729 F.2d 1325 (11th Cir. 1984), 82-8163, United States v. Tuttle

Docket Nº:82-8163.
Citation:729 F.2d 1325
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Allen TUTTLE and Dean Frederick Vereen, Defendants-Appellants.
Case Date:April 16, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1325

729 F.2d 1325 (11th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Allen TUTTLE and Dean Frederick Vereen, Defendants-Appellants.

No. 82-8163.

United States Court of Appeals, Eleventh Circuit

April 16, 1984

Page 1326

Robert Altman, Federal Public Defender, Paul H. Kehir, Atlanta, Ga., court-appointed, for defendants-appellants.

Richard B. Kuniansky, Atlanta, Ga., for plaintiff-appellee.

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

Before VANCE and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

VANCE, Circuit Judge:

Charles Allen Tuttle and Dean Frederick Vereen were convicted of conspiracy to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846. On this appeal from their convictions they raise numerous issues, only one of which merits our attention here. 1 Appellants assert that their sixth amendment right to be tried by a jury drawn from a source representing a fair cross-section of the community was violated because the petit jury wheels in the Atlanta division of the northern district of Georgia underrepresent blacks. Appellants alternatively urge that this underrepresentation violates

Page 1327

the statutory provisions of the Jury Selection and Service Act of 1968. For reasons that appear below we reject appellants' arguments and affirm their convictions.

There can no longer be any doubt that the sixth amendment guarantees a criminal defendant the right to a jury selected from a group representing a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Obviously, a perfect match between the composition of a community and the composition of a jury venire is not possible, given the limitless variations in human characteristics, and the Constitution does not require so much. The Supreme Court in Duren set forth the elements a defendant must establish to demonstrate a prima facie violation of the fair cross-section requirement:

(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.

439 U.S. at 364, 99 S.Ct. at 668.

Appellants here, like others before them, stumble on the second requirement of Duren. While the Supreme Court has never pronounced an immutable threshold disparity that a defendant must show, Gibson v. Zant, 705 F.2d 1543, 1547 (11th Cir.1983), this circuit has consistently required an absolute disparity of over 10% between the underrepresented group's proportion of the general or age-eligible population and its representation on the venire before a prima facie case is established. Butler v. United States, 611 F.2d 1066, 1069-70 & n. 9 (5th Cir.) (9.14% insufficient), cert. denied sub nom. Fazio v. United States, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980); United States v. Maskeny, 609 F.2d 183, 190 (5th Cir.) ("as much as ten percent" insufficient), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980). This court has rejected an equal protection challenge to a grand jury venire that, under one alternate stipulation of facts, underrepresented blacks by 9.67%. United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1126-27 (11th Cir.) (en banc), cert. denied, 454 U.S...

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