682 F.

2d 1359
11 Fed. R. Evid. Serv. 467

UNITED STATES of America, Plaintiff-Appellee,

v.
James Webster GROCE, Charles John Chisolm, DefendantsAppellants.
No. 80-5860.

United States Court of Appeals,

Eleventh Circuit.
Aug. 16, 1982.

Anthony F. Gonzalez, Tampa, Fla., Nathan Eden, Key West, Fla., Bennie
Lazzara, Jr., Tampa, Fla., for defendants-appellants.
Frank W. Trapp, Lynn Hamilton Cole, Asst. U. S. Attys., Tampa, Fla., for
plaintiff-appellee.
Appeals from the United States District Court for the Middle District of
Florida.
Before GODBOLD, Chief Judge, HILL and FAY, Circuit Judges.
JAMES C. HILL, Circuit Judge:

Defendants James Groce and Charles Chisolm were apprehended in a fishing

boat approximately forty miles off the Florida coast with more than one
hundred pounds of marijuana floating in the sea nearby. As a result, each was
convicted by a jury on three counts of willfully conspiring to import marijuana,
and possession with intent to distribute the controlled substance within the
United States. They appeal their convictions by challenging the voir dire
procedure of the district court, the admission of a nautical chart and related
testimony into evidence, the sufficiency of the evidence sustaining their
convictions, and the trial judge's failure to instruct the jury as to the
voluntariness of defendant Chisolm's admission. Because all four challenges
fail to support a finding of reversible error, we affirm.

FACTS
2

On July 9, 1980, at about 9:00 a. m. the Coast Guard Cutter Point Swift spotted
a sixty-six foot wooden shrimping vessel approximately forty miles southwest
of Florida. The vessel, Shrimp Chaser I, appeared to be drifting in the open
waters of the Gulf of Mexico, but as the Point Swift approached, Shrimp
Chaser I began to head due west away from Florida. Chief Harry F. Turpin,
Captain of the Point Swift, pulled within a mile of the Shrimp Chaser I and
turned on his hailing light and sirens. Maneuvering his boat closer, Turpin saw
Charles Chisolm standing beside the pilot house of the shrimp boat. Turpin
attempted to stop the boat by identifying himself as the United States Coast
Guard, and as he was shouting he saw defendant James Groce run to the stern
of the Shrimp Chaser I and toss six plastic garbage bags and two burlap bales
overboard.

At this point, the Shrimp Chaser I abandoned its due west course. It shifted in
the water erratically, and then headed toward the Point Swift on a collision
course. To avoid being rammed, Turpin shouted on his P.A. hailer system that
he would open fire if the approaching vessel did not halt. The Shrimp Chaser I
immediately stopped its engines, and four Coast Guard crewmembers boarded
the shrimper.

The boarding party, commanded by Petty Officer William Barts, handcuffed

Chisolm and Groce and had them remain near the rear of the boat while the
Coast Guard crewmembers searched for weapons and other people. Chisolm
and Groce were alone, and Chisolm identified himself as the Captain.

In the meantime, Chief Turpin directed the Point Swift to where he had seen
Groce dump the bags and bales overboard. Using a boat hook and a small
rubber boat, two bags and one bale were recovered; five or six other plastic
bags were broken by the hook with their contents falling into the sea. Turpin
then returned to the Shrimp Chaser I and ordered that defendants be arrested,
read their rights, and transported back to St. Petersburg, Florida.

Once in Florida, and after being read his rights a second time, Chisolm told
DEA Special Agent Lowell Miller that the Shrimp Chaser I left Key West,
Florida on July 3, 1980 to shrimp and was planning to return to Key West. At
trial, however, Officer Barts, a shrimping expert, testified that the Shrimp
Chaser I was not rigged for shrimping. Its nets were not positioned properly,
and the vessel had no ice in the hold which would preserve the captured shrimp.
In addition, a subsequent inspection of the boat by a customs agent revealed

traces of marijuana in the rear of the boat and on the galley table. The customs
agent also corroborated Officer Barts' opinion that if the boat had been
shrimping, the hold would have been dirty and full of ice. Instead, the hold was
unusually clean and contained marijuana seeds and leaves.
7

On the boat's galley table, officials found a partially unfolded navigation chart
indicating the southwestern coast of Florida and a Spanish comic book printed
in Colombia. Another chart, two spiral notepads, and one half of a Colombian
peso also were found in the captain's quarters. Further testimony indicated that
a customary method of identification for rendezvousing ships involved in drug
smuggling is for each ship to carry one half of a Colombian peso. When they
meet, if the two halves match, the identification is verified.

On this and other evidence Chisolm and Groce were convicted of conspiring to
import marijuana into the United States in violation of 21 U.S.C. 952 and 21
U.S.C. 963, conspiring to distribute marijuana in violation of 21 U.S.C.
841(a)(1) and 21 U.S.C. 846, and possession with intent to distribute
marijuana within the United States in violation of 21 U.S.C. 841(a)(1). Each
man was sentenced to three three-year terms to run concurrently, and both have
filed a timely notice of appeal.

VOIR DIRE
9

Chisolm and Groce, both black men, initially maintain that their convictions
should be reversed because of the trial judge's refusal to ask prospective jurors
whether racial prejudice would influence the juror's verdict. Defense counsel
requested that veniremen be asked the following question after the court's
preliminary examination of the panel:

10 the fact that the Defendants in this case are black influence or prejudice your
Does
decision in this case either for or against the Defendant or for or against the
government.
11

Despite defense counsel's position that the question could provide valuable
insight, the trial judge refused the request because of his belief that no
prospective juror would admit openly to racial prejudice. Because we find that
the refusal to ask this question had the potential to interfere with defense
counsel's exercise of peremptory challenges in the selection of jurors, we
conclude that the trial judge acted improperly. However, under the standard
recently enunciated in Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct.
1629, 68 L.Ed.2d 22 (1981), we also must conclude that the error fails to
constitute reversible error.

12

Before Rosales-Lopez, federal courts were uncertain as to whether the refusal

to question prospective jurors about racial or ethnic prejudice constituted per se
reversible error. The Supreme Court, however, rejected the per se approach and
indicated that a case-by-case analysis of all circumstances is the proper inquiry.
451 U.S. at 192, 101 S.Ct. at 1636; see also Ristaino v. Ross, 424 U.S. 589, 96
S.Ct. 1017, 47 L.Ed.2d 258 (1976). In rejecting the per se reversible error rule,
the Court nevertheless clearly acknowledges the critical role of voir dire in
assuring a criminal defendant's sixth amendment right to an impartial jury and
the right to exercise preemptory challenges under Rule 24(b) of the Federal
Rules of Criminal Procedure. 451 U.S. at 188, 101 S.Ct. at 1634. Even though a
trial judge is afforded broad discretion when conducting voir dire, see
Fed.R.Crim.P. 24(a), special circumstances can give rise to constitutional
requirements with respect to pursuing the possibility of racial or ethnic bias.
451 U.S. at 189, 101 S.Ct. at 1634; see Ham v. South Carolina, 409 U.S. 524,
93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The Court, therefore, concludes:

13

In our judgment, it is usually best to allow the defendant to resolve this conflict
by making the determination of whether or not he would prefer to have the
inquiry into racial or ethnic prejudice pursued. Failure to honor his 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.

14

451 U.S. at 191, 101 S.Ct. at 1635.

15

After Rosales-Lopez, the better practice is to defer to the judgment of defense

counsel when a voir dire question concerning racial or ethnic prejudice is
requested unless, of course, there is "no rational possibility of racial
prejudice."1 Although the trial judge correctly assesses human nature in his
observation that most prospective jurors will not admit openly to personal
prejudices, we agree with defendants that a valuable credibility judgment can
be made from the way in which the question is answered. Such a judgment can
prove instrumental in the decision to exercise peremptory challenges. Because
the single question requested by defense counsel here would not have burdened
the court nor unduly delayed proceedings, it should have been asked. Of course
whether the trial court's refusal to ask the question constitutes reversible error is
quite another issue.

16

In order to reverse, we must find a reasonable possibility that racial prejudice

might have influenced the jury, and for guidance we turn to the analysis in
Rosales-Lopez indicating that both internal and external circumstances should
be examined for potential prejudice. By internal circumstances, we mean the

nature of case and the parties. By external circumstances, we mean the

potential for racial prejudice which further questioning may have disclosed. See
451 U.S. at 192-93, 101 S.Ct. at 1636.
17

Typically, reversal is proper when a defendant is accused of committing a

violent crime against a member of different racial or ethnic group and the voir
dire question is denied. 451 U.S. at 192, 101 S.Ct. at 1636; e.g., Aldridge v.
United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). In RosalesLopez, however, a defendant of Mexican descent was accused of participating
in a plan to smuggle illegal aliens into the United States. The crime was
nonviolent, the charges were brought by the Government, and no issues
involving racial prejudice were raised at trial. 451 U.S. at 192, 101 S.Ct. at
1636. The refusal of the trial court to ask veniremen whether the race or
Mexican descent of the defendant would influence their evaluation of the case
was held to be a non-reversible error. Id. Similarly, the case against Chisolm
and Groce lacks both the elements of violence and race differentiation which
might give rise to special circumstances requiring reversal. Chisolm and Groce
were charged with "victimless" drug violations by the Government and no
issues involving racial prejudice were raised at trial.2 Thus, as in RozalesLopez, nothing in the nature of the case gives rise to a reasonable possibility of
prejudice.

18

The second inquiry concerns the effectiveness of the trial court in reasonably
assuring that prejudice would be discovered if present. See United States v.
Delval, 600 F.2d 1098, 1102-03 (5th Cir. 1979); United States v. Nell, 526 F.2d
1223, 1229 (5th Cir. 1976). Although the trial court refused to question
veniremen directly about racial prejudice, steps certainly were taken to assure
that the ultimate panel would serve impartially. For example, the trial judge
emphasized in opening remarks that over the years everyone acquires certain
prejudices, and he went on to explain how such prejudices can impair one's
ability to serve on a jury fairly and impartially.3 After this explanation, each
juror was asked individually whether he or she could serve fairly and
impartially. Throughout this questioning both defendants were present in the
courtroom.

19

On appeal, Chisolm and Groce maintain that the racial climate in Florida at the
time of their trial necessitated direct voir dire questioning on the issue of racial
prejudice. Although we acknowledge that their fear of prejudice was not
irrational, supra note 1, defendants fail to demonstrate a reasonable possibility
that jurors might have been influenced by prejudice. First, defendants never
raised the issue of racial climate before the trial court; second, even had they
raised the issue, the district court judge sitting in Tampa is better able to gauge

Tampa's racial climate than we are on appeal, and finally, as discussed above,
the trial court did not ignore the issue of prejudice. Although the better practice
would have been to honor defendants' request, we cannot say that the trial court
abused its discretion, or that its refusal to ask the question created a reasonable
possibility that the verdict might have been influenced by prejudice.
ADMISSIBILITY
20

Defendants next challenge the admission of a marked nautical chart indicating

the waters surrounding Florida, Cuba, and parts of Mexico. The chart was
found partially opened on the galley table of the Shrimp Chaser I and was
introduced by the Government during the testimony of Ricky Jay Barrett, an
acknowledged nautical charts expert. A clear sheet of plastic was placed over
the chart, and Barrett was asked to trace the route of the Shrimp Chaser I on the
basis of pencil markings (fixes) appearing on the chart. Barrett opined that the
vessel traveled from southern Florida into the Caribbean and was heading back
to northern Florida. Defense counsel objected on hearsay grounds, arguing that
the Government failed to prove that the markings were made by either Chisolm
or Groce. Defendants argued further that they were denied their sixth
amendment confrontation rights because the pencil marks were not subject to
cross examination. The trial court concluded that the markings were not
inadmissible hearsay and we agree.

21

Despite protests to the contrary, defendants' real complaint is not with the
pencil markings on the chart, but rather with the interpretation given those
markings by the expert witness. Barrett is the one who determined which of the
many pencil marks were relevant in charting the anticipated course of the
Shrimp Chaser I. It was his diagram on the plastic overlay which was the
circumstantial evidence of defendants' intent to return to the United States. But
Barrett's determination hardly can be characterized as a random decision to
connect the dots. He predicted the course of the Shrimp Chaser I on the basis of
Chisolm's statements indicating the boat's date of departure and where
defendants were picked up by the Coast Guard. Most importantly, Barrett also
had access to another nautical chart found aboard defendants' boat with the
same tracklines heading toward northern Florida. In addition, hand-sketched
diagrams of the same track lines were found on the last written pages of two
spiral notebooks found in the Captain's quarters, and tacked to the chart board
in the Captain's quarters.

22

But defendants do not challenge Barrett's qualifications as an expert. Nor do

they deny that they had the opportunity to cross-examine him about his
conclusions. Defendants, therefore, were not denied their right to confront the

relevant witness. Nevertheless, defendants maintain that Barrett's determination

fundamentally is unsound because the Government failed to proffer sufficient
evidence to link Chisolm and Groce to the marks. We disagree. Once a prima
facie case of authorship was made by the Government, the ultimate issue of
authenticity properly was sent to the jury for resolution. Hale v. United States,
410 F.2d 147, 151-52 (5th Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 216, 24
L.Ed.2d 179 (1969); accord Palos v. United States, 416 F.2d 438, 440 (5th Cir.
1969); Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963), cert. denied,
377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). In light of the additional
sketches indicating defendants' intent to return to Florida, the other physical
evidence presented at trial, and the fact that the chart was found opened on the
galley table, we conclude that a prima facie case of authorship was satisfied.4
See Hale, 410 F.2d at 153 (circumstantial evidence of authorship is sufficient to
send the matter to the jury).
23

The district court concluded that the pencil marks are not hearsay because they
are not assertions. Under the Federal Rules of Evidence, no oral or written
expression is considered hearsay unless it was intended by its maker to be an
assertion concerning the matter sought to be proven. Fed.R.Evid. 801(a) (1),
(c). This is because when a declarant does not intend to make an assertion, his
sincerity generally is not at issue. As a result, the evidence is perceived to be
more trustworthy. See generally 4 J. Weinstein. Weinstein's Evidence P 801(a)
(01) (1981). Today, even implied assertions are admissible under this
reasoning. Id. at 801-55; e.g., United States v. Zenni, 492 F.Supp. 464
(E.D.Ky.1980). The test, therefore, is whether Chisolm or Groce intended the
marks to represent some statement of their intent to return to the United States.

24

The Government draws the analogy between the marks on the chart and
footprints. Under this theory, Chisolm and Groce marked the chart to indicate
their precise location so they would not get lost at sea. By simply noting their
current location, defendants make no assertion about their intent to return to the
United States. Moreover, their sincerity is not involved because they are not
likely to misplace themselves at sea. On the other hand, if Chisolm and Groce
sat down and plotted their course and intended to express their intent to return
to the United States, the marks could be viewed as assertions; however, such
assertions still would be admissible as a coconspirator's statement in furtherance
of the conspiracy, regardless of which defendant actually plotted the course.
See United States v. Postal, 589 F.2d 862, 886 n.41 (5th Cir.), cert. denied, 444
U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979).

25

Thus, we conclude that the chart, the marks, and the expert testimony are
admissible as circumstantial evidence of the conspiracy-relevant in that they

indicate that defendants had the means to accomplish the conspiracy, and
subject to the inference that they had the intent. In any event, the additional
circumstantial evidence evincing their intent to return to the United States
would render any error in admitting the marked chart harmless.
SUFFICIENCY OF THE EVIDENCE
26

The jury's verdict against Chisolm and Groce must be sustained "if there is
substantial evidence, taking the view most favorable to the Government to
support it" Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86
L.Ed. 680 (1942). The standard we apply is "whether a reasonably minded jury
must necessarily entertain a reasonable doubt as to the defendants' guilt."
United States v. Giani, 678 F.2d 956, 959 (11th Cir. 1982); see also United
States v. Davis, 679 F.2d 845, 852 (11th Cir. 1982).

27

Defendants allege that the evidence against them is deficient in two respects.
Initially, they argue that no proof was offered to demonstrate an actual
agreement between Chisolm and Groce to conspire to violate federal drug laws.
However, such direct proof is unnecessary to sustain a conviction. When
crewmen are found aboard a vessel on which the presence of contraband is
obvious, a conspiracy may be inferred. United States v. Julio-Diaz, 678 F.2d
1031, 1033 (11th Cir. 1982) (per curiam); United States v. Ricker, 670 F.2d
987, 989 (11th Cir. 1982). The fact that Groce was able to throw some of the
marijuana overboard does not weaken this inference. First, Chief Turbin
witnessed the dumping, and second, traces of marijuana were found throughout
the ship.

28

Defendants also charge that the Government failed to proffer sufficient proof of
intent to distribute the marijuana in the United States. The inference that
defendants intended to return to the United States with their cargo, however,
may be drawn reasonably from the circumstantial evidence presented at trial.
As discussed above, all of the charts and diagrams indicate Florida as the
ultimate destination of the Shrimp Chaser I. Chisolm, who captained the boat,
also told officials that he intended to return to Key West, Florida. In addition,
both defendants are United States citizens, and the Shrimp Chaser I had a
Florida registration and a Florida shrimping permit on board. When combined
with the one half of a Colombian peso, the testimony indicating the use of such
pesos as identification devices among drug smugglers, and the presence of the
marijuana itself, we are persuaded that the jury was presented with sufficient
circumstantial evidence to find a conspiracy.

VOLUNTARINESS INSTRUCTION

29

Finally, defendants contend that the trial court erred in failing to instruct the
jury about the voluntariness of three relevant statements made by Chisolm after
his capture: (1) that he was captain of the Shrimp Chaser I; (2) that the boat left
Key West, Florida on July 3, 1979; and (3) that he intended to return to Key
West. On appeal, defendants argue that these statements constitute a confession
and that the jury should have been instructed on the issue of voluntariness
under 18 U.S.C. 3501(a) (1976) and the Omnibus Crime Control and Safe
Street Act of 19685 and the weight which should be accorded to Chisolm's
statements.

30

Defendants, however, neither requested a voluntariness instruction nor did they

object to the trial court's failure to instruct the jury on the issue. Failure to
object in this context ordinarily constitutes a waiver, see, e.g., United States v.
Gonzalez, 548 F.2d 1185 (5th Cir. 1977), unless the circumstances indicate that
the failure to instruct was plain error on the part of the trial court.
Fed.R.Crim.P. 30, 52(b); e.g., United States v. Renteria, 625 F.2d 1279 (5th
Cir. 1980) (defendant's testimony clearly raised the issue of involuntariness).
Yet, even if the trial court is guilty of plain error, the failure to instruct the jury
on the issue of voluntariness will not form the basis for reversal if it is found
harmless and nonprejudicial. See United States v. Fuentes, 563 F.2d 527 (2d
Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); United
States v. Sauls, 520 F.2d 568 (4th Cir.), cert. denied 423 U.S. 1021, 96 S.Ct.
459, 46 L.Ed.2d 393 (1975).

31

We conclude that the trial court was not obligated to give a jury instruction
pursuant to section 3501(a) because the voluntariness of Chisolm's statements
never arose as a genuine issue of fact at trial. See United States v. Maher, 645
F.2d 780, 783 (9th Cir. 1981); United States v. Fera, 616 F.2d 590, 595 (1st Cir.
1980), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1981);
United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir.), cert. denied, 435 U.S.
973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978). At one point, during defense
counsel's cross-examination, Chief Turpin established that Chisolm and Groce
were transported to St. Petersburg in their underwear, which was all that they
were wearing at the time they were apprehended. Moreover, they sat
handcuffed on the sun deck of the Point Swift for the duration of the eight hour
journey. The issue of voluntariness, however, was not pursued, probably
because Chisolm did not admit to anything during this voyage. Chisolm's
acknowledgement that he was captain of the ship was made when Barts and the
other Coast Guard crewmembers first boarded the Shrimp Chaser I, and his
statements concerning the boat's date of departure and expected destination
were made after the journey while he was clothed, and after he again was
informed of his right to remain silent. We therefore hold that the trial court's

failure to instruct the jury in the issue of voluntariness was not plain error. And
in light of the overwhelming evidence supporting conviction, if any error
occurred it was harmless.
32

AFFIRMED.

Because of the importance of maintaining an atmosphere of impartiality in the

courtroom, the general rule is that this type of voir dire request should be
granted whenever the defendant can point to a "meaningful ethnic difference
between himself and the victim." 451 U.S. at 191 n.7, 101 S.Ct. at 1635 n.7.
Although Groce and Chisolm, charged with federal drug violations, cannot
point to such an ethnic difference, they do point to a highly charged racial
climate in Florida. Just three months before their trial, an all white jury in
Tampa, Florida, acquitted white police officers charged with beating to death a
black insurance executive in Miami, Florida. The trial, known as the McDuffee
case, sparked race riots in Miami and racial tension throughout Florida.
Although we do not maintain that every minority defendant in Florida now is
entitled to question the underlying prejudices of prospective jurors because of
this incident, we do recognize that the proximity in time between the McDuffee
case and this trial, coupled with the extent of racial tension, created a rational
possibility of prejudice, and that defense counsel's request was not irrational.
This determination, however, goes only to whether the question should have
been asked and not to whether failure to honor the request justifies a reversal

On appeal, defendants suggest that because the jury ultimately was all white
the possibility for prejudice was real. As they note in their own brief, however,
if any prejudice would arise in a case of this type it would concern attitudes
towards marijuana use, a bias which knows no racial bounds. Appellants' Brief
at 16. Moreover, the issue of attitudes toward drug use was explored by the trial
court during voir dire with at least one prospective juror being dismissed for
cause on this basis

The court's explanation utilized an analogy to ice cream flavors:

For example, if-if you like ice cream, some of you may like vanilla but not
strawberry, for no good reason. You may have eaten too much strawberry as a
child or something. But, if that is a fact, you are prejudiced against strawberry
ice cream and if this were a case about icer (sic) cream, which it isn't, you
would have a difficult time serving fairly and impartially as a juror.
Now, none of you or very few of you-I don't see any gray beards or very elderly

people, but you all accumulated have acquired considerable experience,

considerable amount of life to this point and so, you have accumulated the scars
that come with having lived, good and bad, and so, you may have some
prejudices which might make it difficult for you to be fair and impartial.
What we want is a group of people who without any previous prejudice can
come in here and fairly and impartially try the issues of fact in this particular
case.
Record, vol. 3 at 14-15.
4

Authorship, in this context, refers to whether or not the pencil marks can be
attributed to Chisolm and Groce. See Carbo, 314 F.2d at 743

18 U.S.C. 3501(a) reads as follows:

(a) In any criminal prosecution brought by the United States or by the District
of Columbia, a confession, as defined in subsection (e) hereof, shall be
admissible in evidence if it is voluntarily given. Before such confession is
received in evidence, the trial judge shall, out of the presence of the jury,
determine any issue as to voluntariness. If the trial judge determines that the
confession was voluntarily made it shall be admitted in evidence and the trial
judge shall permit the jury to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give such weight to the confession as
the jury feels it deserves under all the circumstances.