United States v. Paris Young ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3085
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United States of America
Plaintiff - Appellee
v.
Paris B. Young
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 16, 2021
Filed: July 27, 2021
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Before KELLY, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Paris Young was convicted by a jury of four counts related to unlawful
possession of drugs and a gun. The district court1 applied an enhancement under the
Armed Career Criminal Act and sentenced him to 20 years in prison. Young appeals
1
The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
(1) the district court’s failure to ask about implicit bias during voir dire, and (2) the
sentencing enhancement. We affirm.
I.
Young, a black man, was stopped for a traffic violation by two Kansas City,
Missouri police officers. When they approached, Young fled. The officers caught
him, arrested him, and searched his car. They found a small amount of marijuana,
12.4 grams of crack cocaine (wrapped in 46 individual bags), and a loaded gun with
the serial number scratched off. Young was indicted on four counts: (1) possession
with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C);
(2) possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c)(1)(A)(i); (3) being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(e)(1); and (4) possession of a firearm with an
obliterated serial number, 18 U.S.C. §§ 922(k), 924(a)(1)(B).
Before trial, the district court did voir dire based on questions submitted by
the parties. 2 The court asked several questions about biases, credibility, and the
presumption of innocence. The district court also reminded the jurors to set aside
their personal feelings and beliefs and to do their best to remain impartial.
Young submitted twelve proposed voir dire questions specifically related to
race and explicit or implicit bias. The district court did not ask any of them. Near
the end of voir dire, Young’s attorney objected: “I just wanted to note for the record
that I’d like to voir dire on race . . . . [and] if there’s some kind of implicit bias that
the jurors might have about [the defendant’s race].” D. Ct. Dkt. 115 at 109–10. The
2
Under the district court’s own rules, Judge Kays does voir dire based on
questions submitted by counsel. See Judge David Gregory Kays Case Procedures,
Criminal Rules of Trial for Jury Trials,
https://www.mow.uscourts.gov/sites/mow/files/DGK_Criminal_Rules_for_Jury_T
rial.pdf. After voir dire, “counsel may be afforded an opportunity to pose additional
questions to the panel.” Id.-2-
district court replied, “[T]here are race questions and there are implicit bias
questions, right? . . . I’ll be happy to broach the subject of race with this jury. Okay?”
Id. at 110. Young’s attorney replied, “Okay. That would be great.” Id. The district
court continued voir dire and asked if “anyone here . . . would find it difficult” to
make a decision in the case because of the defendant’s gender, race, or ethnicity. Id.
at 111. No one raised a hand.
The jury convicted Young on all counts. Young’s presentence investigation
report found that he qualified for an enhancement of his sentence under the ACCA,
18 U.S.C. § 924(e), due to a prior conviction in Missouri for second degree murder
and two convictions in Missouri for sale of cocaine base. The enhancement
subjected him to a 15-year statutory minimum sentence for being a felon in
possession. Young objected, arguing that his two prior drug convictions were not
predicate offenses under the ACCA because at the time of the crimes, Missouri
criminalized five drugs that were not on the federal drug schedule. The district court
noted the objection but applied the enhancement.
The district court sentenced Young to 180 months in prison both on the
possession with intent to distribute charge and the felon in possession charge, to run
concurrently. The district court also sentenced Young to a concurrent 60 months on
the obliterated serial number charge. The district court further sentenced him to 60
months on the possession of a firearm in furtherance of a drug trafficking crime
charge to run consecutively with the other charges, for a total sentence of 240
months. The district court explained that even if the ACCA enhancement did not
apply, it would have given Young the same sentence under the 18 U.S.C. § 3553(a)
factors.
Young appeals the district court’s voir dire on race, arguing that its failure to
ask about implicit bias was reversible error. He also appeals the district court’s
application of the ACCA enhancement.
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II.
“The adequacy of voir dire is not easily subject to appellate review.” Rosales-
Lopez v. United States, 451 U.S. 182, 188 (1981). We review “whether the district
judge conducted voir dire in a way that protected a defendant’s Sixth Amendment
right . . . [for] an abuse of discretion.” United States v. Pendleton, 832 F.3d 934,
943 (8th Cir. 2016) (citation omitted) (cleaned up). This is necessary because “the
district court is in the best position” to evaluate potential biases against a defendant.
Id. “The district court abuses its discretion when the overall examination of the
prospective jurors and the charge to the jury fails to protect the defendant from
prejudice or fails to allow the defense to intelligently use its peremptory challenges.”
See United States v. Nelson, 347 F.3d 701, 706 (8th Cir. 2003) (citation omitted)
(cleaned up).
“There is no constitutional presumption of juror bias for or against members
of any particular racial or ethnic groups.” Rosales-Lopez, 451 U.S. at 190. When it
comes to questioning prospective jurors about racial or ethnic bias, district courts
are subject the United States Constitution and the Supreme Court’s supervisory
authority over federal courts. Id. at 189–90.
A. Constitutional Requirement
“[A] trial court’s failure to inquire as to prospective jurors’ ethnic or racial
prejudices is constitutionally infirm only if ethnic or racial issues are inextricably
intertwined with conduct of the trial, or if the circumstances in the case suggest a
significant likelihood that racial prejudice might infect the defendant’s trial.” United
States v. Borders, 270 F.3d 1180, 1182 (8th Cir. 2001) (emphasis added). In other
words, the district court abuses its discretion when it denies the defendant’s request
to examine jurors on racial bias only where there are “substantial indications of the
likelihood” of racial bias affecting the jurors in that case. Id. at 1183 (quoting
Rosales-Lopez, 451 U.S. at 190).
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There were no such indications here. Race was not “inextricably intertwined
with conduct of the trial.” Id. at 1182; see also Ham v. South Carolina, 409 U.S.
524, 527 (1973) (concluding that voir dire on racial prejudice was constitutionally
required when a black civil rights activist believed he was being framed by law
enforcement). Young’s charges involved possession of drugs and a gun. His crimes
were victimless, and nothing about his arrest or convictions concerned race. Young
admits as much. Young Br. 19 (conceding that this case is one in which “race is
NOT an issue”). Similarly, he points to nothing that presents a “significant
likelihood that racial prejudice” infected his trial, so failure to voir dire on race was
not “constitutionally infirm.” Borders, 270 F.3d at 1182. Under these facts, Young
can’t show that voir dire on race was constitutionally required. And without that
threshold being crossed, we see no reason why voir dire on implicit racial bias would
be constitutionally required.
B. Supervisory Requirement
Even when not constitutionally required, the Supreme Court “require[s] that
questions directed to the discovery of racial prejudice be asked in certain
circumstances.” Rosales-Lopez, 451 U.S. at 190. One circumstance is when the
defendant requests voir dire on the jurors’ biases. Id. at 192. “Failure to honor [that]
request, however, will be reversible error only where the circumstances of the case
indicate that there is a reasonable possibility that racial or ethnic prejudice might
have influenced the jury.” Id. at 191 (emphasis added). Where the defendant is
“accused of a violent crime and where the defendant and the victim are members of
different racial or ethnic groups,” the district court must make the requested inquiry.
Id. at 192. But when “the defendant is charged with a non-violent victimless crime,
such inquiry is not mandated and the reviewing court should consider the
effectiveness of the trial court in reasonably assuring that the prejudice would be
discovered if present.” Llach v. United States, 739 F.2d 1322, 1333 (8th Cir. 1984)
(citation omitted). Otherwise, the issue remains “primarily with the trial court,
subject to case-by-case review by the appellate courts.” Rosales-Lopez, 451 U.S. at
192.
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As noted above, Young’s crime was nonviolent and victimless. So the only
question is whether the district court’s voir dire “eliminated . . . any reasonable
possibility” that racial biases could impact the jury’s decision. Id. at 193. We think
that it did. Before even mentioning race to the potential jurors, the district court
asked if they held any religious, philosophical, political, or personal beliefs that
would make it difficult for them to serve as jurors. The district court also gave
repeated reminders and admonitions against indulging biases.
But the district court did not stop there. At Young’s request, the district court
asked specific questions about race and ethnic bias. The district court reminded the
potential jurors that they were to make decisions regardless of gender, race, or
ethnicity. As to Young, the district court stated: “[T]he color of the defendant has
nothing to do with your decisionmaking in this case. Does anybody struggle with
that? If so, please raise your hand.” D. Ct. Dkt 115 at 110. After seeing no hands,
the district court finished voir dire. While the district court had no obligation to
question the potential jurors on racial or ethnic bias, it did—at Young’s request. The
district court’s voir dire went beyond the requirement to eliminate “any reasonable
possibility” that racial or ethnic prejudice could have influenced the jury. Rosales-
Lopez, 451 U.S. at 193.
Young nonetheless takes issue with the district court’s failure to inquire into
potential implicit biases. He asks us to establish a rule that a district court must ask
questions “in a manner meant to elicit indications of implicit bias” whenever the
defendant requests it. Young Br. 12 (emphasis added). We decline that invitation.
While “we do not minimize the importance to criminal defendants of removing the
possibility of racial bias on the jury,” we note that “how best to do that . . . is
primarily left to the broad discretion of the district court.” United States v. Diaz,
No.19-3352, 2021 WL 1783125, at *3 (2d Cir. May 5, 2021) (citation omitted)
(cleaned up) (holding that the district court was not required to voir dire on implicit
bias at the defendant’s request). The district court should eliminate reasonable
possibilities of bias, not every possibility of bias. And the district court did just
that—both by asking the potential jurors if they had any beliefs or biases that would
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prevent them from evaluating the case impartially, and by asking about racial
prejudice. The district court reminded the potential jurors that Young’s race could
not be considered in their decision-making, and we find that the district court did not
abuse its discretion during voir dire.
III.
Young next argues that the district court erred by enhancing his sentence
under the ACCA for two prior serious drug offense convictions. Young claims his
prior convictions are not “serious drug offenses” because at the time, Missouri
outlawed some drugs that federal law did not.
The ACCA applies when a person violates 18 U.S.C. § 922(g) “and has three
previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). A
“serious drug offense” under the ACCA includes “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of
ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
“To determine whether a state drug conviction qualifies as a ‘serious drug
offense’ under federal law, we apply a ‘categorical approach’ and compare the
elements of the state offense with the elements set forth in § 924(e)(2)(A)(ii).”
United States v. Jones, 934 F.3d 842, 842 (8th Cir. 2019) (per curiam). Young
claims that the statute under which he was convicted, Mo. Rev. Stat § 195.211
(1989), criminalized certain drugs that federal law did not, making the state statute
broader than its federal counterpart.
We rejected the same argument in Jones. “In Missouri . . . the identity of the
controlled substance is an element of the offense under § 195.211, so the statute is
divisible based on the drug involved.” Jones, 934 F.3d at 842–43 (citation omitted)
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(cleaned up). “In that circumstance, we may apply a modified categorical approach
and look to judicial records” to evaluate the underlying offense. Id. at 843. Jones
was convicted five times for selling cocaine base—a substance that “qualified as a
‘controlled substance’ under both state and federal law—so the state offenses match
the federal definition on that score.” Id. So, Jones was properly subject to the
enhancement under the ACCA for his prior drug convictions. Id.
Young’s Missouri convictions were for the sale of cocaine base. Cocaine base
is a “controlled substance” under 18 U.S.C. § 812(c), Schedule II(a)(4), so “the state
offense[] match[es] the federal definition.” Id. Young’s prior convictions were
qualifying offenses under the ACCA and the district court did not err in applying the
enhancement.
IV.
The judgment of the district court is affirmed.
KELLY, Circuit Judge, concurring.
I concur in the court’s opinion but write separately to highlight the importance
of adopting practices designed to mitigate the effects of implicit bias on legal
proceedings.
To adequately address the impact of biases—racial or otherwise—on our legal
process, we must first acknowledge that we may hold biases both consciously and
unconsciously.3 On the one hand, there are explicit biases: “attitudes and stereotypes
3
I recognize there is an ongoing debate within the field of psychology
regarding the appropriate terminology for these varying forms of bias. See generally
Anthony G. Greenwald & Calvin K. Lai, Implicit Social Cognition, 71 Ann. Rev.
Psych. 419, 420–22 (2020) (discussing, among other framings, explicit/implicit bias,
direct/indirect bias, and conscious/unconscious bias). Such an academic debate is
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that are consciously accessible through introspection and endorsed as appropriate.”
Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1132
(2012); see also Jennifer K. Elek & Paula Hannaford-Agor, Implicit Bias and the
American Juror, 51 Ct. Rev. 116, 116 (2015) (defining explicit bias as “the form of
bias that a person intentionally endorses (and the traditional definition of racial
prejudice that most people recognize)”). On the other hand, there are implicit
biases—“attitudes and stereotypes that are not consciously accessible through
introspection,” Kang et al., supra, at 1132—which “occur[] when a person makes
associations between a group of people and particular traits that then operate without
self-awareness to affect one’s perception of, understanding of, judgment about, or
behavior toward others,” Elek & Hannaford-Agor, supra, at 116.
Over the past several decades, social psychologists using a number of
different tests (including the Implicit Association Test 4) have found that individuals
may harbor implicit biases even though they consciously decry comparable, explicit
prejudices. See Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias:
Scientific Foundations, 94 Calif. L. Rev. 945, 955–56, 957 tbl. 1, 958 tbl. 2 (2006);
see also Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition:
Attitudes, Self-Esteem, and Stereotypes, 102 Psych. Rev. 4 (1995) (detailing the
“indirect, unconscious, or implicit mode of operation for [a person’s] attitudes and
stereotypes”). These implicit biases may “affect our understanding, decisionmaking,
and behavior, without our even realizing it,” and “have real-world effects.” Kang et
al., supra, at 1126.
beyond the scope of this case, and I use the terms “explicit bias” and “implicit bias”
as they have been commonly used.
4
For a brief explanation of the Implicit Association Test and how it can be
used to measure individuals’ implicit biases, see generally Justin D. Levinson et al.,
Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8
Ohio. St. J. Crim. Law 187, 190–96 (2010).
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Many professions and industries have begun to explore and adopt practices to
minimize the potential influence of implicit bias. See, e.g., Greenwald & Lai, supra,
at 435–37; Jennifer Edgoose et al., How to Identify, Understand, and Unlearn
Implicit Bias in Patient Care, Fam. Prac. Mgmt., Jul.–Aug. 2019, at 29, 31–33; Joan
C. Williams & Sky Mihaylo, How the Best Bosses Interrupt Bias on Their Teams,
Harv. Bus. Rev. (Nov.–Dec. 2019), https://hbr.org/2019/11/how-the-best-bosses-
interrupt-bias-on-their-teams. The law should be no different, and numerous
academics, practitioners, and judges have provided thoughtful commentaries and
suggestions about how the judicial process might adapt to adequately limit the
effects implicit biases may have. See, e.g., Kang et al., supra, at 1169–1186; Elek
& Hannaford-Agor, supra, at 117–18; Mark W. Bennett, Unraveling the Gordian
Knot of Implicit Bias in Jury Selection: the Problems of Judge-Dominated Voir Dire,
the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149,
165–70 (2010); Nat’l Ctr. for State Cts., Strategies to Reduce the Influence of
Implicit Bias 5–21 (2012).
Although the district court here did not abuse its discretion when conducting
voir dire, see Rosales-Lopez v. United States, 451 U.S. 182, 190–91 (1981), I
nevertheless suggest that more can be done to diminish any influence implicit bias
may have on a jury’s deliberations. For example, a district court might take
meaningful steps to educate the venire and the empaneled jury about implicit bias.
See Kang et al., supra, at 1181 (recommending that jurors “must be educated and
instructed” to “become skeptical of their own objectivity and . . . become motivated
to check against implicit bias”). Indeed, some courts show videos to juries and use
special jury instructions in every case to “highlight[] and combat[] the problems
presented by unconscious bias.” Unconscious Bias Juror Video, U.S. Dist. Ct. for
the W. Dist. of Wash., https://www.wawd.uscourts.gov/jury/unconscious-bias (last
accessed July 12, 2021); see also Kang et al., supra, at 1182–83 (discussing the
various strategies used by Judge Bennett, including a juror pledge and special jury
instructions, to educate jurors about implicit bias). Such practices, although
incomplete, cf. Greenwald & Lai, supra, at 435–37, may reduce the likelihood that
jurors will rely on their implicit biases when reaching a verdict.
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It is a cornerstone principle of our legal system that judicial proceedings shall
be fair and unbiased. See In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial
in a fair tribunal is a basic requirement of due process. Fairness of course requires
an absence of actual bias in the trial of cases.”). And in recent years, scientific and
psychological research has discovered that, despite our conscious efforts to think
and do otherwise, we may unconsciously hold on to biases that affect our perception,
understanding, and decisionmaking. Although a court’s reluctance or failure to
address implicit bias may not amount under existing precedent to reversible error,
courts should take it upon themselves to adopt creative solutions—informed by
current scientific research—to ensure that reason, not implicit bias or explicit
prejudice, guides jurors’ deliberations. Doing so would be an effort undertaken “not
. . . to perfect the jury but to ensure that our legal system remains capable of coming
ever closer to the promise of equal treatment under the law that is so central to a
functioning democracy.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017).
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