Nolan v. United States, No. 9730.

• Citation: 423 F.2d 1031
• Decision Date: 16 April 1970
• Docket Number: No. 9730.
• Parties: Eugene Anthony NOLAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

423 F.2d 1031 (1969)

Eugene Anthony NOLAN, Appellant, v. UNITED STATES of America, Appellee.

No. 9730.

United States Court of Appeals Tenth Circuit.

November 10, 1969.

Rehearing Denied April 16, 1970.

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James L. Guilmartin and Stanley Jay Bartel, Miami, Fla. (Guy Johnson, New Orleans, La., Robert Rizley, Tulsa, Okl., Addison M. Bowman, with them on brief) for appellant.

K. Eric Gisleson and Edward T. Joyce, Dept. of Justice (Will Wilson, Asst. Atty. Gen., and Gerald E. McDowell, Dept. of Justice, with them on brief) for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.

MURRAH, Chief Judge.

Defendant Nolan was convicted at jury trial for conspiracy to use and the actual use of facilities in interstate commerce to carry on an unlawful gambling business in violation of 18 U.S.C. §§ 371 and 1952. On appeal, Nolan challenges the practices employed in the selection of the jury venire; the incriminating use of his federal wagering tax stamp; the prejudicial admission of the federal wagering tax stamp of his co-conspirator, Dale Hines; surveillance to obtain incriminating evidence; and asserts the compromise of his Fifth Amendment right to remain silent in order to support his Fourth Amendment motion to suppress; insufficiency of the evidence; prosecutorial misconduct; and improper sentencing.

I. Challenge to the Venire

While not attacking the key man system employed in the Northern District of Oklahoma at the time of our case as illegal per se or intentionally discriminatory, Nolan does claim that the system had the operational effect of discriminatorily excluding lower educational and income groups and racial minorities. He contends that the key men or suggesters selected by the jury commission were not representative of a cross section of the community and that the instructions in the letter sent to them to use their "own good judgment" to select "good citizens" as prospective jurors added additional qualifications found and condemned in Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) and Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969), and that, in any event, he was denied a fair evidentiary hearing upon these claims.

It is settled beyond doubt that the constitutional fair- and impartial-jury guaranty does not require that every economic, racial, or ethnic class shall be represented on every jury venire or panel. What it does require is that no such group shall be discriminatorily excluded. Consistent lack of proportional representation on the jury list may very well be cogent evidence of systematic exclusion. See Smith v. State of 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); Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Hernandez v. United States, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Rabinowitz v. United States, supra; Bary v. United States, 248 F.2d 201 (10th Cir. 1957).

Since it is conceded that the so-called key man system is not per se discriminatory, our inquiry is whether the methods and practices employed were discriminatorily utilized here. Upon motion to quash the jury list, the court conducted a pretrial hearing in which the jury commissioner and court clerk described and explained in detail the method and manner in which the key men or suggesters were selected as well as the instructions given to them on how the prospective jurors were to be chosen.

These methods and practices may be summarized as follows: Every three or four years the court clerk sent letters asking for suggested names of possible jurors to all postmasters in the district, civic and professional clubs, each and every church listed in the telephone directory, labor unions and county agents of each county in the district. Other groups were contacted by telephone and the clerk also traveled to many towns in the district to "secure names from various groups that would represent a cross-section of the prospective jurors and as to the population and as to their occupation and as to the color and race * * *" Sometimes suggestions were made by the jury commissioners themselves, federal judges, their law clerks, and other federal employees.

When the suggested names were received, an administrative office questionnaire was sent to each prospective juror, asking for the usual biographical information and inquiring about any criminal record and the ability to read and write. See 28 U.S.C. § 1861. Race, religion, and economic status were not mentioned. When the questionnaires were returned, they were examined for juror disabilities and only statutory disqualifications were made.

The challenged instruction in the letter stated simply that the prospective jurors "should be good citizens and representative of the various interests in the community * * *. Please use your own good judgment." (R. 1327)

There is certainly nothing in this record from which it can be said that the suggesters did not fairly represent a cross section of the community. On the contrary, the organizational and group identity of many of the suggesters is strongly indicative of their heterogenity. Nor do we find anything in the instructions which can be construed to authorize the suggesters to set up their own standards for juror qualifications. Considered in the context in which the instructions were given, we believe they are susceptible to only one admonition, i. e., that the suggesters should use their best judgment in the selection of prospective jurors whom they believe to be fairly representative of the citizenry of the community in which they live. There can be no objection to the admonition to select good citizens so long as they are fairly representative of the community and this language was obviously intended to and did say no more. Cf. Hunt v. United States, 400 F.2d 306 (5th Cir. 1968); Rabinowitz v. United States, supra; Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966).

Nolan insists, however, that had he been permitted to do so, he could have shown by the testimony of the suggesters themselves that they construed their instructions to authorize them to exercise their "own good judgment" concerning qualifications in selecting "good citizens" as prospective jurors and thus establish their own standards without regard to statutory or constitutional requirements. Purposeful discrimination may not be assumed or merely asserted, i. e. see Swain v. Alabama, supra. It was incumbent upon Nolan to make some factual showing of racial, educational or economic disparity in the jury list as a basis for the interrogation of the suggesters concerning their interpretation of the instructions to use their best judgment to choose "good citizens" representing the various interests of the community. See Hunt v. United States, supra, distinguishing Rabinowitz v. United States, supra. In his motion to quash, Nolan asserted only conclusions of law without supporting affidavits, statistics or factual allegations showing any disproportionate representation or any irregularities in the practices used. At the outset of the evidentiary hearing the trial court cautioned Nolan's attorneys that "the Court is going to look to you for proof, with evidence of some support of these allegations and will determine by such proof and evidence how far this court will go into the hearing in depth." After hearing testimony from the court clerk, deputy clerk, and jury commissioner for over two days, which revealed no significant irregularities of any kind, the court ended the hearing. When counsel attempted to resort to the jury list apparently for the purpose of making a prima facie showing of racial or economic disparity, the trial court very properly suggested that the jury lists had been available to counsel for four months without any statistical or other factual data tending to show disproportionate representation. We think the trial court quite properly declined to permit counsel to launch what can only be called a fishing expedition.

II. Incriminating Use of Nolan's Tax Stamp

Nolan's second claim is that the government's use of his federal wagering tax stamp filings at trial violated his Fifth Amendment privilege against self-incrimination. And see Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v. Freeman, 412 F.2d 1180 (10th Cir. 1969). Under the controlling rationale of these cases Nolan's tax stamp filings were compelled self-incriminatory statements and a properly asserted claim of privilege would shield him from criminal penalties for failure to comply with the tax laws on wagering. Marchetti, 390 U.S. at 48, 88 S.Ct. 697; Leary, 395 U.S. at 27, 89 S.Ct. 1532. Since then it has become clear that introduction of evidence of these filings at defendant's trial on charges of violation of 18 U.S.C. §§ 371 and 1952 would also have subjected defendant to a "real and appreciable risk" of self-incrimination. And see United States v. Freeman, supra; Nolan v. United States, 395 F.2d 283 (5th Cir. 1968). The filings were not, however, formally introduced into evidence and the question is whether the oblique references that were made to them were sufficient to create the required risk of self-incrimination and to entitle defendant to claim his Fifth Amendment privilege.

Defendant's possession of a tax stamp was referred to by the court and counsel for both sides and testified to by defendant's brother, Dr. Charles Nolan. The indictment listed the...