United States v. Armsbury

• Citation: 408 F. Supp. 1130
• Decision Date: 12 January 1976
• Docket Number: No. 74-260.,74-260.
• Parties: UNITED STATES of America, Plaintiff, v. Charles Duane ARMSBURY, Defendant.
• Court: U.S. District Court — District of Oregon

408 F. Supp. 1130

UNITED STATES of America, Plaintiff, v. Charles Duane ARMSBURY, Defendant.

No. 74-260.

United States District Court, D. Oregon.

January 12, 1976.

COPYRIGHT MATERIAL OMITTED

Sidney I. Lezak, U. S. Atty., Kristine Olson Rogers and D. Richard Hammersley, Asst. U. S. Attys., D. Or., Portland, Or., for plaintiff.

Charles Duane Armsbury, pro se.

J. Terrence Bittner and T. Leonard O'Byrne, of Jones, Lang, Klein, Wolf & Smith, Portland, Or., for defendant.

SKOPIL, District Judge:

INTRODUCTION

An indictment was filed against Charles Duane Armsbury and five other defendants for harboring and concealing an escaped prisoner, Carl Cletus Bowles, in violation of 18 U.S.C. §§ 371, 1072, 2, and 4. Pursuant to the provisions of 28 U.S.C. § 1867(c), defendant, Charles Duane Armsbury, requested that the proceedings be stayed against him. He has filed several motions to dismiss the indictment against him. He alleges that the jury selection procedure used is improper. Evidence was received and affidavits and memoranda were submitted by both parties. The pertinent issues can be summarized as follows:

ISSUES

I.

Provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. (hereinafter the Jury Selection Act), are in violation of defendant's constitutional rights.

1. Defendant is denied his right to be judged by his peers, including ex-felons who are presently excluded from jury service under 28 U.S.C. § 1865(b)(5).

2. Defendant is denied his right to a jury comprised of a fair cross section of the community because of the jury qualification based on language, residency, and citizenship under 28 U.S.C. § 1865(b)(1)(2), and (3).

3. Defendant is denied his right to a jury comprised of a fair cross section of the community because of the excuses from jury service given for reasons of undue hardship or extreme inconvenience under 28 U.S.C. § 1863(b)(5).

II.

Provisions of the District Court Plan for the District of Oregon for Random Jury Selection (hereinafter the District Court Plan) fail to satisfy the requirements of the Jury Selection Act and the Sixth Amendment of the United States Constitution.

4. The exclusive reliance upon voter registration lists results in an underrepresentation of black, Spanish, apathetic, lazy, young, uneducated, disillusioned, selfish, poor, and politically dormant people, as well as people in certain occupational categories, in violation of the Jury Selection Act.

5. The failure to include working guidelines to monitor and remedy existing and developing imbalances in the qualified jury wheel is in violation of the Jury Selection Act.

6. The granting of excuses for women with children under ten is in violation of the Jury Selection Act and defendant's constitutional right to a fair cross section.

DISCUSSION OF ISSUES

I.

1. Defendant is afforded important protections under the Sixth Amendment, the relevant portion of which states:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, . . ."

Defendant claims he was denied the right to an impartial jury. The requirement of an impartial grand jury has been interpreted by the Supreme Court to mean a jury composed of members drawn from a fair cross section of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Jury Selection Act was enacted to help secure that result.¹ However, defendant claims that by excluding felons from jury service under 28 U.S.C. § 1865(b)(5), he is denied an important segment of the only community that is capable of judging him impartially — his peers.

Twelfth-Century England did provide for grand juries composed of neighbors and friends. They were to testify about the validity of rumors in the community concerning the accused. By the Seventeenth Century, however, the function of the grand jury was to scrutinize accusations of the Crown rather than testify in support of its allegations. 1 F. Pollock & F. Maitland, The History of English Law, 152 (2nd Ed. 1899). Today the grand jury "has the dual function of determining if there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions". Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972).

Defendant's construction of the Sixth Amendment is void of judicial or historical support. There is no constitutional right to be tried by members of one's race, Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). Similarly, there is no constitutional right to be tried by one's peers. The Supreme Court in Taylor v. Louisiana, supra, 419 U.S. at 538, 95 S.Ct. at 702, stated:

"Defendants are not entitled to a jury of any particular composition."

The exclusion of felons from jury service, regardless of their peer status, does not violate the Sixth Amendment. U. S. v. Arnett, 342 F.Supp. 1255 (D.Mass.1970). The legislative history indicates that the purpose of this disqualification is to assure probity in the rendering of jury service. H.R. # 1076, 1968 U.S.Code Cong. & Admin.News, Vol. 2, p. 1796. This purpose is surely consistent with assuring a fair trial under the Sixth Amendment, and 28 U.S.C. § 1865(b)(5) serves that purpose.

2. 28 U.S.C. § 1865(b)(1), (2), and (3) disqualifies anyone from jury service who is not a citizen of the United States, who has not resided for a period of one year within the judicial district from which the names were drawn under the provisions of the Act, or who is unable to read, write, understand, or speak the English language. Defendant claims that these exclusions deny him a fair cross section of the community.

It is well settled that the one-year residency requirement is constitutional. United States v. Ross, 468 F.2d 1213 (9th Cir.), cert. denied, 410 U.S. 989, 93 S.Ct. 1500 (1973); U. S. v. Gray, 355 F.Supp. 529 (W.D.Okl.1973). The one-year residency requirement ". . . assures some substantial nexus between a juror and a community whose sense of justice the jury as a whole is expected to reflect". H.R. # 1076, supra at 1796.

Likewise, it is not unconstitutional to exclude from jury service those who are not sufficiently proficient in English to understand the proceedings in which they are to participate. United States v. Valentine, 288 F.Supp. 957 (D.C.P.R.1968).

Finally, the requirement of citizenship is constitutional. It eliminates those who have failed to demonstrate sufficient interest and understanding of our system of government to be charged with the grave responsibility of fairly and impartially judging those who must answer to the laws of that government.

Regardless of the constitutionality of these exclusions, defendant has the burden of proving that these exclusions deprive him of a fair cross section. United States v. Valentine, supra; U. S. v. James, 453 F.2d 27 (9th Cir. 1971). The defendant has failed to submit evidence in support of his argument. For defendant to sustain his burden of proof, he must present specific facts and figures, not general allegations. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972). Those who do not speak English, who have not lived within the district for one year, or who are not citizens are not themselves cognizable groups entitled to representation in a grand or petit jury.

In order to establish a violation of the Sixth Amendment, a defendant must prove a cognizable group was either excluded from or substantially underrepresented in the pool of names from which jurors are drawn. The Supreme Court thus far has recognized race and sex as constitutionally cognizable groups. Lower courts have found other groups cognizable under the statutory provisions of 28 U.S.C. § 1861 et seq. The extent to which other groups will be recognized under either the Act or the Constitution is uncertain. The Act may recognize more groups as cognizable than is constitutionally mandated. It may not recognize less. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).

Groups based solely on language, residency, or citizenship are not cognizable. The burden is on the defendant to establish that the exclusion of a particular group of people results in the exclusion of a cognizable group under the Sixth Amendment. He has not met that burden.

3. 28 U.S.C. § 1863(b)(5) states that a district court plan may excuse from jury service groups of people or occupational classes for which attendance would be an extreme inconvenience or undue hardship. Defendant claims that this provision denied him a fair cross section of the community.

Defendant has failed to demonstrate how the excuse of certain groups for reasons of hardship has denied him a fair cross section of the community. Even if these excuses do result in the underrepresentation of certain cognizable groups, the statutory authority to grant them is not unconstitutional. Whether exemptions based on excuse are constitutional or not will depend on each excuse. If the excuse reflects a rational accommodation between the community's need for jurors and its need for uninterrupted professional or other important services, then it is constitutional. United States v. Arnett, supra; United States v. Gray, supra.

The Supreme Court spoke on this Sixth Amendment issue in a case involving state jury selection:

"The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899 (1906). It would

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