On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Criminal No. 87-00218-03.
Sloviter, Greenberg and Cowen, Circuit Judges.
COWEN, Circuit Judge.Appellant Barry K. Urian, Sr. appeals his convictions and sentences for distribution and conspiracy to distribute methamphetamine. His primary contention is that the district court erred in not asking prospective jurors certain voir dire questions proposed by his trial counsel. While the district judge's failure to ask these questions may have been error, we hold that Urian waived his ability to raise this issue on appeal because his trial counsel did not object to the district court's voir dire. Since this alleged error does not rise to the level of plain error, we will affirm Urian's convictions.
Urian also asserts that the district judge erred when he relied upon a pre-sentence report in sentencing Urian without resolving disputes regarding certain facts in the report. We agree that the district judge did not comply with Fed.R.Crim.P. 32(c)(3)(D) and will remand this case to the district court in order that the judge may make the findings or determination required by that rule.
Urian was convicted, following a jury trial, of one count of conspiracy to distribute methamphetamine,in violation of 21 U.S.C. § 846 (Count 1), and two counts of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Counts 8 and 9). He was sentenced to a term of imprisonment of six years on Count 1, one year and a special parole term of three years on Count 8, and one year and a special parole term of three years on Count 9, sentences to run consecutively. A special assessment of $50.00 was also imposed on each count. Urian appeals his sentence and conviction to this Court.
Urian's primary contention is that the district court erred when it did not ask prospective jurors several of the questions Urian's trial counsel submitted as proposed voir dire questions to the district judge.*fn1 A district judge's refusal to ask questions of the sort propounded by Urian's counsel, such as a question asking whether the prospective juror or a family member had ever been the victim of a crime, can constitute reversible error. See United States v. Poole, 450 F.2d 1082, 1083-84 (3d Cir. 1971)(refusal to ask jurors requested question "Have you or any member of your family ever been the victim of a robbery or other crime?" was error entitling defendant to new trial); see also Jacobs v. Redman, 616 F.2d 1251, 1256-57 (3d Cir.)(noting that Poole was predicated upon supervisory powers of the federal court, not a federal constitutional right, and did not apply to state conviction before court on petition for habeas corpus), cert. denied, 446 U.S. 944, 64 L. Ed. 2d 799, 100 S. Ct. 2170 (1980).
In this case, however, it is our opinion that this issue was not properly preserved for appeal. Urian's counsel made no specific objection when the district judge did not ask the requested questions, and he did not even make a general objection when the judge did not ask any of the questions which Urian now contends he erred in not asking. The closest example to an objection in the record is this inquiry, which took place after the judge had asked a number of questions of prospective jurors:
MR. BRISKIN [Urian's trial counsel]: Your Honor, we had also submitted certain questions for voir dire. I take it that if they are not asked by that you are not going to, is that correct?
THE COURT: Yes. Thank you, Mr. Briskin.
This inquiry is insufficient to satisfy the requirement of Fed.R.Crim.P. 51 that a party "make known to the court the action which that party desires the court to take or that party's objection to the action of the court and the grounds therefor." As we have noted, "the [trial] court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived." United States v. Baylin, 696 F.2d 1030, 1036 (3d Cir. 1982). Defendant's counsel in this case failed to put the court and government counsel on notice that he objected to the Court's voir dire, and we find that he waived his present claim. See Government of the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir. 1986)(defendant's failure to raise timely objection waived claim that prosecutor improperly used ...