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No Per Se Rule for Voir Dire

A defendant who was part of a group that used forged documents to obtain contractor access to a U.S. bulk fuel depot near Baghdad, and then stole large quantities of fuel to sell on the Iraqi black market, has his conviction under 18 U.S.C. § 641 for theft of the fuel, and 48-month sentence affirmed; the 4th Circuit rejects a per se rule requiring voir dire on reasonable doubt and burden of proof.

Defendant urges us to hold that district courts should always include in their voir dire questions about a juror’s ability to apply the reasonable doubt standard and to hold the government to its burden of proof.

The Supreme Court has not required specific voir dire questions except in very limited circumstances – capital cases and cases where racial or ethnic issues are inextricably bound up with the conduct of the trial. In non-capital cases such as this one, with no issues of racial or ethnic prejudice, the district court need not pursue a specific line of questioning on voir dire, provided the voir dire as a whole is reasonably sufficient to uncover bias or partiality in the venire. We decline to adopt the per se rule advocated by defendant.

Defendant’s intermediate argument that inquiry into the reasonable-doubt standard and burden-of-proof issue is required when requested by the defendant has been accepted by the Sixth Circuit, but already rejected in this circuit, and this panel is not at liberty to revisit the issue. We reject defendant’s claim that the district court erred by rejecting his proposed voir dire questions.

We also reject defendant’s claim that we must vacate his conviction under 18 U.S.C. § 641, on the ground that the district court erred by refusing to instruct the jury that knowledge that the property belonged to the U.S. is an element of § 641. Every circuit to have considered the question, including this one, has concluded that, with regard to § 641, government ownership of the stolen property is a jurisdictional fact only and that knowledge of the government’s ownership is not an element of § 641.

We disagree that the Supreme Court’s recent decision in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009), changes the analysis and compels the conclusion that knowledge of government ownership is an element of 641. We conclude the district court properly rejected defendant’s argument that the government was required to prove that he knew the fuel belonged to the Army.

We also disagree that defendant was entitled to a two-level reduction in his sentence for acceptance of responsibility. Defendant strongly asserted his innocence at trial, arguing that he believed all along that the group was operating under a legitimate contract.

Although another defendant involved in the scheme received a lesser sentence, that defendant pleaded guilty, assisted the government in the investigation and testified to the government’s satisfaction in this defendant’s trial. Even if the other defendant did commit perjury, as defendant here alleges, we simply cannot conclude the district court abused its discretion by declining to give dispositive weight to the sentence received by the other defendant.

We reject defendant’s claim that his below-guidelines sentence of 48 months is unreasonable.

We conclude the district court’s conduct of voir dire was sufficient and the district court correctly held that the government was not required to prove that defendant knew the fuel belonged to the U.S.

Conviction and sentence affirmed.

U.S. v. Jeffery
(Traxler, J.) No. 09-5229, Feb. 9, 2011; USDC at Alexandria, Va.; Christopher R. K. Leibig for appellant; Ellen R. Meltzer, USDOJ, for appellee. VLW 011-2-030, 19 pp.

VLW 011-2-030

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