548 F.2d 608 (5th Cir. 1977), 75-3334, United States v. Kennedy

Docket Nº75-3334.
Citation548 F.2d 608
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Z. T. KENNEDY, Defendant-Appellant.
Case DateMarch 14, 1977
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 608

548 F.2d 608 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Z. T. KENNEDY, Defendant-Appellant.

No. 75-3334.

United States Court of Appeals, Fifth Circuit

March 14, 1977

Page 609

Clarence F. Seeliger (Court appointed), Decatur, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Dorothy T. Beasley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

In a July 1975 trial in the United States District Court for the Northern District of Georgia, a jury determined that appellant Z. T. Kennedy was guilty of robbery of a federally insured bank by force, violence, and intimidation, in violation of 18 U.S.C. § 2113(a). The only serious question presented by this appeal concerns the presence of three volunteers on that jury.

We conclude that the emergency use of volunteer jurors selected from those citizens who have just finished a term of jury service violated both the letter and spirit of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869 (hereinafter the Act), and its requirement of random selection from eligible members of the community. We condemn the practice, note its apparent demise, and put all districts under our jurisdiction on notice that its resurrection shall not be brooked.

We also conclude, however, that this appellant cannot avail himself of this substantial failure to comply with the Act. He inexcusably failed to meet the strict formal prerequisites that Congress established as the exclusive means for challenging juries selected in violation of the Act. Moreover, while the use of volunteers violated the strict statutory requirement of random selection, it did not deprive appellant of his constitutional right to a jury drawn from a fair cross section of the community.

Because appellant is foreclosed from asserting the violation of the statutory jury selection procedure and because the jury selection method employed visited no constitutional harm on him, the judgment of conviction is affirmed.

I. Facts and Proceedings Below

On June 11, 1975, appellant was brought to trial before Judge Freeman on both the robbery charge involved in this appeal and a charge of making a false statement regarding prior criminal record while purchasing a firearm. On appellant's motion the judge granted a mistrial to allow severance of the two counts. Trial on the bank robbery charge commenced before Judge Moye July 9, 1975. That trial resulted in the guilty verdict from which this appeal is taken. 1

Page 610

Among the prospective jurors for the second trial were several who had served as jurors at the prior term of the district court, during which appellant's abortive first trial had taken place. In order to satisfy a deficiency in the number of July prospects available from the qualified jury wheel, the jury clerk, pursuant to standing authorization from the chief judge of the district, had sought volunteers from the list of persons serving during the June term just completed.

No one has provided us any indication how the jury clerk selected from that list the names of prospective volunteers. Once she selected a name, however, the jury clerk's practice was the following, as best discerned from the record: she contacted the former jurors by telephone and asked them if they would perform additional service. She made clear that such service was not mandatory, that she was simply seeking volunteers. She told the volunteers when to report to court; they were not subpoenaed.

Prior to the voir dire for the July trial, the judge struck several prospective volunteer jurors because of possible knowledge gained during their presence in the courthouse during the June proceedings involving appellant. Three volunteers remained on the panel from which a jury would be selected. Just prior to the voir dire of this panel, counsel for appellant orally noted his objection that the presence of the volunteers violated the "random selection rule".

The attorneys then conducted an extensive voir dire of the panel. The three volunteers were individually questioned at length regarding possible knowledge of Kennedy or his prosecution. The three also confirmed that the jury clerk had telephoned them and had asked them to perform additional service. They understood themselves to be acting on a voluntary basis.

At the conclusion of the voir dire, defense counsel renewed his objection to the presence of volunteers. Government counsel made no comment. The court overruled the objection. The trial judge stated his reasons briefly:

The court believes that they were randomly selected by reason of their prior summons for service in June and the court does not believe at this time that the service for an extra period of time by jurors who are willing to do so constitutes a violation of the requirement that jurors are to be randomly selected . . . .

The judge also found no evidence of any prejudice against Kennedy on the part of the three volunteers. The three sat on the jury that returned the guilty verdict before us on appeal.

II. Volunteer Jurors and the Jury Selection Act

The Act provides for dismissal of an indictment, following proper objection, upon a court's determination that there has been a substantial failure to comply with the statutory procedures in selecting a grand or petit jury. 28 U.S.C. § 1867(a). It is abundantly clear that the practice of filling gaps in the month's jury pool with volunteers from last month's jurors introduces a significant element of nonrandomization into the selection process that not only technically violates, but substantially departs from, the Act's requirements.

  1. Inconsistency with the Act

    The practice unquestionably deviated from the Act's provisions governing petit juror selection in the normal course. The statute provides...

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