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United States v. Reed

decided: November 18, 1975.

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES REED, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, convicting defendant-appellant of conspiracy to violate 21 U.S.C. § 841. Affirmed.

Oakes, Van Graafeiland and Meskill, Circuit Judges. Oakes, Circuit Judge (concurring).

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment of conviction for conspiracy to violate the federal narcotics law (21 U.S.C. § 841) after a trial by jury in the Southern District of New York. Since appellant's challenge on appeal goes not so much to the finding of guilt as to the manner in which it was reached, our discussion will be limited to the procedural errors asserted.

Among the exhibits offered by the Government were two tape recordings in which a special government agent is heard arranging an appointment with the defendant. Possession of these recordings was not disclosed to appellant's attorney until three days prior to the trial, the Government having mistakenly denied any electronic eavesdropping only four days earlier. Appellant contends it was error for the trial court to admit these tapes into evidence without having granted his counsel's request for a continuance.

We have read the 429 word transcript of these recordings and see nothing in it which required extensive pretrial preparation. Moreover, the brief of appellant's capable counsel has disclosed nothing which our research overlooked. There was no abuse of discretion in the denial of the continuance. United States v. Pellegrino, 273 F.2d 570 (2d Cir. 1960); United States v. Cirillo, 499 F.2d 872 (2d Cir.), cert. denied, 419 U.S. 1056, 42 L. Ed. 2d 653, 95 S. Ct. 638, 95 S. Ct. 639 (1974).

Appellant's second argument for reversal is that it was error for the trial court to "refuse" him inquiry on voir dire on the issue of racial prejudice after his counsel had requested such inquiry. Again, we have gone to the record, and we find no such "refusal." Appellant's counsel requested the court to ask two questions: the first inquiring whether any juror during his lifetime had ever had an "unpleasant experience" with a person of another race; the second inquiring as to membership in any organization, labor union, tenants' group or body of any kind which had been involved in a racial dispute. The court declined to ask these specific questions, and we believe that this was a proper exercise of its discretion.

In this great melting pot which is America, there are few of us who do not rub shoulders constantly with members of other races. "Unpleasant experiences" between persons of different race therefore connote little unless they are racially motivated. Membership in an organization which has been involved in a racial dispute likewise has little significance. This could encompass membership in such disparate groups as major political parties, religious denominations or national labor unions. Such affiliation does not necessarily carry with it an implication of racial prejudice.

Upon the court's rejection of the proffered questions, the following colloquy occurred:

The Court: If you wish, I will ask whether anybody on the jury has any prejudice because of the defendant's membership in the negro race. Do you want me to ask that?

Ms. Piel: I don't think that is an appropriate question.

The Court: Do you want me to ask the questions just as you phrase them?

Ms. Piel: I refer you to United States v. Aldrich.

The Court: I don't know what you are talking about. United States v. Aldrich at this moment does not mean anything to me. If you tell me that I got [sic] to ask questions 5 and 6 the way you phrase them, I decline to do so. The only question I will ask is whether they have ...


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