411 U.S. 233 (1973), 71-6481, Davis v. United States

Docket Nº:No. 71-6481
Citation:411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216
Party Name:Davis v. United States
Case Date:April 17, 1973
Court:United States Supreme Court

Page 233

411 U.S. 233 (1973)

93 S.Ct. 1577, 36 L.Ed.2d 216



United States

No. 71-6481

United States Supreme Court

April 17, 1973

Argued February 20, 1973




Three years after his conviction for a federal crime, petitioner brought this collateral attack on the ground of unconstitutional discrimination in the composition of the grand jury that indicted him. The District Court found that, though petitioner could have done so, he at no stage of the proceedings attacked the grand jury's composition, and it concluded that, under Fed.Rule Crim.Proc. 12(b)(2), he had waived his right to do so. The court also determined that, since the challenged jury selection method had long obtained, the grand jury that indicted petitioner indicted his two white accomplices, and the case against petitioner was "a strong one," there was no "cause shown" under the rule to grant relief from the waiver. The Court of Appeals affirmed.


1. The waiver standard set forth in Fed.Rule Crim.Proc. 12(b)(2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review. Shotwell Mfg. Co. v. United States, 371 U.S. 341, followed; Kaufman v. United States, 394 U.S. 217, distinguished. Pp. 236-243.

2. The District Court, in the light of the record in this case, did not abuse its discretion in denying petitioner relief from the application of the waiver provision. Pp. 243-245.

455 F.2d 919, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 245.

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REHNQUIST, J., lead opinion

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

We are called upon to determine the effect of Rule 12(b)(2) of the Federal Rules of Criminal Procedure on a post-conviction motion for relief which raises for the first time a claim of unconstitutional discrimination in the composition of a grand jury. An indictment was returned in the District Court charging petitioner Davis, a Negro, and two white men with entry into a federally insured bank with intent to commit larceny in [93 S.Ct. 1579] violation of 18 U.S.C. §§ 2 and 2113(a). Represented by appointed counsel,1 petitioner entered a not guilty plea at his arraignment and was given 30 days within which to file pretrial motions. He timely moved to quash his indictment on the ground that it was the result of an illegal arrest, but made no other pretrial motions relating to the indictment.

On the opening day of the trial, following voir dire of the jury, the District Judge ruled on petitioner's pretrial motions in chambers and ordered that the motion to quash on the illegal arrest ground be carried with the case. He then asked twice if there were anything else before commencing trial. Petitioner was convicted and

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sentenced to 14 years' imprisonment. His conviction was affirmed on appeal. 409 F.2d 1095 (CA5 1969).

Post-conviction motions were thereafter filed and denied, but none dealt with the issue presented in this case. Almost three years after his conviction, petitioner filed the instant motion to dismiss the indictment, pursuant to 28 U.S.C. § 2255, alleging that the District Court had acquiesced in the systematic exclusion of qualified Negro jurymen by reason of the use of a "key man" system of selection,2 an asserted violation of the

mandatory requirement of the statute laws set forth . . . in title 28, U.S.C.A. Section 1861, 1863, 1864, and the 5th amendment of the United States Constitution.3

His challenge only went to the composition of the grand jury, and did not include the petit jury which found him guilty. The District Court, though it took no evidence on the motion, invited additional briefs on the issue of waiver. It then denied the motion. In its memorandum opinion, it relied on Shotwell Mfg. Co. v. United States, 371 U.S. 341 (1963), and concluded that petitioner had waived his right to object to the composition of the grand jury because such a contention is waived under Rule 12(b)(2) unless raised by motion prior to trial. Also, since the "key man" method of selecting grand jurors had been openly followed for many years prior to petitioner's indictment, since the same grand jury that indicted petitioner indicted his two white accomplices, and since the

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case against petitioner was "a strong one," the court determined that there was nothing in the facts of the case or in the nature of the claim justifying the exercise of the power to grant relief under Rule 12(b)(2) for "cause shown."

The Court of Appeals affirmed on the basis of Shotwell, supra, and Rule 12(b)(2). Because its decision is contrary to decisions of the Ninth Circuit in Fernandez v. Meier, 408 F.2d 974 (1969), and Chee v. United States, 449 F.2d 747 (1971), we granted certiorari to resolve the conflict.

Petitioner contends that, because his § 2255 motion alleged deprivation of a fundamental constitutional right, one which has been recognized since Strauder v. West Virginia, 100 U.S. 303 (1880), his case is controlled by this Court's dispositions of Kaufman v. United States, 394 U.S. 217 (1969), and Sanders v. United States, 373 U.S. 1 (1963), [93 S.Ct. 1580] rather than Shotwell Mfg. Co. v. United States, supra, and Rule 12(b)(2). Accordingly, he urges that his collateral attack on his conviction may be precluded only after a hearing in which it is established that he "deliberately bypassed" or "understandingly and knowingly" waived his claim of unconstitutional grand jury composition. See Fay v. Noia, 372 U.S. 391 (1963), and Johnson v. Zerbst, 304 U.S. 458 (1938).


Rule 12(b)(2) provides in pertinent part that

[d]efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial,

and that failure to present such defenses or objections "constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver." By its terms, it applies to both procedural and constitutional defects in the institution of prosecutions which do not affect the jurisdiction of the

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trial court. According to the Notes of the Advisory Committee on Rules, the waiver provision was designed to continue existing law, which, as exemplified by this Court's decision in United States v. Gale, 109 U.S. 65 (1883), was, inter alia, that defendants who pleaded to an indictment and went to trial without making any nonjurisdictional objection to the grand jury, even one unconstitutionally composed, waived any right of subsequent complaint on account thereof. Not surprisingly, therefore, the Advisory Committee's Notes expressly indicate that claims such as petitioner's are meant to be within the Rule's purview:

These two paragraphs [12(b)(1) and (2)] classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. . . .

. . . Among the defenses and objections in this group are the following: illegal selection or organization of the grand jury. . . .

Notes of Advisory Committee following Fed.Rule Crim.Proc. 12, 18 U.S.C.App.

This Court had occasion to consider the Rule's application in Shotwell Mfg. Co. v. United States, supra, a case involving tax evasion convictions. In a motion filed more than four years after their trial, but before the conclusion of direct review, petitioners alleged that both the grand and petit jury arrays were illegally constituted because, inter alia, "the Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population."4 371 U.S. at 361-362.

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Deeming the case controlled by Rule 12(b)(2), the District Court held a hearing to determine whether there was "cause" warranting relief from the waiver provision, and it found that

the facts concerning the selection of the grand and petit juries were notorious, and available to petitioners in the exercise of due diligence before the trial.

Id. at 363. It concluded that their failure to exercise due diligence, combined with the absence of prejudice from the alleged illegalities, precluded the raising of the issue, and the Court of Appeals affirmed. In this Court, petitioners conceded that Rule 12(b)(2) applied to their objection to the grand jury array, but they denied that it applied to the petit jury. Both objections were held foreclosed by the [93 S.Ct. 1581] petitioners' years of inaction, and the lower courts' application of the Rule was affirmed. Shotwell thus confirms that Rule 12(b)(2) precludes untimely challenges to grand jury arrays, even when such challenges are on constitutional grounds.5 Despite the strong analogy between the effect of the Rule as construed in Shotwell and petitioner's § 2255 allegations, he nonetheless contends that Kaufman v. United States, supra, establishes that he is not precluded from raising

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his constitutional challenge in a § 2255 proceeding.6 See Fay v. Noia, supra. We disagree.

In Kaufman, the defendant in a bank robbery conviction sought collateral relief under § 2255, alleging that illegally seized evidence had been admitted against him at trial over a timely objection, and that this evidence resulted in the rejection of his only defense to the charge. The application was denied in both the District Court and the Court of Appeals on the ground that it had not been raised on appeal from the judgment of conviction, and "that...

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