United States v. Cohen, Crim. No. 26402

Citation275 F. Supp. 724
Decision Date27 October 1967
Docket Number27509,27568,27565,27439,27601,27102,27584,27323,27622.,Crim. No. 26402,27533,27435,27594,27135,27561
PartiesUNITED STATES of America v. Murray COHEN and Bette Louise Renner. UNITED STATES of America v. BALTIMORE ALUMINUM PRODUCTS CORPORATION, Nicholas Schipani and Granville Palmer Berryman. UNITED STATES of America v. James C. PRICE. UNITED STATES of America v. Willie SPEIGHT and Frank J. Wright. UNITED STATES of America v. James C. PRICE, James Carl Hollingsworth and Patricia Lee Hollingsworth. UNITED STATES of America v. PIONEER BUILDERS, INC. and Joseph B. Bahen, Jr. UNITED STATES of America v. John FELKNER, Jr. and Stanley Leonard Sonner (two cases). UNITED STATES of America v. John Joseph DiTOMMASO. UNITED STATES of America v. Charles Forest WAUGAMAN. UNITED STATES of America v. Charlie Lenwood BUTLER. UNITED STATES of America v. Harry FRID. UNITED STATES of America v. William Vincent BROOKHART, Jr. UNITED STATES of America v. Charles Francis FRAZIER. UNITED STATES of America v. Clifton Amos REED.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)

COPYRIGHT MATERIAL OMITTED

Arthur G. Murphy, First Asst. U. S. Atty., Thomas P. Curran, Asst. U. S. Atty., for plaintiffs in all cases.

Arnold M. Weiner, Baltimore, Md., for defendants in Criminal Nos. 26402, 27102, 27323, 27509, 27533, 27561 and 27584.

Arnold M. Weiner and Robert E. Cahill, Baltimore, Md., for defendants in Criminal Nos. 27135 and 27435.

C. M. Zacharski, Jr., Herbert R. O'Conor, Jr. and Francis X. Pugh, Baltimore, Md., for defendants in Criminal No. 27439.

Decatur H. Miller and Albert S. Barr, III, (court-appointed) Baltimore, Md., for defendant in Criminal No. 27565.

Harold Buchman (court-appointed), Baltimore, Md., for defendant in Criminal No. 27568.

Robert E. Cahill (court-appointed), Baltimore, Md., for defendant in Criminal No. 27594.

Alan H. Murrell and James W. Murphy, Baltimore, Md., for defendant in Criminal No. 27601.

Joseph Rosenthal and Norman N. Yankellow, Baltimore, Md., for defendant in Criminal No. 27622.

Before THOMSEN, Chief Judge, and NORTHROP and KAUFMAN, District Judges.

FRANK A. KAUFMAN, District Judge.

In these criminal cases, the defendants have filed motions to dismiss, alleging that the indictments were returned by grand juries constituted in violation of 28 U.S.C. § 18611 and of the Fifth and Sixth Amendments to the Constitution of the United States. In most of these cases, counsel contend, in almost identical language, that the indictment was returned by a grand jury which "was selected improperly pursuant to the so-called `key man' system, and in accordance with standards not authorized by law." Counsel cite 28 U.S.C. § 1861, Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966), and Hart, The Case for Federal Jury Reform, 53 A.B.A. Journal 129 (1967).2

In one of the cases, the defendant Butler has questioned not only the method of selection of the grand jury which indicted him but also selection procedures in this Court with respect to petit juries.3 This Court, in this opinion, will address itself to the attack upon the selection procedures in connection with both grand and petit juries.4

Counsel for defendants requested, and were given the opportunity, to examine the records of the Clerk and Jury Commissioner of this Court relating to a period of five years—including the questionnaires returned by prospective jurors —and to interview the Clerk, the Jury Commissioner and former jurors. A hearing was held,5 and the Court heard testimony from witnesses called by defense counsel who included a statistician, a sociologist, and an attorney connected with the University of Chicago Jury Project; and from the Clerk of this Court and Judge R. Dorsey Watkins, who were called by the Government. Judge Watkins has been the Judge of this Court designated to confer with the Clerk on jury selection problems. However, that subject has also been discussed from time to time at the weekly meetings of the Judges of this Court, particularly during the last year when the possibility of obtaining a cross-section of the community from voting lists, telephone directories and other sources has been considered, and a greater use of various random sources has been suggested to the Clerk. Until recently, the Clerk and the Jury Commissioner had relied largely on "key-men," and had followed carefully the recommendations, including the form of letter to "key-men," contained in the Report of the Judicial Conference on the Operation of the Jury System, presented to the Judicial Conference of the United States in 1959 by its Committee on the operation of the Jury System, chaired by Chief Judge Harry E. Watkins of the Northern District of West Virginia, and approved by the Conference in September, 1960. 26 F.R.D. 409 et seq. (1960). That Report is sometimes hereinafter referred to as "the 1959 Conference Report."6

Because of the importance of the issues presented, Chief Judge Thomsen of this Court assigned three judges to hear and decide these cases. At the hearing, counsel conceded that there has been no deliberate or intentional discrimination against any group, and that there has been no discrimination or disproportion with respect to race, religion, or political affiliation. In fact, the evidence shows that the Clerk and the Jury Commissioner achieved almost perfect proportions with regard to those three classifications.

Noting the distinction between state and federal cases and emphasizing that the supervisory duties imposed upon this and every other federal court by the Constitution and by the Congress pursuant to 28 U.S.C. §§ 1861-1865,7 exceed those imposed by the Constitution with regard to state courts,8 counsel for defendants challenge the underlying procedures of jury selection followed in this Court. In addition, counsel assert that if those procedures are not themselves violative of required standards, their application has been so faulty as to require the dismissal of the indictments in these cases. For the reasons stated in this opinion, this Court denies the motions to dismiss in each of these cases and holds that the jury selection system in this Court and the empanelling of the juries involved in these cases are in accordance with Constitutional and existing statutory commands.

I.

For a number of years, the following procedures, with certain recent amplifications referred to in this opinion, were followed in selecting jurors to serve on the grand and petit juries in this Court:

(1) The Clerk of this Court and the Jury Commissioner of this Court were responsible for obtaining the names of persons to serve as federal jurors. The practice of the Clerk was to obtain the names of prospective jurors (a) by selecting the names himself from sources such as telephone directories, city and county directories, membership lists of clubs and civic groups, and other sources, and (b) by communicating with certain persons, such as ministers, priests and rabbis, state officials, county court clerks, registers of wills, supervisors of elections, and labor leaders, and requesting such persons to submit the names of prospective jurors. The Jury Commissioner followed the practice of obtaining names of prospective jurors by requesting certain persons to act as "key men" and to submit the names of prospective jurors. The Jury Commissioner was personally acquainted with all of the "key men" used by him. The Clerk was personally acquainted with very few of the persons whom he requested to suggest the names of prospective jurors. The names of 35%-40% of those persons to whom questionnaires were sent were supplied by "key men" personally known to either the Clerk or the Jury Commissioner; the names of 20%-25% of those persons to whom questionnaires were sent were taken by the Clerk from the sources mentioned under (a) supra; the names of the remaining 35%-45% of those persons to whom questionnaires were sent were supplied by the "suggestors" mentioned under (b) supra.

(2) Both the Clerk and the Jury Commissioner, in communicating with the persons asked to submit lists of prospective jurors, used the form letter attached as Exhibit 3 to the 1959 Conference Report.

(3) Prospective jurors whose names were obtained through the return of lists or through direct selection by the Clerk were sent a questionnaire in the form substantially the same as the form attached as Exhibit 1 to the 1959 Conference Report. When the questionnaires were returned, they were filed by political subdivision (counties and Baltimore City) in the order received.

(4) When the names of additional prospective jurors were needed for addition to the jury box, the Clerk removed the questionnaires from the files on the basis of "first in-first out." The Clerk examined the drawn questionnaires to determine whether each prospective juror met the statutory qualifications for jury service. Pursuant to oral in-instructions from the Court, the Clerk eliminated certain classes of persons, including doctors, lawyers, dentists, nurses, school teachers and persons whose questionnaires were returned with a doctor's certificate that the person was unable to serve as a juror. Questionnaires not eliminated by the Clerk were sent to the Jury Commissioner for his review. With rare exceptions, the questionnaires were all approved for deposit by the Jury Commissioner. The questionnaires were used to prepare slips for deposit in the jury box. These slips contained the name, age, address and occupation of the prospective juror and his or her spouse's name and occupation. The slips were deposited alternately by the Clerk and the Jury Commissioner so that the new deposits when added to those already in the jury box resulted in 400-600 names being in the box.

(5) The names of prospective jurors were deposited and drawn four times each calendar year. Grand and petit juries were organized for the terms of this Court beginning in March, June, September...

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  • United States v. Valentine
    • United States
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    • August 20, 1968
    ...365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705; Dow v. Carnegie-Illinois Steel Corporation, supra, 224 F.2d at 427; United States v. Cohen, 275 F.Supp. 724, 736 (D.Md., 1967); United States v. Hunt, supra, 265 F.Supp. at 185. To be sure, the new Jury Selection and Service Act of 1968 (P.L. 90-27......
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    ...183 F.2d 201, 216-224 (2d Cir.), cert. denied as to this issue, 340 U.S. 863, 71 S.Ct. 91, 95 L.Ed. 630 (1950). 4 United States v. Cohen, 275 F.Supp. 724, 740 (D.Md.1967) (three-judge court). Cf. Pope v. United States, 372 F.2d 710, 723 (8th Cir. 1967), vacated on other grounds, 392 U.S. 65......
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    ...U. S. v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); U. S. v. Cohen, 275 F.Supp. 724 (D.Md.1967); U. S. v. Leonetti, 291 F.Supp. 461 (S.D.N.Y.1968); U. S. v. Ross, 6 These numbers for Spanish, Indian, and Oriental adults are onl......
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    ...by the Seventh Circuit sub nom. United States v. Gast, 457 F.2d 141 (7th Cir.1972). Judge Frank Kaufman's decision in United States v. Cohen, 275 F.Supp. 724 (D. Md. 1967), was affirmed by the Fourth Circuit sub nom. United States v. DiTommaso, 405 F.2d 385 (4th Cir.1968). In affirming, the......
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