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United States v. Robinson

decided: September 18, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ARMAND W. ROBINSON, SR., DEFENDANT-APPELLANT



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-86-33-Cr-Sarah Evans Barker, Judge.

Coffey and Manion, Circuit Judges, and Parsons, Senior District Judge.*fn*

Author: Parsons

PARSONS, Senior District Judge.

Armand W. Robinson was convicted for drug-related offenses under a six-count indictment. In his appeal he challenges the district court's handling of voir dire, its having limited cross-examination of one of the prosecution's witnesses, and FBI informant, and its having admitted testimony concerning his, Robinson's prior involvement in cocaine traffic. Despite the seriousness of some of the concerns he raises about the manner in which his trial was handled, we affirm.

On March 20, 1986 Armand Robinson, his cousin Alan Robinson and a third defendant, Darwin Larkin, were before the court under a six-count offenses. Their trial began on May 13, 1986. On the second day of trial Alan Robinson entered a plea of guilty and later testified against the two remaining defendants. Then on May 22, 1986, while the trial was in progress, the Indiana Supreme Court disbarred Larkin's attorney, and a mistrial was declared as to Larkin. The trial proceeded on as to Armand Robinson alone, and on May 23, 1986, the jury returned verdicts of guilty on all six counts of the indictment.

The evidence against Robinson consisted of the testimony of a number of FBI agents, of a former co-defendant, Alan Robinson, and of the FBI informant, Marvin Garner, together with exhibits, including packages of cocaine, and paraphernalia for use in preparing it for sale. In addition there were transcribed tape recordings of telephone calls from Marvin Garner to Armand Robinson. These had been recorded in the presence of the FBI. And there was a transcription of a tape recording of a cocaine transaction at which Armand and Alan Robinson, Darwin Larkin, Marvin Garner, and one other individual who was never identified, were present. For purposes of this transaction, the FBI had fitted Garner with a body recorder and transmitter and had provided him with $2,200 with which to purchase an ounce of cocaine. The transaction that was recorded took place in a motel room. Once it was completed the FBI immediately executed warrants to search the motel room and proceeded to arrest Larkin and Alan Robinson while they were still present. By that time, however, Armand Robinson had left, but he soon was found and arrested also. The unidentified participant was never caught.

The testimony of the informant, Garner, was in some respects problematic for the prosecution, and his own criminal background was extensive and included charges of forgery. Tape recordings made under the FBI's supervision transcended the issues of Garner's credibility, and their contents reveal Armand Robinson's active participation and guilt as charged in the indictment. The testimony that Alan Robinson presented after he had pled guilty created issues of credibility, but the jury was properly instructed as to the credibility issues, and, we assume, weighed the evidence in accordance with those instructions and found it sufficient to support a conviction. In his appeal Armand Robinson does not challenge the sufficiency of the evidence to convict. His claims of error are directed principally at the trial court's handling of evidentiary matters and especially at the court's handling of the jury voir dire.

I

Robinson challenges four aspects of the impaneling of the jury, two of which earn special concern. His first complaint is that the district court abused its discretion in refusing adequately to inquire concerning possible racial prejudice of the jury. Robinson acknowledges that he was present during cocaine transactions involving his co-defendants and the FBI informant, Marvin Garner; but he defended his presence as being innocent, using the theory that an experienced vice officer must exercise discretion when determining whether or not to arrest participants in a drug transaction. Robinson, who is a black person, claimed that his decision to overlook a transaction between his cousin, Alan, and a friend, Larkin, was influenced by his training as a vice officer and "his role within the black, inner-city community." He said that his theory was that "if a black, inner-city police officer made arrests in every instance of an infraction or crime of which he is aware, he would soon have no contacts, no network, no sources, no support within the black community, and no cooperation."

It is this alleged pressure on a black, inner-city police officer which, according to Robinson, necessarily injected the issue of race into his trial. He claims that a fair trial "depended on a jury who could understand" these pressures, and that the district court did not inquire into possible racial prejudice among the potential jurors far enough to permit him intelligently to ascertain whether or not a juror was prejudiced and would have been predisposed against his theory of the case.

Robinson's argument for a voir dire which would have educated the venire about this "black inner-city culture" theory misconstrues the purpose of voir dire. The constitutional (as opposed to the advocate's) purpose of voir dire is not to educate the veniremen about any particular facet of the case nor to condition them to embrace any theory (not already established as a matter of law or to be established by the use of expert witnesses). Its role is simply to ensure that the jury to be impaneled will be an impartial one. Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981). To so ensure juror impartiality, the district court must make inquiry that is sufficient to allow it to perform its "responsibility to remove prospective jurors who will not be able impartially to follow the court's instruction and evaluate the evidence. . . ." Id. But an adequate voir dire also must protect "the defendant's right to exercise peremptory challenges" where they are allowed. Id.

Robinson concedes that specific questioning regarding racial prejudice is not required under the principles of Turner v. Murray, 476 U.S. 28, , 106 S. Ct. 1683, 1688, 90 L. Ed. 2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 594-98, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976); but see Ham v. South Carolina, 409 U.S. 524, 527, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973); but he claims that in his case the court, who conducted all of the voir dire, erred in not inquiring thoroughly on the issues of race prejudice. The standard we apply to this claim of error is that stated in United States v. Hasting, 739 F.2d 1269 (7th Cir. 1984): "This court will not find that a trial court abused its discretion in conducting voir dire where there is 'sufficient questioning to produce, in light of the factual situation involved in the particular trial, some basis for a reasonably knowledgeable exercise of the right of challenge.'" Id. at 1273 (quoting United States v. Martin, 507 F.2d 428, 432 (7th Cir. 1974)).

In a sidebar conference during voir dire, Robinson's counsel made the following request to the court:

In request that the jury be asked whether they have had any life experiences with members of the opposite race, in particular black persons, which have left them with either strongly negative or strongly positive attitudes towards members of that race.

Transcript, Vol. II, at 124-28. Following this request, and over the prosecutor's objection, the trial court asked the jury:

Are there any of you who, from your own personal circumstances or background, who have had an experience that would cause you to feel with a particular prejudice or irrational feeling against any member of any race or religion or creed or moral persuasion if any such witness or person were to be presented before you in this case? If so, would you raise your hand?

Transcript, Vol. II, at 140. The district court also asked several other questions, not related to race, which were designed to elicit a response from any juror who could not be impartial and to impress upon each juror the solemn responsibility of deciding the facts of the case based on the evidence to be presented and not based on bias or preconception.

During the oral argument before us counsel for Robinson was given an opportunity to suggest what further questions should have been asked that would uncover ordinary racial prejudice among members of the venire. He was unable to suggest any such question. Although it is possible to repeat the same inquiry in several other forms to be sure it is well understood, we conclude that the district court did not commit errors by not at his request or on its own initiative making further inquiry on this matter.

II

Robinson's next claim of error regarding the voir dire concerns the district court's refusal to allow any follow-up inquiry into the acknowledgment by some members of the venire that they were aware of media publicity surrounding one or more of the attorneys in the case. Presumably, the court and the attorneys were aware of recent publicity about the attorney representing Darwin Larkin. According to Robinson's ...


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