271 F.2d 475 - Sellers v. United States — 271 F.2d 475

How this case has been cited

Cited by 101 later decisions — most recently February 2010 · most notably State v. Manley (1969), Brown v. United States (1964)

67 federal appellate · 2 district · 31 state decisions — followed in 12 states

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *476Wilbur K. Miller, Circuit Judge, dissented.

¶2Mr. Josiah Lyman, Washington, D. C., for appellant.

¶3Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appel-lee. Mr. John W. Warner, Jr., Asst. U. S. Atty., also entered an appearance for appellee.

¶4Before Wilbur K. Miller, Bazelon and Bastían, Circuit Judges.

¶5PER CURIAM.

¶6Appellant was convicted of violation of statutes relating to marihuana1 and dangerous drugs.2 His conviction was based upon the testimony of an undercover police officer who had befriended him.

¶7One of the many allegations of error relates to the voir dire upon which the court alone interrogated the jurors. At the conclusion of its examination, defense counsel requested the court to ask whether “any of the jurors [are] inclined to give more weight to the testimony of a police officer merely because he is a police officer than any other witness in the case ?” (Emphasis supplied.) The court denied the request. We hold this is reversible error requiring a new trial.

¶8A trial court’s “broad discretion as to the questions to be asked” on voir dire is “subject to the essential demands of fairness.” Aldridge v. United States, 1931, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054. In the recent case of Chavez v. United States, 10 Cir., 1958, 258 F.2d 816, 819, certiorari denied sub nom. Tenorio v. United States, 1959, 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577, it was pointed out that a “defendant cannot be fairly tried by a juror who would be inclined to give unqualified credence to a law enforcement officer simply because he is an officer.” 3

¶9In the present case the Government concedes that the voir dire had by no means been unduly protracted. The police officer’s testimony was virtually the *477entire case for the prosecution. In these circumstances, the refusal to question the jurors in accordance with defense counsel’s request constituted an abuse of discretion.

¶10Since the other questions raised on this appeal may not recur in a new trial, we do not consider them.

¶11Reversed and remanded.

¶12WILBUR K MILLER, Circuit Judge, dissents.