United States v. Northside Rlty. Assoc.

• Decision Date: 17 March 1981
• Docket Number: No. CR 80-62A,80-136A.,CR 80-62A
• Citation: 510 F. Supp. 668
• Parties: UNITED STATES of America v. NORTHSIDE REALTY ASSOCIATES, INC. and Browning-Ferris Industries of Georgia, Inc., et al.
• Court: U.S. District Court — Northern District of Georgia

510 F. Supp. 668

UNITED STATES of America v. NORTHSIDE REALTY ASSOCIATES, INC. and Browning-Ferris Industries of Georgia, Inc., et al.

Nos. CR 80-62A, 80-136A.^*

United States District Court, N. D. Georgia, Atlanta Division.

March 17, 1981.

COPYRIGHT MATERIAL OMITTED

Janet King, Asst., U. S. Atty., Atlanta, Ga., John Fitzpatrick, John Orr, Carl Mullis, Anti-Trust Div., Dept. Justice, Atlanta, Ga., for plaintiff.

Richard Elliott, John Martin, Atlanta, Ga., David Kairys, Philadelphia, Pa., Robert Altman, Reber Boult, Paul H. Kehir, Joab Kunin, Richard D. Allen, William Weller, Harold A. Miller, III, Trammell Vickery, Trammell Newton, Daniel Kane, Woodrow Vaughan, P. Bruce Kirwan, Hugh Gibert, C. David Vaughan, Jane Wilcox, S. Richard Rubin, Elizabeth Edelman, William Maycock, Torin D. Togut, Halsey G. Knapp, Jr., J. Kevin Buster, Daisy Hurst Floyd, Leigh R. Bodner, Penn Payne, Hugh Peterson, Michael Eric Ross, Scott Jacobson, Charles Kidd, Ted Price, Thomas Rhodes, D. Robert Cumming, T. J. Carey, Joe Bynum, David Lavance, Mark Kadish, Mary Donovan, Larry Thompson, Hugh M. Worsham, Jr., Leah J. Sears, Jay Strongwater, Atlanta, Ga., Scott McLarty, Decatur, Ga., Michael Parham, East Point, Ga., John O. Bouwsma, Clarksville, Ga., Peter C. Clemente, Miami, Fla., David J. Clark, Frank G. Smith, III, James Gilbert, Amy Totenberg, Atlanta, Ga., Ted Healey, Gainesville, Ga., Melvyn Kessler, Miami, Fla., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge, Sitting by Designation.

In this consolidated proceeding the court must deal with motions of various defendants to dismiss indictments on the ground of statutory and constitutional deficiencies in the selection of grand and petit jurors in the Northern District of Georgia.¹ Our present consideration is restricted to procedural issues raised by the government's challenge to the timeliness of defendants' motions under the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. and Rule 12, F.R.Crim.P.

(a) Real Estate Defendants.

On March 20, 1980, the real estate defendants were indicted on several counts of criminal anti-trust violations; at arraignment on the following day, they pled not guilty. On July 17, the magistrate assigned to the case entered an order allowing three weeks following receipt of certain materials from the clerk's office for these defendants to file motions to dismiss the grand jury indictment because of alleged substantial departures in the administration of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. On August 18, the real estate defendants filed their original motion to dismiss the indictment which charged various deficiencies in the administration of the jury selection plan, to-wit:

1. Erroneous determinations of jury qualifications, exemptions and excuses by individuals delegated authority by the court.

A. Wrongful exclusion of qualified potential jurors by court employees.

B. Unlawful exclusions from grand jury selection process by jury clerk.

C. Alleged effect of actions of court employees and jury clerk on randomness, objectivity and fair cross-section.

2. Statutory violations based on permanent excuses from jury duty.

3. Failure to operate selection mechanism according to the selection plan.

4. Statutory violations based on failure to revise qualified jury wheels.

In addition, defendants raise constitutional claims of race and, later, sex,² bias on the part of the district judges in the selection of grand jury forepersons and deputy forepersons. A second constitutional challenge was based on gender discrimination in the granting of excuses from jury duty. Because of the challenge relating to the selection of forepersons, all sitting district judges in the Northern District of Georgia disqualified themselves, and, upon application of Honorable James P. Coleman, Chief Judge of the United States Court of Appeals for the Fifth Circuit, the undersigned judge was designated to hear all motions to dismiss indictments returned by the district's grand juries.

On November 25 this court, from the judge's home station in Mississippi, issued an order directing that the filing of further amendments, if any were to be made, must be accomplished by December 8. On that date the real estate defendants, without obtaining leave of court, further amended their motion to dismiss the indictment against them on the constitutional grounds that the plan of selection of grand and petit jurors for the Northern District of Georgia impermissibly results in substantial underrepresentation of specified cognizable groups of citizens within the community, thus failing to reflect a fair cross section of the citizenry, and that this underrepresentation is further accentuated by failures in the clerk's office to pursue unreturned juror qualification questionnaires for a more accurate determination of the race, sex and economic status of such potential jurors.

It is the position of the real estate defendants that their latest amendment, filed December 8, was merely supplementary and added little, if any, new material to their previously filed motion to dismiss; or, in the alternative, that constitutional issues raised under Rule 12, F.R.Crim.P., may not be considered waived for failure to file timely. It is the government's contention that our November 25 order may not be properly taken as an invitation to real estate defendants to add new theories to an already wide-ranging challenge for which the defendants have heretofore taken nearly six months to prepare. The government asserts that the latest amendment of the defendants threatens to substantially protract these proceedings because the prosecution would require a significant amount of time to prepare to meet the issues raised in the amendment.

Real estate defendants, in their latest amendment, challenge the indictment on the following grounds:

A. The voter registration lists of the 46 counties of the Northern District, and four divisions thereof, as source lists from which grand and petit jurors are chosen, the process of selection, and the resulting pool are contrary to the Jury Selection Act and the Constitution of the United States, in that cognizable classes of eligible jurors, i. e., blacks, females, blue collar and service workers, and persons having less than a high school education, are being substantially underrepresented in the jury selection process.

B. Eligible jurors are being improperly disqualified or excluded based on place of residence, in violation of statutory and constitutional law.

C. Insufficient followup is being made by the clerk of court and his deputies as to nonreturned questionnaires, in violation of law.

D. Jurors are not drawn, selected or sworn in accordance with the federal statute and constitution.

E. There is a substantial failure to comply with the provisions of the Jury Selection Act.

F. The indictment in this case was handed down by a grand jury drawn from a jury pool that was not selected in accordance with the statute and the constitution.

G. Trial of defendants on this indictment before a jury drawn from the existing pool would violate the defendants' rights pursuant to federal statute and the constitution.

The essence of the principal part of the new grounds alleged by the real estate defendants assails the adequacy of voter registration lists as a proper vehicle for providing a fair cross section of the community in the selection of grand and petit jurors; in other respects the amended motion brings forward certain defects alleged to exist in the administration by court personnel of the district's jury plan.

(b) Garbage Case Defendants.

In the companion case, CR 80-136, the prosecution is against the garbage case defendants, who were also indicted on several counts of criminal anti-trust violations. The essential facts of this case follow:

On June 5, 1980, defendants pled not guilty to an indictment which was returned against them on May 29, 1980. Also on June 5, the assigned magistrate imposed a deadline of July 11 for the filing of motions. On July 22 the magistrate conducted a hearing in the garbage case in which a lengthy discussion ensued as to the type and character of the motions which the garbage defendants stated they proposed to file to dismiss their indictment. It was acknowledged by all present, including the magistrate, that the results of the ongoing but uncompleted investigation of the real estate defendants were unknown. The magistrate plainly indicated to defense counsel that he disfavored the filing of any motions to quash an indictment not grounded in fact, but nevertheless allowed defense counsel approximately two weeks to supplement the record or file further motions. The garbage defendants filed no motion to dismiss the indictment until they first learned of the real estate defendants' motion, which was filed on August 18. That marked the first time that the garbage case defendants became privy to any information derived from the investigation of the real estate defendants. On August 28, the garbage case defendants first filed their motion to dismiss the indictment, urging grounds identical to those advanced by the real estate defendants in their August 18 motion.

Garbage case defendants, first before the magistrate and now before us, urge that it would have been highly disruptive to the clerk's office and its personnel for them to have started an investigation parallel to the one in progress by the real estate defendants; and they point out that a dual investigation might well have been a needless waste of time and money, depending upon which conclusions were reached in the real estate defendants' investigation. These defendants emphasized the fact that the information being gathered by the real estate defendants was kept confidential and that their attorneys refused to disclose results of their ongoing investigation. As previously stated, the garbage case defendants, within ten days after first having...