“The ex post
facto prohibition forbids the Congress and the States to enact
any law ‘which imposes a punishment for an act which was not
6
punishable at the time it was committed; or imposes additional
punishment to that then prescribed.’” (quoting Cummings v.
Missouri, 4 U.S. (4 Wall.) 277, 325-26 (1867))(footnote
omitted)).
The Supreme Court has held that recidivist statutes not
unlike that at issue here do not violate the Ex Post Facto
Clause. See Gryger v. Burke, 334 U.S. 728, 732 (1948) (“The
sentence as a fourth offender or habitual criminal is not to be
viewed as either a new jeopardy or additional penalty for the
earlier crimes. It is a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because a
repetitive one.”). This circuit has likewise rejected ex post
facto challenges to recidivist statutes. See United States v.
Saenz-Forero, 27 F.3d 1016 (5th Cir. 1994) (holding that use of a
1985 drug conviction to enhance defendant’s sentence did not
violate the Ex Post Facto Clause even though the drug conviction
was not classified as an “aggravated felony” for enhancement
purposes until 1988); Perkins v. Cabana,(upholding a Mississippi
recidivist statute against an ex post facto challenge). With
respect to § 3559(c) in particular, the Seventh and Eighth
Circuits have considered and rejected ex post facto challenges
similar to the one presented here. See Washington, 109 F.3d at
338; United States v. Farmer, 73 F.3d 836, 840-41 (8th Cir.),
cert. denied, 116 S. Ct. 2570 (1996). We join those circuits in
7
holding that § 3559(c) does not violate the Ex Post Facto
Clause.1
Rasco argues that even if § 3559(c) is constitutional, it
does not apply in this case because his prior conviction for
aggravated battery under Louisiana state law is not a “serious
violent felony” within the meaning of the statute. As indicated
above, § 3559(c) defines “serious violent felony” to include an
“offense punishable by a maximum term of imprisonment of 10 years
or more that has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
Rasco contends that aggravated battery is not a “serious” violent
felony because it is classified as a “relative felony” rather
than an “absolute felony” under Louisiana law. Rasco further
contends that aggravated battery is not a “serious violent
felony” because the maximum sentence for the offense is “not more
than ten years.”
The Louisiana Criminal Code defines “felony” as “any crime
for which an offender may be sentenced to death or imprisonment
at hard labor.” LA. REV. STAT. ANN. § 14:2(4) (West 1986). The
code does not distinguish between “absolute” and “relative”
1
Rasco’s reliance on Miller v. Florida, 482 U.S. 423
(1987), is inapposite. In Miller, the Supreme Court invalidated
on ex post facto grounds the application of revised state
sentencing guidelines to a defendant whose crime had occurred
four days prior to the effective date of the revised guidelines.
In other words, the legislature had effectively increased the
punishment for the offense after it was committed. Here, in
contrast, the “three strikes” provision under which Rasco was
sentenced became effective prior to the date on which he
committed the offense for which he was sentenced.
8
felonies. Aggravated battery is defined as “a battery committed
with a dangerous weapon,” and is punishable by imprisonment with
or without hard labor for “not more than 10 years.” LA. REV.
STAT. ANN. § 14:34 (West 1986). Aggravated battery thus is a
felony under Louisiana law and “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” as required by § 3559(c). Further, the
offense may be punished by ten years in prison, and thus is an
“offense punishable by a maximum term of imprisonment of 10 years
or more.” 18 U.S.C. § 3559(c)(2)(F)(ii) (emphasis added). We
conclude that aggravated battery under Louisiana state law is a
“serious violent felony” as defined in § 3559(c)(2)(F)(ii) and
that Rasco’s conviction is therefore a proper predicate offense
for sentencing pursuant to § 3559(c)(1).
B. Motions for Judgment of Acquittal or New Trial
1. Sufficiency and weight of the evidence
Rasco and Milton argue that the district court should have
granted their motions for judgment of acquittal pursuant to Rule
29 of the Federal Rules of Criminal Procedure based on
insufficiency of the evidence.2 They argue in the alternative
2
Rule 29 provides, in relevant part:
The court on motion of a defendant or of its own motion
shall order the entry of judgment of acquittal of one
or more offenses charged in the indictment or
information after the evidence on either side is closed
if the evidence is insufficient to sustain a conviction
of such offense or offenses.
9
that the district court should have granted their motions for a
new trial pursuant to Rule 33 of the Federal Rules of Criminal
Procedure because the verdict was against the weight of the
evidence and the interests of justice would be best served by a
new trial.3
We review the district court’s denial of a motion for
judgment of acquittal de novo. United States v. Castaneda-Cantu,
20 F.3d 1325, 1330 (5th Cir. 1994). We must affirm the jury
verdict if, viewing all the evidence and drawing all reasonable
inferences in favor of the verdict, a reasonable trier of fact
could find that the evidence establishes the guilt of the
defendant beyond a reasonable doubt. United States v. Sanchez,
961 F.2d 1169, 1173 (5th Cir.), cert. denied, 506 U.S. 918
(1992); see also Jackson v. Virginia, 443 U.S. 307 (1979). It is
not for the court, upon motion for judgment of acquittal, to
weigh the evidence or assess the credibility of witnesses.
Sanchez, 961 F.2d at 1173. However, if the evidence viewed in
the light most favorable to the government supports an equal or
nearly equal theory of guilt and of innocence, we must reverse
the conviction because a reasonable jury, under these
circumstances, necessarily entertains a reasonable doubt. Id.
We review the district court’s decision whether to grant a
new trial for abuse of discretion. United States v. Cooks, 52
FED. R. CRIM. P. 29(a).
3
Rule 33 provides that “[t]he court on motion of a
defendant may grant a new trial to that defendant if required in
the interest of justice.” FED. R. CRIM. P. 33.
10
F.3d 101, 103 (5th Cir. 1995). A new trial is granted “only upon
demonstration of adverse effects on substantial rights of a
defendant.” Id.
Both defendants were convicted of conspiracy to commit bank
robbery, bank robbery, and use of a firearm during a crime of
violence, and Rasco was convicted of being a felon in possession
of a firearm. Neither defendant disputes that the government
proved that an armed bank robbery took place at Hibernia National
Bank on Ellerbe Road in Shreveport on or about July 6, 1995.4
Rather, Rasco and Milton argue that the evidence adduced at trial
was insufficient to link them to the offense.
The government’s key witness was Vincent West, who testified
that the day before the robbery he, Rasco, and Milton planned to
commit a robbery. West testified that on the day of the robbery
the three men agreed to rob the Hibernia Bank on Ellerbe Road,
and that Rasco and Milton, both armed with handguns, committed
the robbery while West waited in the Suburban. When presented at
trial with pictures taken by bank surveillance cameras, West
identified Rasco as the individual standing on the bank counter
4
To prove the offense of bank robbery in violation of 18
U.S.C. § 2113(a), the government must show that (1) an individual
or individuals (2) used force and violence or intimidation (3) to
take or attempt to take (4) from the person or presence of
another (5) money, property, or anything of value (6) belonging
to or in the care, custody, control, management, or possession
(7) of a bank, credit union, or savings and loan association.
United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994).
The punishment may be enhanced when, in committing or attempting
to commit the offense, the defendant assaulted another person or
put in jeopardy the life of another person by the use of a
dangerous weapon or device. 18 U.S.C. § 2113(d).
11
with a gun in his hand. West stated that he recognized the white
face of the watch that Rasco was wearing. In addition, the
evidence showed that Kimble and Taylor, the two juveniles
questioned by police, identified Rasco in a photo lineup as the
man who had offered to buy the bicycle on the day of the robbery.
Taylor identified Rasco at trial as the man he had seen that day.
Without reviewing all of the evidence presented by the
government, we note that it is well-established in this circuit
that a defendant may be convicted based upon the uncorroborated
testimony of a co-conspirator. United States v. Hernandez, 962
F.2d 1152, 1157 (5th Cir. 1992). The jury apparently found West
to be credible and chose to believe his testimony rather than the
alibi testimony presented by Rasco and Milton. Our review of the
record leads us to conclude that the evidence was sufficient to
support the convictions of both defendants on all counts.
Similarly, we conclude that the verdict is not contrary to the
weight of the evidence and the district court did not abuse its
discretion in denying the motions for a new trial.
2. Prosecutor’s remark during closing argument
During his rebuttal argument the prosecutor noted that
defense counsel had made reference in closing to a “Deputy
Menefee” despite the fact that no “Deputy Menefee” had testified
during trial. The prosecutor remarked that the defense could
have called Deputy Menefee or another officer who had written a
report on the incident but chose not to, and thus was attempting
“to make an issue out of non-evidence.” Rasco and Milton contend
12
that this remark was improper and prejudicially affected their
substantial rights by shifting the burden of proof to the
defense. They argue that the district court should have granted
their motions for a new trial on the basis of this prosecutorial
misconduct.
Significantly, the prosecutor’s remark was made in response
to defense counsel’s reference to an individual who was not a
witness in the case. The prosecutor’s remark did not improperly
invite the jury to draw an inference from the defense’s failure
to call a certain witness, but suggested that the defense was
attempting to rely on evidence that had not been introduced.
Even assuming that the prosecutor’s comment was improper, Rasco
and Milton have made no showing that the comment prejudicially
affected their substantial rights. “The test to be applied in
cases such as these is well settled: Does the prosecutor’s
argument, taken as a whole in the context of the entire case,
prejudicially affect substantial rights of the defendant?”
United States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977).
The comment at issue here concerned the existence of evidence
tending to undermine the reliability of Elton Kimble’s
identification of Rasco from the photo lineup. Even without
Kimble’s photo identification of Rasco, the jury could have
concluded from West’s testimony and from Robert Taylor’s
identification of Rasco in court that Rasco was one of the bank
robbers. The district court did not abuse its discretion in
13
declining to grant the motion for new trial on the basis of the
prosecutor’s remark.
3. Mid-trial publicity
Rasco and Milton contend that mid-trial publicity concerning
Rasco’s prior criminal record and the applicability of the “three
strikes” provision was inherently prejudicial and the district
court abused its discretion by failing to poll the jury on
exposure to trial publicity. As “every claim of potential jury
prejudice due to publicity must turn upon its own facts,” United
States v. Aragon, 962 F.2d 439, 444 (5th Cir. 1992), we review
the facts related to trial publicity in this case.
On the first day of the trial, and each day during, The
Shreveport Times, the only local newspaper, ran a story in the
local/state section containing a brief statement of the status of
the trial and a statement that Rasco faced a possible life
sentence under the federal “three strikes” provision due to his
two prior convictions. During jury selection, the district judge
did not question prospective jurors about possible exposure to
new accounts of the trial. After the jury had been sworn in and
excused for a recess, Rasco’s attorney, Dan Burt, mentioned to
the judge that there had been no questioning regarding trial
publicity. The following exchange took place:
Mr. Burt: There was no questioning about
publicity, and it might be something that could be
handled in the back room quietly with no problem.
The Court: Mr. Burt, everything that’s missing,
that is fair game for you and Mr. Rasco. We are at the
stage of the trial that nothing is curable at this
14
moment. We are going to have to try this case today
and tomorrow.
Mr. Burt: I understand.
The Court: And if you think there has been
publicity about this case, I’ll direct them not to read
or to listen, nor to talk. That’s a closing
instruction at the end of the afternoon normally, and a
beginning instruction.
Mr. Burt: Right, and maybe throw in, “And if you
happen to have read something, put it out of your
mind.”
The Court: Right.
Mr. Burt: That’s what we would have done on voir
dire anyway.
The Court: All right.
As agreed, the court instructed the jury to disregard any
publicity about the trial. Nevertheless, during jury
deliberations, the jury foreman sent a note to the judge stating
that “One of the jurors has mentioned that Rasco is subject to
the ‘3 strikes you’re out rule.’” Although Rasco had stipulated
to a prior conviction for purposes of the count charging him with
being a convicted felon in possession of a firearm, no evidence
as to the applicability of the “three strikes” statute had been
introduced during trial. The judge received the jury’s note in
chambers and summoned counsel to discuss an appropriate response.
They agreed to resubmit to the jury a photocopy of the second
paragraph of Jury Instruction Number 16, which provided:
If a defendant is found guilty, it will be my duty to
decide what the punishment will be. You should not be
concerned with punishment in any way. It should not
enter your consideration or discussion.
15
In addition, the judge instructed the jury in writing to
“[p]lease reread instruction number 16 - second paragraph (see
attached).” Rasco’s counsel did not request that the court
determine the extent of the jury’s exposure to the trial
publicity.
The trial judge has broad discretion in ruling on the issue
of prejudice resulting from a jury’s exposure to news articles
concerning a trial. Aragon, 962 F.2d at 443. “It is for the
trial judge to decide at the threshold whether news accounts are
actually prejudicial; whether the jurors were probably exposed to
the publicity; and whether the jurors would be sufficiently
influenced by bench instructions alone to disregard the
publicity.” Gordon v. United States, 438 F.2d 858, 873 (5th
Cir.), cert. denied, 404 U.S. 828 (1971).
There are a number of facts specific to this case that,
taken together, lead us to conclude that the district court did
not abuse its discretion in declining to voir dire the jury
concerning exposure to trial publicity. First, the three news
articles in the record are brief factual accounts of the bank
robbery trial that contain little information about Rasco’s prior
criminal record. They state that Rasco has “two prior
convictions” and is being tried subject to the federal “three
strikes you’re out” rule which would mandate a life sentence if
Rasco were found guilty. No article in the record indicates the
nature or seriousness of Rasco’s prior offenses. Second, the
jury was aware that Rasco had at least one prior conviction given
16
the charge of being a convicted felon in possession of a firearm
and Rasco’s stipulation to a prior conviction. This mitigates
the potential prejudice of news indicating that Rasco in fact had
two prior convictions. Moreover, as the district court noted,
knowledge by the jury of the applicability of the “three strikes”
rule and its mandatory life sentence could have benefitted Rasco
in the course of jury deliberations as easily as it could have
prejudiced him. Third, counsel for Rasco agreed after the jury
was sworn in that instructions to disregard trial publicity would
suffice to ensure a fair trial. This was effective trial
strategy on the part of defense counsel; insisting on voir dire
likely would have raised the level of emphasis on Rasco’s prior
convictions. Even after learning during deliberations that one
juror had knowledge that the “three strikes” rule applied,
defense counsel agreed after consultation with the court that
reiteration of the instruction to ignore issues of sentencing was
an adequate response. Finally, the jury in fact was admonished
repeatedly to disregard all media accounts of the trial and to
ignore issues of punishment during deliberations.
Rasco and Milton insist that the district court was required
to voir dire the jury in light of the mid-trial publicity, citing
Aragon, supra. In Aragon, a drug smuggling case, this court held
that the district court abused its discretion in denying defense
counsel’s request at the commencement of trial to poll the
already-empaneled jury regarding exposure to a highly prejudicial
article that appeared that morning in the local paper. 962 F.2d
17
at 442-47. Of great significance to the court was the fact that
the article was prominently located on the front page of the
metro section of the newspaper and went into substantial detail,
far beyond the record, concerning the defendant’s “‘history’” of
drug arrests and convictions as well as his alleged boasting
about smuggling large quantities of marijuana and having earlier
dealings with a reputed drug kingpin in Mexico. Id. at 441-42 &
n.4. The Aragon court distinguished another Fifth Circuit case,
United States v. Manzella, 782 F.2d 533 (5th Cir.), cert. denied,
476 U.S. 1123 (1986), in which we upheld the defendant’s
conviction despite the district court’s failure to voir dire the
jury after publication of a news article concerning the trial.
Aragon, 962 F.2d at 446. Unlike the article at issue in Aragon,
the article in Manzella mentioned the defendant’s prior
conviction in one small paragraph at the end of the medium-length
article. Manzella, 782 F.2d at 543. We concluded that although
the article’s reference to a prior conviction was prejudicial,
“the chances of its actual influence over the jury’s decision-
making [are] minuscule.” Id.
Our cases indicate that whether a district court abuses its
discretion in declining to voir dire a jury following mid-trial
publicity depends on the specific circumstances of the case.
Under the circumstances here, the district court was within its
discretion to decline to voir dire the jury and a new trial is
not warranted on this ground.
18
4. Attorney-directed voir dire
Finally, Rasco argues that he was deprived of a fair trial
because the district court denied his motion for full attorney-
directed voir dire. We review the manner in which the district
court conducts voir dire for clear abuse of discretion. United
States v. Rowe, 106 F.3d 1226, 1227 (5th Cir. 1997).
Rasco claims that examination of potential jurors by defense
counsel would have revealed that some of the jurors had knowledge
of Rasco’s criminal history as a result of media publicity.
Rasco’s counsel, however, suggested at the conclusion of jury
selection that the court could handle the publicity issue “in the
back room quietly with no problem,” and stated that admonishing
the jury to ignore any information that they might have been
exposed to was “what we would have done on voir dire anyway.”
Furthermore, the requested jury questions that defense counsel
submitted to the court before voir dire did not specifically
inquire into exposure to media publicity.
The trial court has broad discretion to determine who will
question potential jurors and what questions will be asked.
Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981). Rule
24(a) of the Federal Rules of Criminal Procedure provides:
The court may permit the defendant or the defendant’s
attorney and the attorney for the government to conduct
the examination of prospective jurors or may itself
conduct the examination. In the latter event the court
shall permit the defendant or the defendant’s attorney
and the attorney for the government to supplement the
examination by such further inquiry as it deems proper
or shall itself submit to the prospective jurors such
additional questions by the parties or their attorneys
as it deems proper.
19
FED. R. CRIM. P. 24(a) (emphasis added). The district court did
not abuse its discretion in its conduct of voir dire in this
case.
III. CONCLUSION
We hold that 18 U.S.C. § 3559(c) does not violate separation
of powers or ex post facto principles and was properly applied to
Rasco in this case. We further hold that the evidence was
sufficient to support the convictions of Rasco and Milton and
that a new trial is not warranted on the basis of the
prosecutor’s remarks during closing argument, mid-trial
publicity, or the district court’s conduct of voir dire. The
judgment of the district court is AFFIRMED.
20