United States v. Hunt

• Decision Date: 07 March 1967
• Docket Number: Crim. No. 66-66-SA.
• Citation: 265 F. Supp. 178
• Parties: UNITED STATES of America, Plaintiff, v. Howard HUNT et al., Defendants.
• Court: U.S. District Court — Western District of Texas

265 F. Supp. 178

UNITED STATES of America, Plaintiff, v. Howard HUNT et al., Defendants.

Crim. No. 66-66-SA.

United States District Court W. D. Texas, San Antonio Division.

March 7, 1967.

Ernest Morgan, U. S. Dist. Atty., and Jamie Boyd, Asst. U. S. Dist. Atty., for the United States.

Warren Burnett, Odessa, Tex., and Luther E. Jones, Jr., Corpus Christi, Tex., for defendant, Howard Hunt.

MEMORANDUM AND RULING ON MOTION OF THE DEFENDANT HUNT TO QUASH THE JURY PANEL.

GRAVEN, Senior District Judge (by assignment).

An indictment was returned against the defendant, Howard Hunt, an attorney, and others charging them with conspiring to intimidate a prospective witness in a narcotics case. On his motion, his trial was severed from the trial of the other defendants. The case as to the defendant, Howard Hunt, hereinafter referred to as the defendant, came on for trial with jury on January 16, 1967. After the drawing of the jurors and after those drawn had been passed for cause and just prior to the exercising of peremptory challenges, the attorneys for the defendant requested a recess and in the absence of the jury stated that they had not theretofore had the opportunity to familiarize themselves with the composition of the jury panel and that the composition of the jury as just disclosed showed that it was an invalid panel. It was then agreed by the Court and the attorneys for the Government and the defendant that the hearing on the challenge would be postponed pending the outcome of the trial. On January 19, 1967, the jury returned a verdict finding the defendant guilty of the offense charged. Thereafter the defendant filed a motion in writing asking that an order be entered quashing the jury panel and adjudging invalid the jury chosen in the case. In that motion the defendant stated:

"Defendant's grounds for this motion are, that the clerk and the jury commissioner in compiling the jury list that is the source of such panel violated the federal statutory scheme applicable to jury selection by applying statutorily incorrect standards to prospective jurors, and that the method of obtaining names of prospective jurors for such list violated such scheme."

A hearing extending over three days was then held on the motion at which the parties presented a large amount of evidence.

The San Antonio Division consists of the following fourteen counties: Atascosa, Bandera, Bexar, Comal, Dimmit, Frio, Gonzales, Guadalupe, Karnes, Kendall, Kerr, Medina, Real and Wilson. The City of San Antonio is situated in Bexar County and that county constitutes a metropolitan area. Most of the other counties in the San Antonio Division are counties which are classified as predominantly rural areas. According to the estimates of the Bureau of Census, the present population of Bexar County is 836,363. The present number of its registered voters is 200,800. The population of Bexar County constitutes around seventy-five percent of the population of the San Antonio Division. The jury panel for this case contained jurors in varying numbers from thirteen of the counties. There were no jurors from one predominantly rural county. The overwhelming number of the jurors were from Bexar County. There is no claim on the part of the defendant that there was any serious disproportion between the number of members on the present jury panel as between Bexar County and the other counties.

In order to focus attention on the questions involved in the challenge, it would seem to be desirable to note what questions are not involved. While, as noted, there were no jurors from one of the rural counties in the Division, it appears that names of prospective jurors from that county were in the so-called master jury box and that the absence of jurors from that particular county was due to the luck of the drawing.

There is not in issue in this case the matter of the violation of Subsection (c), Section 1863, Title 28 U.S.C.A., providing that no person shall be excluded from jury service because of race or color. Counsel for the defendant stated of record, in substance, that they were earlier of the view that discrimination may have prevailed in jury selection in this Division as to Negroes but the number of Negroes appearing on the panel "diluted" any contention on their part that Negroes were not proportionately represented on this particular panel. The reasons therefor next appear. According to the estimates of the Bureau of Census, the present number of Negroes in Bexar County is 50,182, or approximately six percent of the population of the county. There are no notations as to race as to the jurors in the so-called master jury box and the race of a juror is not brought out in voir dire examination or in any other way. The only way in which the presence of Negroes on a particular jury panel can be noted is by observation at the time the jurors report for service. On the jury that tried this case there were three Negroes and, therefore, they constituted twenty-five percent of the jury. There were two other Negroes on the panel. Apparently all the Negroes were from Bexar County. It would appear, in fact, that the Negroes were proportionately overrepresented on this particular panel. It is of interest to note that in the case of Brooks v. Beto (5th Cir. 1966), 366 F.2d 1, it was held that if there was a proper representation of Negroes on the particular jury panel with which the defendant was concerned, his constitutional rights were not violated even though such proper representation was achieved by the purposeful inclusion of Negroes. In the present case there is no proof or even suggestion that Negroes were purposely included on the particular panel from which the jury was selected that tried the defendant. The number of Negroes on the jury panel in this case would more strongly indicate that the sources made use of by the clerk and jury commissioner for the selection of Negroes for jury service were adequate. There is also ever present the luck of the drawing.

The attack of the defendant as to the validity of the jury panel in his case is related to Bexar County.

The challenges of the defendant are two in number. Those challenges of the defendant are largely based upon the case of Rabinowitz v. United States (5th Cir. 1966), 366 F.2d 34. That case and the companion case of Jackson v. United States were heard together en banc by eight judges. Judge Rives, a retired Circuit Judge, was ineligible to participate in the Rabinowitz case but was eligible to participate in the Jackson case. He wrote the opinion in the Jackson case which was adopted as the opinion of the Court. Judge Brown concurred specially. Judge Bell concurred in part and dissented in part. Judge Gewin concurred in the opinion of Judge Bell. Judge Coleman concurred in part and dissented in part. For convenience, the two cases will be referred to as the Rabinowitz case or Rabinowitz. Both cases centered around the matter of discrimination against Negroes in the matter of jury lists. There were two questions involved in Rabinowitz. The first question related to the matter of jury qualifications. In the majority opinion it was held that the clerk and jury commissioner had improperly added to the statutory qualifications for jurors their "own ideas as to good character, intelligence and ability to `understand the cases that are tried in court.'" It was stated (p. 51):

"* * * Instead of lowering the standards to the prescribed federal level, they have artificially raised the standards; in so doing they have eliminated many Negroes otherwise eligible to serve."

The other question involved in Rabinowitz was the question as to the adequacy of the sources utlilized by the clerk and jury commissioner in compiling their jury lists. In the majority opinion (p. 60), it was stated that those responsible for compiling the jury lists had assembled the lists from "grossly inadequate sources." In that case the Government in a supplemental brief stated that the evidence showed the jury list was made up in 1953 and was revised in 1959 after which 557 new names were added of which only a few were Negroes. The Government suggested that the convictions be reversed for new trials. The Court reversed the convictions and directed that the indictment be dismissed. Both cases involved challenges to the grand jury list and the trial jury list. In view of the concession made by the Government, all the judges were in agreement that the convictions should be reversed. Judges Bell, Gewin and Coleman dissented from the majority holding as to the matter of jury qualifications. The holding of the majority would seem to be encompassed in the following portion of the majority opinion (p. 55):

"In compiling the jury lists both the need for competency and the need for a fair cross-section of the community are important elements. In order to have a practical system of compiling jury lists and to insure that literate jurors are selected, some persons must be excluded. But the desire for competency must not be pursued to the extent that a fair cross-section is prevented. In promulgating orders under section 1863, the district court must be aware of this relationship and realize that Congress in prescribing the qualifications for jurors has attempted to insure a fair cross-section and has severely limited the court's discretion. The line of demarcation is clear — a person need only be able to read, write, speak, and understand English, he need not enjoy that degree of excellence found only among the more fortunate classes of our society. Any attempt to gain competent jurors that would result in a less representative cross-section than a selection drawn from the statutorily qualified pool would destroy the `right' to serve on juries which Congress intended to confer, as well as destroy the broad based cross-section Congress has designated for federal juries."

In addition to the English language qualification referred to by the Court...