U.S. v. Best

• Decision Date: 07 August 2002
• Docket Number: No. 2:00-CR-171.,2:00-CR-171.
• Citation: 214 F.Supp.2d 897
• Parties: UNITED STATES of America, Plaintiff, v. Jason BEST, Defendant.
• Court: U.S. District Court — Northern District of Indiana

214 F.Supp.2d 897

UNITED STATES of America, Plaintiff, v. Jason BEST, Defendant.

No. 2:00-CR-171.

United States District Court, N.D. Indiana, Hammond Division.

August 7, 2002.

Clark W. Holesinger, Portage, IN, Thomas W. Vanes, Merrillville, IN, for defendant.

Gary T. Bell, United States Attorneys Office, Hammond, IN, for U.S.

ORDER

LOZANO, District Judge.

This matter is before the Court on Defendant's July 15, 2002, oral motion to quash the petit jury venire. The Court has reviewed: (1) Defendant Best's Brief in Support of Motion to Quash Petit Jury Venire, filed July 16, 2002; (2) the Government's response, filed July 18, 2002; and (3) Defendant's Response Jury Venire [sic], filed July 22, 2002. For the reasons set forth below, Defendant's oral motion to quash the petit jury venire is DENIED.

BACKGROUND

After the petit jury venire ("venire") for this case was sworn in on July 15, 2002, and after the first 12 venire members were seated in the jury box for the start of voir dire, Defendant, who was acting pro se (but had the assistance of standby counsel) approached the bench at a side bar conference and offered a general Sixth Amendment objection to the composition of the venire. The 42-member venire included two African-Americans. The Court informed Defendant that such a challenge required him to offer evidence of, among other things, a systematic exclusion of African-Americans. Defendant had no such proof readily available. In recognition of the leeway Defendant was entitled to as a pro se litigant, the Court offered Defendant the opportunity to present evidence and law in support of his objection at a later time.¹ See Cummings v. Sch. Dist. of Lincoln, County of Lancaster, State of Neb., 638 F.2d 1168, 1169 (8th Cir.1981) (district court "appropriately gave [plaintiff] considerable latitude with regard to the examination of witnesses and the introduction of evidence in deference to her decision to proceed pro se at trial").

Later that day, after the conclusion of voir dire but before the jury was sworn in and as a courtesy to Defendant, the Court called its jury administrator, Ms. Sue Alcala, to testify regarding Defendant's concerns about how the venire was selected. Defendant, still acting pro se with the assistance of standby counsel, examined Ms. Alcala for approximately 15 minutes.² Among other things, Ms. Alcala testified that: (1) she did not know the racial make-up of the venire before its members arrived at the courthouse; (2) at the Court's request, she made telephone calls to each of the venire members who did not show up at the courthouse as scheduled on the morning of July 15, 2002 (the "no-shows"); and (3) she was able to reach some of the no-shows by telephone, and this resulted in two of the no-shows coming to court in the afternoon.³

The following day, Defendant filed a brief in support of his motion to quash the venire. Citing the Jury Service and Selection Act of 1968, 28 U.S.C. section 1861, et seq., and the Sixth Amendment, Defendant asked this Court to quash the venire from which his jury was chosen. Defendant's 3-page brief cites three cases, includes a 1-paragraph recitation of facts, and makes unsupported assertions regarding census data.⁴ In sum, Defendant complains that the venire did not include a fair cross-section of African-Americans and that the petit jury venire members summoned to the courthouse on July 15, 2002, were first offered to the parties in United States v. Suggs, No. 2:01-CR-98. Defendant asserts that if the jurors selected for Suggs had instead been available for his venire, the venire would have included more than two African-Americans. Defendant also argues that the Court's failure to force the appearance of the 14 no-shows contributed to the underrepresentation of which he complains.

DISCUSSION

Defendant's claims under both the Jury Service and Selection Act (the "Act") and the Sixth Amendment are without merit.

The Act

In order to pursue a claim under the Act, a defendant must make a motion "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds" for his motion. 28 U.S.C. § 1867(a). A defendant is only entitled to secure the testimony of a jury administrator in support of his motion if that motion "contain[s] a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions off [the Act]." 28 U.S.C. § 1867(d).

Here, Defendant's oral motion made after the venire had been sworn in but before questioning began barely satisfies the Act's timing requirement.⁵ However, Defendant has not complied with the Act's requirement that he provide a sworn statement of facts which, if true, would constitute a substantial failure to comply with the Act's provisions. Defendant provided no such sworn statement on July 15, 2002, and no sworn statement appeared in the briefs he filed on July 16, 2002, or July 22, 2002. Nevertheless, the Court allowed Defendant to question its jury administrator on July 15, 2002, as a courtesy to Defendant, who was pro se at the time. A defendant who fails to comply with the Act's procedural requirements cannot pursue relief under the Act. United States v. Phillips, 239 F.3d 829, 841 (7th Cir.2001) (failure to make timely motion and provide sworn statement of evidence precluded statutory challenge); United States v. Young, 38 F.3d 338, 342 (7th Cir.1994) (statutory challenge waived by failing to raise objection in timely manner); United States v. Grose, 525 F.2d 1115, 1119 (7th Cir.1975) (failure to make timely motion and provide sworn statement of evidence precluded statutory challenge); see also United States v. Percival, 756 F.2d 600, 613 (7th Cir.1985) (defendant not entitled to evidentiary hearing where he failed to submit sworn statement of facts in support of his challenge to composition of grand jury). On this basis alone, the Court could deny Defendant's request for relief under the Act.

Even if Defendant had complied with the Act's procedural requirements, he would not be entitled to relief under it. The Act provides that "no citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. § 1862. The Act requires district courts to employ a "random selection method from the district['s] or division['s] registered voter or actual voter lists" when generating the source list used to summon potential jurors. Phillips, 239 F.3d at 841 (citing 18 U.S.C. § 1863(b)(2)). As the legislative committee reports state:

If the voter lists are used and supplemented where necessary, and if the procedures outlined in the bill are otherwise rigorously followed, it is no departure from the standards of the legislation that the qualified jury wheel, the venire or array, or the jury itself, may not reflect a community cross-section. The act ... does not require that at any stage beyond the initial source list the selection procedure shall produce groups that accurately mirror community makeup. Thus, no challenge lies on that basis.

Id. (quoting S. REP. No. 891, at 17 (1967); H.R. REP. No. 1076, at 5 (1968), reprinted in 1968 U.S.C.C.A.N. 1792, 1794) (emphasis added). In other words, as long as a district court utilizes a procedure for selecting jurors which complies with the random selection method required by the Act, the resulting venire need not reflect the composition of the community from which it was drawn. United States v. Duff, 76 F.3d 122, 125 (7th Cir.1996) (noting that "[s]ome panels will have an unusually low (or high) proportion of one group or another," but because "`defendants are not entitled to a jury of any particular composition,' the makeup of any given venire is not significant, provided all rules for selection have been observed") (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

Here, thanks to a recent Seventh Circuit case which examined the Amended Jury Selection Plan (1997) for the Northern District of Indiana ("Amended Plan"), there can be no doubt that this Court "clearly follows the process and procedures recommended by the Act." Phillips, 239 F.3d at 841. "The Amended Plan only serv[es] to show the district's compliance with the provisions and procedure of the Act." Id. Even when given an opportunity to question this Court's jury administrator, Defendant failed to call into doubt this Court's compliance with the amended plan. Duff, 76 F.3d at 125 (rejecting challenge under the Act where defendant did not use his opportunity to discover whether district court was using proper procedures and, therefore, "cannot complain about the venire in this case"). Nothing requires the Court to grant Defendant relief under the Act "in the absence of any showing that there was a substantial failure to comply with the provisions [the Act]." United States v. Koliboski, 732 F.2d 1328, 1331 (7th Cir.1984). Therefore, Defendant is not entitled to relief under the Act.

Sixth Amendment

Defendant next challenges the racial composition of the venire under the Sixth Amendment's guarantee that juries be selected from a fair cross-section of the community. To establish a prima facie case that the fair cross-section requirement has been violated, a defendant must show that: (1) the group allegedly excluded is a distinctive part of the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); United States v. Guy, 924 F.2d 702, 705 (7th Cir.1991). Once a defendant makes a prima facie showing regarding these elements, the...