U.S. v. Hafen, 83-1156

• Decision Date: 01 February 1984
• Docket Number: No. 83-1156,83-1156
• Parties: UNITED STATES of America, Appellee, v. Darrell G. HAFEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 21

726 F.2d 21

UNITED STATES of America, Appellee, v. Darrell G. HAFEN, Defendant, Appellant.

No. 83-1156.

United States Court of Appeals First Circuit.

Argued Dec. 8, 1983.

Decided Feb. 1, 1984.

Owen S. Walker, Boston, Mass., for defendant, appellant.

Brackett B. Denniston, III, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN and BREYER, Circuit Judges, and MALETZ, ^* Senior Judge.

COFFIN, Circuit Judge.

Appellant Darrell Hafen was convicted of nineteen counts of mail fraud after a six-day jury trial in the United States District Court for the District of Massachusetts. Hafen raises two issues on this appeal. First, he argues that blacks were "systematically and substantially underrepresented" on the master wheel from which grand and petit jurors were selected, and that for this reason the court should have granted his motion to dismiss the grand jury's indictment. Second, he contends that his waiver of the counsel appointed to represent him at trial was not knowing and intelligent. We disagree with both propositions and affirm the conviction.

Juries in the Eastern Division of the District of Massachusetts are selected according to the District Court Selection Plan, which provides that a master pool be randomly selected from voter registration lists. Persons whose names are selected receive qualification questionnaires to determine whether they should be exempt from jury duty. The names of those who are not exempt are entered on the master jury wheel; both grand and petit jurors are selected randomly from this wheel. Appellant argues that because a smaller percentage of blacks than of whites registers to vote in the Eastern Division of Massachusetts, the use of voter registration lists alone, without supplementation from other sources, results in an underrepresentation of blacks on the master jury wheel.

It is well established that a defendant is entitled to a jury drawn from a fair cross section of the community, ¹ and that he has standing to assert a violation of the fair-cross-section requirement regardless of his race. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court established a three-part test for jury composition challenges:

"In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 364, 99 S.Ct. at 668.

Appellant meets the first part of the Duren test without difficulty: the Supreme Court has held that blacks are a "distinctive group" for the purposes of jury composition challenges. See Peters v. Kiff, 407 U.S. at 498-99, 92 S.Ct. at 2166, and cases there cited. In order to demonstrate to the trial court that the representation of blacks on the Eastern Division master jury wheel was not "fair and reasonable", appellant submitted an affidavit showing that of the persons who answered the question about race on the juror qualification questionnaire, ² only 1.714 per cent indicated that they were black. Appellant's affidavit also contained data from the 1980 Census indicating that 3.73 per cent of the Eastern District's population aged eighteen or over was black. The government filed its own affidavits identifying several flaws in appellant's statistics. In addition, the government's affidavits presented alternative statistics in support of the proposition that between 1978 and 1980, 2.87 per cent of those summoned for grand jury service and 2.02 per cent of the grand jurors who actually served were black.

Even if we accept appellant's figures as correct, they show only a 2.02 per cent "absolute disparity" in black representation--that is, the difference between the percentage of eligible blacks in the population and the percentage of blacks on the master wheel is 2.02 per cent. A number of circuits have found an absolute disparity of this size or even larger insufficient to show underrepresentation. See, e.g., United States v. Clifford, 640 F.2d 150 (8th Cir.1981) (absolute disparity of 7.2 per cent); United States v. Armstrong, 621 F.2d 951 (9th Cir.1980) (absolute disparity of 2.8 per cent); United States v. Maskeny, 609 F.2d 183 (5th Cir.1980) (absolute disparity of 10 per cent).

Appellant urges, however, that we adopt the "comparative disparity" method of calculating jury representation, which focuses on the percentage difference between the proportion of blacks eligible to serve as jurors (3.73 per cent) and the shortfall in black representation (2.02 per cent). Defendant argues that the comparative disparity of 54.2 percent in this case (calculated by dividing 2.02 per cent by 3.73 per cent) is sufficient to establish underrepresentation. In support of his argument, he cites dictum in Foster v. Sparks, 506 F.2d 805 (5th Cir.1975), to the effect that

"an intractable use of the absolute measure may, in certain circumstances ... produce distorted results. For example, if a district with 10% non-white population has .5% non-whites in the wheel, the 9.5% disparity may not evoke disapproval under an absolute measure but may require it under a comparative measure. Hence, flexible use of the two measures is advisable, with the selection of either to be guided by both a desire to avoid distorted results and a need to adequately protect the interests of those challenging the selection system." Id. at 835.

Appellant points out that the number of blacks in the Eastern Division is so small that the absolute disparity figure would be below 4 per cent even if every black in the region were excluded from jury service.

Although we acknowledge the possibility that the comparative disparity calculation might be a useful supplement to the absolute disparity calculation in some circumstances, ³ we do not believe that it necessarily produces a more accurate result where, as here, the group allegedly underrepresented forms a very small proportion of the total population. In fact, the smaller the group is, the more the comparative disparity figure distorts the proportional representation. For example, in an area that had 500,000 whites and only one black eligible to serve as jurors, a random selection system that failed to place the single black on the master wheel would produce a 100 per cent comparative disparity, even though an all-white jury would clearly form a "fair cross section" of the community. We agree with the conclusions of the court in United States v. Whitley, 491 F.2d 1248 (8th Cir.1974), that the comparative disparity calculation "is ordinarily inappropriate where a very small proportion of the population is black" and that "in such a circumstances [it] distorts reality". Id. at 1249.

Even if we believed that the comparative disparity calculation was appropriate in the circumstances of the case before us, we would be reluctant to perform such a calculation in this case. A small variation in the figures used to calculate comparative disparity can produce a significant difference in the result, and the appellees have demonstrated that there is reason to doubt the accuracy of the figures on which appellant would have us rely. We therefore conclude that appellant has failed to carry his burden of showing underrepresentation and do not reach the "systematic exclusion" prong of the Duren test.

We turn next to appellant's claim that the district court committed reversible error by failing to warn him of the hazards of proceeding pro se and by failing to make findings that his waiver of counsel was knowing and intelligent. In essence, appellant argues that the district court has failed to meet the standard for waiver of counsel established in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975):

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Id. at 835, 95 S.Ct. at 2541 (citations omitted).

The Supreme Court has also held that the fact of waiver may not be presumed or inferred from a silent record, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), and that "it would be fitting and appropriate" for the record to reflect the trial court's finding of effective waiver, Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

This court has not interpreted these decisions to mean that the district court must issue a particular warning or make specific findings of fact before it allows the defendant to proceed pro se. Instead, we have held:

"[T]he defendant's knowledge of [the disadvantages of self-representation] need not appear on the record at trial. The district court may properly consider, in addition to [the defendant's] background, experience and conduct, such factors as his involvement in previous criminal trials, his representation by counsel before trial, and the continued presence of advisory counsel at trial ...." Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir.1976) (citations omitted).

Although appellate review would be...