659 F.2d 590 (5th Cir. 1981), 81-7285, United States v. Bearden

Docket Nº:81-7285.
Citation:659 F.2d 590
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Richard BEARDEN, Clarence Stowers, Jr., and Farrell Nixdorf, Defendants- Appellees. UNITED STATES of America, Plaintiff-Appellant, v. BROWNING-FERRIS INDUSTRIES OF GEORGIA, INC.; Georgia Waste Systems, Inc.; SCA Services of Georgia, Inc.; Complete Refuse Removal, Inc.; James L. Baker; Raymond E. Din
Case Date:October 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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659 F.2d 590 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,


Richard BEARDEN, Clarence Stowers, Jr., and Farrell Nixdorf,

Defendants- Appellees.

UNITED STATES of America, Plaintiff-Appellant,



Systems, Inc.; SCA Services of Georgia, Inc.; Complete

Refuse Removal, Inc.; James L. Baker; Raymond E. Dinkle;

Charles W. Langello; and Roy P. Fowler, Jr., Defendants- Appellees.

UNITED STATES of America, Plaintiff-Appellant,



Harry Norman & Associates, Inc.; Clover Realty

Co.; Edwin A. Isakson; Chandler B.

Barton; and Harry Norman, Jr.,


No. 81-7285.


Unit B [*]

United States Court of Appeals, Fifth Circuit

October 19, 1981

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[Copyrighted Material Omitted]

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Richard H. Dean, Jr., Janet F. King, Dorothy Kirkley, Asst. U. S. Attys., Carl W. Mullis, John R. Fitzpatrick, Atlanta, Ga., John J. Powers, III, Marion L. Jetton, Washington, D. C., John T. Orr, Jr., Atlanta, Ga., Attys. Antitrust Div., for the U. S.

Scott McLarty, Decatur, Ga., for Stowers.

Robert Altman, Mary S. Donovan, Federal Defender Program, Atlanta, Ga., for Bearden.

John R. Martin, Atlanta, Ga., for Nixdorf.

John R. Martin and Edward T. M. Garland, Atlanta, Ga., and Joseph V. Giffin, Chicago, Ill., for Georgia Waste Systems.

Hugh W. Gibert, Halsey G. Knapp, Jr., Atlanta, Ga., for Browning-Ferris Industries of Georgia.

C. David Vaughan, Atlanta, Ga., for Georgia Waste Systems and Raymond E. Dinkle.

Hugh Peterson, Jr., Larry D. Thompson, Atlanta, Ga., for SCA Services, Inc.

Michael A. Doyle, Frank G. Smith, III, Atlanta, Ga., for Complete Refuse Co.

D. Robert Cumming, Jr., Charles T. Lester, Jr., Atlanta, Ga., for James L. Baker.

Charles M. Kidd, Woodrow Vaughan, Jr., Atlanta, Ga., for Charles W. Langello.

Joe H. Bynum, Jr., Atlanta, Ga., for Clover Realty.

David Kairys, Philadelphia, Pa., for all defendants Northside Realty, et al.

Michael A. Doyle, Frank G. Smith, III, Atlanta, Ga., for Roy P. Fowler.

Thomas W. Rhodes, Harold L. Russell, William Maycock, Atlanta, Ga., for Northside Realty.

Richard D. Elliott, David LaVance, Jr., Atlanta, Ga., for Barton & Ludwig, Inc., and Chandler B. Barton.

Trammell E. Newton, Trammell E. Vickery, Atlanta, Ga., for Harry Norman & Associates, Inc. and Harry Norman, Jr.

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

Before RONEY, VANCE and RANDALL, Circuit Judges.

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RONEY, Circuit Judge:

This case presents an extensive challenge to the selection of grand juries in the Northern District of Georgia. The district court dismissed numerous indictments on the ground the selection process failed to comply with the Jury Selection and Service Act. 510 F.Supp. 668 (N.D.Ga.1981). We reverse, holding that several of defendants' claims were not timely presented and that the remaining claims did not establish substantial violations of the Act. Because constitutional issues raised by defendants were not addressed by the district court, we remand for that purpose.

Three groups of defendants are involved in this case, all indicted during 1980 by federal grand juries in the Northern District: (1) the "real estate" defendants, indicted jointly for criminal antitrust violations; (2) the "garbage case" defendants, also indicted jointly for antitrust violations; and (3) the "individual" defendants, indicted separately for various federal crimes. Although one of the individual defendants was charged by information rather than by indictment, he will be treated for purposes of this appeal as though indicted.

In August 1980, the real estate defendants filed a motion to dismiss their indictment on the ground the grand jury selection process violated the Jury Selection and Service Act (the "Act"), 28 U.S.C.A. § 1861 et seq., and the Local Plan adopted thereunder. They also asserted various constitutional deficiencies. This motion culminated several months of investigation of grand jury records and practices in the clerk's office. The garbage case and individual defendants later filed motions to dismiss which were based on the findings and claims of the real estate defendants.

Proceedings on the motions were consolidated by agreement of the parties. In January 1981, the district court held a nine-day hearing in which it received evidence consisting of voluminous exhibits, live testimony and depositions, and heard extended oral arguments of counsel.

In a lengthy opinion, the court rejected the Government's challenge to the timeliness of the real estate and garbage defendants' claims. On the merits, the court found numerous violations by the clerk's office of the Act and Local Plan. Holding the violations to be substantial, it dismissed the indictments pursuant to the Act. 1 Because of its disposal of the case on statutory grounds, the court declined to reach the constitutional issues.

The Government appeals from the dismissal of five of the indictments: those of the real estate and garbage case defendants and three of the individual defendants. It challenges both the rejection of the timeliness claim and the finding of substantial violations of the Act.

I. The Jury Selection and Service Act and the Local Plan

Before addressing the specific issues, which relate generally to how the clerk drew names from the jury wheels and excused persons from jury service, it will be helpful to briefly outline the general statutory scheme as well as the jury selection process in the Northern District of Georgia. The Jury Selection and Service Act, enacted in 1968, seeks to ensure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service. 28 U.S.C.A. § 1861. See also H.R.Rep. No. 1076, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 1792, 1792 (hereinafter House Report ). The Act prohibits discrimination on account of race, color, religion, sex, national origin, or economic status. 28 U.S.C.A. § 1862.

The Act provides that each district court shall devise a written plan, known as a

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"local plan," to achieve the twin objectives of nondiscrimination and opportunity of service. The plan must be approved by the judicial council of the circuit in which the district is located. 2 While leaving the district courts a certain degree of flexibility in designing a plan to accommodate local conditions, the Act does prescribe a general procedural scheme to be followed.

A Local Plan was devised for the Northern District and approved by a reviewing panel of this Circuit's Judicial Council. Pursuant to the Act and Plan, the district uses voter registration lists from each of its counties. Names are selected from the lists to assure proportional representation for the four divisions in the district. A master wheel computer tape is then created in which the selected names are placed in alphabetical order and each name is given a number. The tape retains divisional identity for each name.

The names on the master wheel are used to construct the qualified jury wheels, one for each division. The computer, which is operated by the General Services Administration (GSA), addresses standard Juror Qualification Questionnaires to the persons on the master wheel. These forms are mailed with the request they be signed, dated and returned to the clerk's office.

Upon receipt by the clerk's office, the questionnaires are screened to determine whether they should be included or excluded from the respective qualified wheels. There are several grounds on which persons may be excused, exempted or disqualified from jury service. These will be discussed more fully later.

When a prospective juror is found qualified, this fact is noted on a computer card. The card is then returned to the GSA, which feeds the information to the computer for recording on the master wheel tape. Thus, the qualified wheels consist of prospective jurors marked "qualified" on the master wheel tape. There is apparently no separate tape or computer printout of only qualified jurors.

When the court requires a panel of jurors, grand or petit, it sends an order to the clerk's office. The clerk or his designate is responsible for drawing the names for the panel, selected in proportion to the number of qualified jurors in each division. A grand jury panel usually numbers fifty, of which 33 are picked from the Atlanta division, 8 from Rome, 5 from Newnan, and 4 from Gainesville. Angela Turner, the jury clerk, was placed in charge of this selection process in the Northern District.

To select the names for a given panel, the following procedure is used. An "increment" or "quotient" number is first calculated for each division. An increment equals the number of qualified jurors remaining in a division's qualified wheel divided by the number of jurors needed from that division. For example, if the qualified wheel for the Atlanta division contains 16,500 names and 33 names are needed from

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that division, the increment would be 16,500 / 33, or 500. The jury clerk then selects a "starting number," which is to be drawn at random from a drum or a wheel containing cards numbered from one to the increment number. Public notice is required to be posted both before and after the selection of starting numbers.

Once the increment and starting numbers have been chosen for each division, the jury clerk fills out "transmittal" forms which are delivered to the GSA. The GSA then picks, as the first name from each divisional wheel, the prospective juror whose position in the qualified wheel corresponds to the starting number picked by the clerk's office. Thereafter the computer...

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