550 F.2d 577 (10th Cir. 1976), 73-1337, United States v. Test

Docket Nº:73-1337, 75-1773, 75-2001 and 75-1899.
Citation:550 F.2d 577
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John E. TEST, Defendant-Appellant. Francis R. SALAZAR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Enrique Sandoval CHAVEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cameron David BISHOP, Defendan
Case Date:November 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 577

550 F.2d 577 (10th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

John E. TEST, Defendant-Appellant.

Francis R. SALAZAR, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

UNITED STATES of America, Plaintiff-Appellee,

v.

Enrique Sandoval CHAVEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Cameron David BISHOP, Defendant-Appellant.

Nos. 73-1337, 75-1773, 75-2001 and 75-1899.

United States Court of Appeals, Tenth Circuit

November 12, 1976

Page 578

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Argued and Submitted July 8, 1976.

Rehearing Denied Dec. 17, 1976.

Page 580

Michael E. Tigar, Washington, D.C., Harold A. Haddon, Louis M. Fischer, Denver, Colo., and John Mage, for appellant Bishop and Cameron David Bishop, pro se, on the brief for appellant Bishop.

Walter L. Gerash and Robert C. Floyd, Denver, Colo. (Louis M. Fischer, Denver, Colo., with them on the brief), for John E. Test.

Robert L. Pitler of Levine, Pitler & Westerfeld, P. C., Denver, Colo., on brief for Francis R. Salazar.

E. Michael Canges of Canges & Shaver, Denver, Colo., on brief for Enrique Chavez.

Arthur H. Bosworth II, Sp. Asst. U.S. Atty. and James L. Treece, U.S. Atty., J. Terry Wiggins, Stephen E. Munsinger, C. Scott Crabtree, Asst. U.S. Attys., on brief for the U. S.

Before LEWIS, Chief Judge and SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

The above-captioned cases were consolidated for consideration of defendants' 1 individual

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challenges to the jury selection plan adopted by the district court for the District of Colorado as violative of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq., as amended (the Act), and the fifth and sixth amendments to the United States Constitution. Pursuant to the mandate of the Supreme Court in Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786, defendants were allowed to inspect both the master and qualified jury wheels and the qualifying questionnaires returned by prospective jurors. Following a consolidated evidentiary hearing at which defendants presented documentary and testimonial evidence concerning the alleged defects in the Colorado jury selection plan, the district court concluded defendants had failed to meet their burden of proof. United States v. Test, D.Colo., 399 F.Supp. 683; United States v. Bishop, D.Colo., No. 69-CR-35, decided August 14, 1975 (unpublished opinion).

Issues

Defendants Bishop and Salazar allege that Chicanos, blacks, and persons under forty years of age were "substantially underrepresented" on the master jury wheel in use during 1969 and early 1970 and that neither the grand nor petit juries drawn from that wheel were "selected at random from a fair cross section of the community" as required by the Act and the fifth and sixth amendments to the United States Constitution. Similar challenges are raised by the remaining defendants (hereafter collectively referred to as the "Test" defendants) with respect to the underrepresentation of Chicanos and blacks on the master jury wheel in use from January 1972 through December 1974. 2 Bishop and Salazar also allege that certain of the excuse, exemption, and disqualification categories authorized by the Colorado jury selection plan are, both on their face and as applied, violative of the Act. 3 Since all of the defendants have challenged the Colorado jury selection plan on grounds that Chicanos and blacks were underrepresented on the master jury wheels, we will direct our attention to these common claims before considering the additional challenges raised by Bishop and Salazar.

I. Underrepresentation of Chicanos and Blacks.

  1. The Colorado Jury Selection Plan.

    As required by section 1863(b)(2) of the Act, the Colorado jury selection plan utilizes voter registration lists as the initial source of names for potential jurors. Names are selected from these lists at fixed intervals and placed into a master jury wheel, from which the qualified jury wheel is in turn selected at random. Defendants concede this selection process is mathematically random and the demographic composition of the master jury wheel accurately reflects the composition of the voter registration lists. 4 Defendants' challenges are

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    therefore directed toward the alleged disparity between the proportion of Chicanos and blacks in the voting-age population of the Colorado judicial district, as evidenced by the 1970 census, and the proportion of Chicanos and blacks appearing on the voter registration lists (the primary source lists), as evidenced by their proportional representation on the master jury wheels.

    B. Defendants' Evidence.

    Defendants' evidence on these issues for the periods in question consisted of judicially-noticed figures from the 1970 census, statistical abstracts compiled by defendants from the qualification questionnaires returned by prospective jurors, and expert testimony on the statistical significance of this data. This evidence may be summarized in the following tables:

    A. Average of All Divisions on January 27, 1969 (sample size 12, 810) [a] Race Percentage on Percentage on Voting-Aged Statistical Master Jury Wheel Population Conclusion ----------------------------------------------------------------------- | Chicano | 6.935 | 10.3675 | Significant | ------------------------------------------------------------------------ B. Average of All Divisions on January 27, 1969 (sample size 2,840). Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Aged Population Conclusion ----------------------------------------------------------------------- | black | 1.07 | 2.61 | Significant | ----------------------------------------------------------------------- C. Denver Division from January 1972 through June 1973 (sample size, 723) Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Population Conclusion ---------------------------------------------------------------------- | Chicano | 4.88 | 8.93 | Significant | | black | 1.94 | 3.00 | Not Significant | ----------------------------------------------------------------------- D. Denver Division from January 1973 through December 1974 (sample size, 2020) Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Population Conclusion -------------------------------------------------------------------------- | Chicano | 6.73 | 8.93 | Significant | | black | 2.48 | 3.00 | Not Significant | ----------------------------------------------------------------------- E. Denver Division on July 30, 1973 and May 29, 1974 (composite sample size, 2111) Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Population Conclusion --------------------------------------------------------------------- | Chicano | 6.20 | 8.93 | Significant | | black | 1.94 | 3.00 | Significant [b] ---------------------------------------------------------------------- F. Grand Junction Division on July 2, 1973 (sample size, 832) Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Population Conclusion ------------------------------------------------------------------------ | Chicano | 4.81 | 8.89 | Significant | | black | 0.00 | 0.21 | Not Significant | ------------------------------------------------------------------------ G. Pueblo Division on July 6, 1973 (sample size, 872) Race Percentage on Percentage in Voting-Aged Statistical Returned Questionnaires Population Conclusion --------------------------------------------------------------------------- | Chicano | 12.84 | 16.29 | Significant | | black | 1.49 | 2.90 | Significant | --------------------------------------------------------------------------- [a] In contrast to the tables below, these figures were compiled from an examination of the actual Master Jury List rather than from returned juror questionnaires.

    [b] The apparent anomoly between this statistical conclusion and the conclusion reached in Table C is allegedly attributable to the larger sample size on this date. The contrary conclusion reached in Table D, however, is unexplained.

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    Setting aside for the moment the government's attempt to discredit these figures, 5 defendants' evidence establishes nothing more nor less than a very high statistical

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    probability that the voter registration lists, of which the master and qualified jury wheels were concededly representative, contained comparatively smaller proportions of Chicanos and blacks than the general voting-age population. The mathematical conclusion that the disparity between these two figures is "statistically significant" does not, however, require an a priori finding that these deviations are "legally significant" or that the Colorado jury selection plan fails to comply with either statutory or constitutional requirements.

  2. The Statutory and Constitutional Standards.

    Section 1861 of the Act provides:

    It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. . . .

    28 U.S.C. § 1861 (emphasis added). This "policy" is implemented by the requirement of section 1862 that "(n)o citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status." Section 1863(b)(2) directs the district courts to use voter registration lists or lists of actual voters as the initial sources of names for prospective jurors, with the former being the "preferred" source, and to...

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