United States v. DiTommaso, 11942

Decision Date02 December 1968
Docket NumberNo. 11942,11952.,11942
PartiesUNITED STATES of America, Appellee, v. John Joseph DiTOMMASO, Appellant. UNITED STATES of America, Appellee, v. Charles Forest WAUGAMAN, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Stephen D. Shawe, Asst. U. S. Atty., Baltimore, Md., Stephen H. Sachs, U. S. Atty., Paul R. Kramer, Asst. U. S. Atty., Baltimore, Md., for appellee.

Donald F. Rogers, Baltimore, Md., for appellant, DiTommaso.

Arnold M. Weiner, Baltimore, Md., for appellant, Waugaman.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

Certiorari Denied March 24, 1969. See 89 S.Ct. 1209, 1210.

WINTER, Circuit Judge:

In No. 11,942 John Joseph DiTommaso, convicted and sentenced for conspiracy and counterfeiting, appeals solely on the ground that the grand jury which indicted him was illegally constituted. He argues that the indictment returned against him should have been dismissed.

In No. 11,952, Charles Forest Waugaman, convicted and sentenced for bank robbery, appeals, inter alia, on the ground that the grand jury which indicted him and the petit jury which found him guilty were selected in violation of the statutory and constitutional standards prescribed for the selection of jurors. On appeal Waugaman also asserts other errors in his trial.

Both appeals are from the District of Maryland and both defendants were parties to the proceeding United States v. Cohen, 275 F.Supp. 724 (D.Md.1967), which examined and upheld the validity of the manner of selection of grand and petit jurors in that district and sustained the legality of the grand juries which indicted defendants and the petit jury which found Waugaman guilty.1 We consolidated the appeals for argument and decision. We affirm in both cases.

I

The manner of selecting jurors to serve on the grand and petit juries in the District of Maryland is fully set forth in United States v. Cohen, supra, to which reference is made for a fuller statement of the facts. Questionnaires to prospective jurors were sent to persons, the names of whom were (a) supplied by "key men" personally known to the clerk or the Jury Commissioner, (b) obtained by the clerk from such sources as telephone directories, city and county directories, and membership lists of clubs and civic groups, and (c) obtained by the clerk from "key men," such as ministers, priests and rabbis, state officials, county court clerks, registers of wills, supervisors of elections and labor leaders, not personally known to the clerk. The names of qualified persons, not excused under blanket excuses (doctors, lawyers, dentists, nurses, school teachers and the physically disabled), were deposited in the jury box from which periodic drawings were made. The names of 35%-40% of the names deposited were obtained from source (a); 20%-25% from source (b); and 35%-45% from source (c). From each particular drawing and after a summons to the person whose name was drawn and a judicial determination of the validity of any excuse asserted, the grand jury and petit jury panel for each term of Court was named.

As a beginning point for our discussion of the issue to be decided, it is appropriate to state what is not in issue. It is conceded that the clerk and the Jury Commissioner did not practice intentional exclusion as to race, color, sex, age, economic status, political affiliation, or any other measure by which jurors may be classified. It is undisputed that over the five-year period preceding the hearing in the district court the percentages of representation of prospective jurors, before excuses, by race, religion and political affiliation were identical to or very closely approximated the like percentages of the population within the district eligible for jury service.

Stripped to their essentials, defendants' contentions are that the jury selection process in the District of Maryland resulted, albeit unwittingly, in systematic exclusion by sex, age, geography, economic status (occupation) and education. The factual basis of defendants' contentions is shown by the following summary of statistical studies of twenty-one grand juries2 empaneled between 1961 and 1966, which the parties stipulated as agreed exhibits, or which were proven at the hearing on motions to dismiss the indictments.3

                % of Population % of Jurors % on Defendants'
                Category Eligible Drawn Grand Jury
                 I. Sex
                     A. Men                          47.9             71              72.5
                     B. Women                        52.1             29              27.5
                 II. Age
                     A. 21-29                        18.9            3.9              2.5
                     B. 30-39                        25.3           16.8             20.0
                     C. 40-49                        22.0           26.7             30.0
                     D. 50-59                        16.1           28.4             22.5
                     E. Over 59                      17.7           24.2             25.0
                III. Geography
                     A. Dist. of C
                        Suburbs
                        (Montg.-Prince
                        George's Counties
                        Maryland)*              23.3            1.6              5.0
                     B. Elsewhere in Md.             76.7           98.4             95.0
                     C. Metropolitan Baltimore Area — Of 870 grand jurors drawn during the
                        five-year period in question, 591 were from the Baltimore Metropolitan
                        Area. Of the 591, 185 (or, roughly 1/3;) were residents of four postal zones
                        in the northern part of the city and the southern part of Baltimore County
                        These four postal zones have a total population of 196,000. The remainder
                        (406) were residents of nineteen postal zones in the south and east (Baltimore
                        City, Baltimore County and Anne Arundel County) having a total
                        population of 752,000
                 IV. Economic Class
                     A. Executive and
                        professional**       25.0           45.7           Not given
                     B. Blue collar**        48.0           24.7           Not given
                     C. Executive and
                        professional***      15.4           34.5             33.3
                     D. Blue collar***       29.3           18.6             15.4
                  V. Education
                     A. Less than
                        high school
                        diploma                 Over 50       24 (33% for         21.9
                                                              petit jury)
                     B. High school
                        diploma
                        or more                 Under 50           76              78.1
                

Before proceeding to a consideration of the constitutional and statutory requirements for the selection of grand and petit juries and whether they are satisfied, we call attention to a possible deficiency in defendants' proof. The statistics offered and which we have summarized were all based upon returns to questionnaires. There was no showing, however, how many questionnaires were sent to prospective jurors that were not returned, and what steps, if any, were taken to induce return;4 thus, the accuracy of the data proved may or may not be substantially adversely affected depending upon whether all or substantially all of the questionnaires sent to prospective jurors were returned or whether a substantial factor of non-returns should be given weight. The Court takes judicial knowledge of the fact that there is a likelihood that young adults, having greater mobility than the average of the population, persons in military service, and young women having small children and the responsibility of caring for them, would be more likely than older adults having a relatively fixed abode, not in military service and having grown families, not to return a questionnaire because they considered themselves ineligible for jury duty, because the questionnaire did not reach them, or because they considered prospective jury duty onerous by reason of their special circumstances. By the same token, there was no evidence that the clerk failed, within the scope of his authority, to take action to induce the return of questionnaires. On this subject, the record is silent. Thus, we have no occasion to consider what, if any, positive duty rested on the Clerk and whether that duty was fulfilled.

Assuming, however, reasonable accuracy in the statistical data concerning jury composition, we turn to the legal considerations which the appeals present. The constitutional principle that juries must be selected from a fair cross-section of the community is now well-established. See, e. g., Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L. Ed.2d 759 (1965); Mobley v. United States, 379 F.2d 768 (5 Cir. 1967); Rabinowitz v. United States, 366 F.2d 34 (5 Cir. 1966); United States v. Dennis, 183 F.2d 201 (2 Cir. 1950), aff'd on other grounds, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).5 While the cross-sectional concept is firmly imbedded in the law, the constitution does not require that the jury or jury venire be a statistical mirror of the community. Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961); Swain v. Alabama, supra; Mobley v. United States, supra; Rabinowitz v. United States, supra; Dow v. Carnegie-Illinois Steel Corporation, 224 F.2d 414 (3 Cir. 1955), cert. den., 350 U.S. 971, 76 S.Ct. 442, 100 L.Ed. 842 (1956).

It may be fairly said that the 1948 jury selection act, 62 Stat. 951, and its predecessors, were statutory buttresses to the cross-sectional principle. Ballard v. United States, 329 U.S. 187, 190-191, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Until 1957, however, Congress was content to retain as a part of federal law varying state disqualifications and...

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