267 F.3d 231 (3rd Cir. 2001), 00-2203, United States v Weaver

Docket Nº:00-2203
Citation:267 F.3d 231
Case Date:September 21, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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267 F.3d 231 (3rd Cir. 2001)




No. 00-2203

United States Court of Appeals, Third Circuit

September 21, 2001

Argued March 15, 2001

On Appeal from the United States District Court for the Western District of Pennsylvania District Judge: Honorable Sean J. McLaughlin (D.C. Criminal No. 99-CR-00002E)

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Thomas W. Patton, Esq. [argued] Office of Federal Public Defender 1001 State Street 1111 Renaissance Centre Erie, PA 16501, Counsel for Appellant Rudolph Weaver

Bonnie R. Schlueter, Esq. [argued] Office of United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219, Counsel for Appellee United States of America

Before: Rendell, Ambro, and BRIGHT,[*] Circuit Judges


Rendell, Circuit Judge

Rudolph Weaver appeals his armed robbery conviction on the grounds that the jury pool in the Erie Division of the Western District of Pennsylvania, from which the jury that convicted him was chosen, did not reflect a fair cross section of the community as required by the Sixth Amendment and the Jury Service and Selection Act. Weaver also challenges other rulings of the District Court based on the Jencks Act and procedures he claims are required in order to sentence him under the "Three Strikes" statute, 18 U.S.C. S 3559 (c)(1). The District Court found no violation of Weaver's constitutional or statutory rights. We will affirm.

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On December 21, 1998, Weaver entered the First National Bank in Erie, Pennsylvania, waving a gun and demanding the cash in the tellers' drawers. He threatened to shoot the tellers if they did not comply with his orders. The tellers emptied the contents of their drawers into shopping bags, and Weaver left with approximately $20,000. Later that day, bank surveillance photographs taken during the robbery were shown on news programs, and a former classmate of Weaver's, Mary Giulianelli, communicated with the F.B.I. immediately after the evening news to identify Weaver as the man shown in the photos. The following day, Agent Van Slyke showed a photo array to Rosalie Landon, one of the three tellers on duty that day. Coincidentally, Landon had helped Weaver open an account at the bank several months before the robbery. She identified Weaver as the robber.

In January 1999, a grand jury returned a two-count indictment charging Weaver with bank robbery in violation of 18 U.S.C. S 2113(a) and use of a dangerous weapon in connection with a bank robbery in violation of 18 U.S.C. 2113(d). Weaver was arrested on March 25, 1999. On February 10, 2000, as required by 18 U.S.C. S 851(a), the government filed notice of its intent to seek a mandatory life sentence pursuant to 18 U.S.C. S 3559(c). The case proceeded to trial on March 21, 2000. The evidence was overwhelming: Weaver's girlfriend, Ethel Mae Wheat, testified that Weaver told her that he had robbed the bank and showed her a briefcase containing several thousand dollars. In addition, Wheat's son testified that he owned a gun similar to the one in the photographs, which had been missing since the time of the bank robbery. They also identified certain clothing belonging to Weaver, which was the clothing identified by witnesses as having been worn by the robber. In addition, three of Weaver's acquaintances testified that they believed the man in the surveillance photographs to be Weaver. On March 24, 2000, a jury found Weaver guilty on both counts. In an amended judgment of sentence entered on July 24, 2000, the District Court sentenced Weaver to life in prison and ordered him to pay restitution in the amount of $31,051.30.

The District Court had jurisdiction over Weaver's criminal prosecution pursuant to 18 U.S.C. S 3231. We have appellate jurisdiction pursuant to 28 U.S.C.S 1291 and 18 U.S.C. S 3742. We review the District Court's findings of fact for clear error, and its legal conclusions de novo. United States v. Scott, 223 F.3d 208, 210 (3d Cir. 2000). Whether a defendant has been denied his or her right to a jury selected from a fair cross section of the community is a mixed question of law and fact, and is reviewed de novo. United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998); United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985); see also United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995) (holding that constitutional challenges to jury selection process are reviewed de novo).


A. Challenge to Fair Representation in the Jury Pool

Weaver challenges his conviction on the grounds that he was denied his right to a jury drawn from a fair cross section of the community as required by the Sixth Amendment's fair cross section provision1

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and the Jury Selection and Service Act of 1968, which codifies the Sixth Amendment right. He argues that the pool from which his jury was selected underrepresented African-Americans and Hispanics due to its exclusive reliance on voter registration lists.

"[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.... [I]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." Taylor v. Louisiana, 419 U.S. 522, 527 (1975) (internal quotation marks omitted). This requirement of a fair cross section is not without substantial limits -- it does not guarantee that juries be "of any particular composition." Id. at 538. All that is required is that "the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Id. (emphasis added). The objectives of the fair cross section requirement include avoiding "the possibility that the composition of the juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community" and avoiding the "appearance of unfairness" that would result from excluding "large groups of individuals, not on the basis of their ability to serve as jurors, but on the basis of some immutable characteristic such as race, gender or ethnic background." Lockhart v. McCree, 476 U.S. 162, 175 (1986).

The Jury Selection and Service Act ("The Act") provides as follows:

[A]ll litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.

28 U.S.C. S 1861 (West 2001). The Act "seeks to ensure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." United States v. Calabrese, 942 F.2d 218, 220 (3d Cir. 1991) (internal quotation marks omitted). Claims under the Act are analyzed using the same standard as a Sixth Amendment fair cross section claim. See United States v. Test, 550 F.2d 577, 584-85 (10th Cir. 1976) (en banc) (Act's fair cross section standard is "functional equivalent of the constitutional `reasonably representative' standard").

When enacted, the Act required "[e]ach United States district court [to] devise and place into operation a written plan for random selection of... petit jurors that[would] be designed to achieve the [above-mentioned] objectives of sections 1861 and 1862." 28 U.S.C. S 1863(a) (West 2001). Congress determined that the principal source of names for the random selection should be either "the voter registration lists or the lists of actual voters." Id. at S 1863(b)(2). The Act also provided: "The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and

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protect the rights secured by sections 1861 and 1862...." Id.

In order to establish a prima facie violation of the fair cross section requirement of the Sixth Amendment and the Act, the defendant must demonstrate: (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in jury venires is not "fair and reasonable" in relation to the number of such persons in the community; and (3) the under-representation is caused by the "systematic exclusion of the group in the jury selection process." Duren v. Missouri, 439 U.S. 357, 364 (1979). A defendant need not show discriminatory intent. See id. at 368 n. 26 ("In contrast [to an Equal Protection claim], in Sixth Amendment fair cross-section cases, systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section.") And, "once a defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn a fair cross section of the community, it is the State that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest." Id. at 368.

The plan approved by the Western District of Pennsylvania at the time of the jury selection in Weaver's case, and currently in effect, employs voter registration lists as the exclusive source from which it summons potential jurors for service. Juror names are drawn at random from the voter registration lists of the seven counties in the Erie Division and placed into a master jury wheel ("master...

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