US v. Osorio, Crim. No. 2:92CR00032 (TFGD).

• Decision Date: 26 August 1992
• Docket Number: Crim. No. 2:92CR00032 (TFGD).
• Citation: 801 F. Supp. 966
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Luis Colon OSORIO.

801 F. Supp. 966

UNITED STATES of America v. Luis Colon OSORIO.

Crim. No. 2:92CR00032 (TFGD).

United States District Court, D. Connecticut.

August 26, 1992.

COPYRIGHT MATERIAL OMITTED

Susan Tipograph, New York City, David N. Rosen, New Haven, Conn., JoNel Newman, Linda Backiel, Conn. Civil Liberties Union, Hartford, Conn., for defendant.

Albert S. Dabrowski, U.S. Atty., John A. Danaher, III, Ronald S. Apter, Asst. U.S. Attys., for plaintiff.

RULING ON MOTION TO DISMISS INDICTMENT

DALY, District Judge.

Luis Colon Osorio, the defendant herein, has moved to dismiss the indictment filed against him on the grounds that the method of selecting jurors for his grand jury in the Hartford Division of the United States District Court for the District of Connecticut violated (1) the equal protection component of the Due Process Clause of the Fifth Amendment by discriminating against racial and ethnic minorities (i.e., blacks and Hispanics), (2) the fair-cross-section requirement of the Sixth Amendment, and (3) the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, et seq. ("Jury Selection Act" or "the Act"). After carefully considering the parties' extensive briefing and the evidence presented at a two-day hearing, the Court hereby grants the defendant's motion to dismiss for the reasons stated below.

BACKGROUND

I. Procedural History

This case has followed a less than direct route toward trial, replete with procedural missteps and false starts. On April 14, 1992, a federal grand jury, H-91-2, drawn from the 1989 Hartford Division jury wheel returned an indictment against the defendant, charging him with two counts of failing to appear in response to a court order in violation of 18 U.S.C. § 3146(a)(1). Following the defendant's arraignment before Magistrate Judge F. Owen Eagan on April 29, 1992, jury selection was initially scheduled for June 2, 1992. On May 22, 1992, attorney Susan Tipograph attempted to file a motion to dismiss the indictment or, in the alternative, to stay the proceedings, contending that the jury selection process in the District violated the Jury Selection Act in that the process systematically underrepresented, inter alia, blacks and Hispanics. The motion was returned undocketed to attorney Tipograph, however, because she had failed to file an appearance in this case.¹

In view of Attorney Tipograph's then pending request for admission to the bar of the District, her refusal to apply for admission pro hac vice at the Court's written suggestion, and the defendant's request that she represent him, the jury selection scheduled for June 2, 1992 was continued. On June 5, 1992 and after her admission to the bar, attorney Tipograph filed her appearance in this case. At a hearing held on that day, the Court appointed her as defendant's counsel pursuant to the Criminal Justice Act, continued the case again to the July 7, 1992 calendar call and set a June 10, 1992 filing deadline for any defense motions. Attorney Tipograph resubmitted the defendant's motion to dismiss on June 12, 1992. The Court denied the motion as untimely filed on the ground that it failed to comply with the Act's seven-day filing requirement. See June 23, 1992 Ruling. Later reconsidering the decision at the defendant's request, the Court adhered to the Ruling, noting that in addition to being untimely filed pursuant to the Act, the motion to dismiss was also untimely filed under the Court's own scheduling Order.

In conjunction with his motion to reconsider, the defendant also moved to dismiss the indictment on newly raised grounds, contending that the jury selection system violated the Fifth and Sixth Amendments to the United States Constitution. The motion was intended to be supported by a memorandum of law filed by attorney JoNel Newman, a staff attorney with the Connecticut Civil Liberties Union. However, as this Court does not usually permit limited appearances absent some showing of good cause, attorney Newman's motion for leave to file a limited appearance was denied without prejudice. Since attorney Newman's motion was denied, the accompanying memorandum in support of the defendant's motion to dismiss was returned to counsel by the Clerk of the Court. The Court then denied the defendant's motion to dismiss because it lacked a supporting memorandum of law. See Loc.R.Crim.P. 1 (incorporating Loc.R.Civ.P. 9(a)(1)).

At the July 7, 1992 calendar call, attorney Newman moved to renew her motion to appear for a limited purpose and to renew the defendant's motion to dismiss. The Court granted these motions and ordered the government to respond to the motion to dismiss by July 24, 1992. The defendant followed the government's timely submission with a reply brief on July 27, 1992. After considering the parties' submissions, and determining that an evidentiary hearing was appropriate, the Court held a hearing on July 28-29, 1992. The parties have since filed post-hearing memoranda, proposed findings of fact and proposed conclusions of law, as well as reply briefs in response to each side's post-hearing pleadings. The Court now considers the Record in this matter closed and the defendant's motion to dismiss ripe for determination.

In view of the Court's prior Rulings twice denying the defendant's challenge under the Jury Selection Act as untimely, the statutory claim will not be revisited. The two constitutional claims remain to be considered.

II. The District's Jury Selection Plan

As required by the Jury Selection Act, the District of Connecticut has adopted a "Plan for the Random Selection of Grand and Petit Jurors." The District's most recent plan ("the Plan") was adopted on December 4, 1989 nunc pro tunc November 19, 1988. Exh. 505 at 14. Except to the extent set forth below, the Court presumes familiarity with the jury selection procedures followed in the District of Connecticut and will not detail them herein. See United States v. LaChance, 788 F.2d 856, 862-63 (2d Cir.1986) (setting forth these procedures in detail). Finding that the voter registration lists in the State of Connecticut "represent a fair cross-section of the populace in the District of Connecticut," the Plan provides that the names of all grand and petit jurors serving in the District "shall be selected at random from the latest list of registered voters published by the registrars of the one hundred sixty-nine (169) political subdivisions within the Judicial District, which are available at the time the jury selection process commences." Exh. 505 at 3. For purposes of jury selection, the Plan segregates the Judicial District into three divisions: Hartford, New Haven and Bridgeport. Id. at 2. The Hartford Division encompasses the 84 towns situated in Hartford, Litchfield, Tolland and Windham counties. See exh. 515 (listing the 84 towns). The Plan mandates that the Master Jury Wheel ("Master Wheel") for each division be comprised of "substantially ten percent" of the names appearing on voter registration lists from those towns within each division. Exh. 505 at 6. The ten percent figure in the 1989 Plan represents a material change from earlier plans whereby the Master Wheel contained only one percent of the names on the voter registration lists.

In April 1989, Kevin Rowe, Clerk of the Court for the District of Connecticut ("Rowe" or "the Clerk"), sent a letter to each town's Registrar of Voters, requesting that each registrar send a copy of either the entire voter registration list or, if within the town's technical capabilities, ten percent of that list. See, e.g., exh. 531 (letter from Rowe to Shelton Registrar of Voters). Rowe included specific instructions in the letter regarding the procedure by which each town would select randomly ten percent of the names on its voter registration list, as well as the proper format for returning the list of names if a town was able to generate the list by computer. On returning the list of names to the Clerk, the Registrar of Voters was to certify in writing that he or she had complied with the procedures detailed in Rowe's letter. If a town returned its entire voter registration list, the Clerk randomly selected ten percent of the names for inclusion in the Master Wheel in the same manner detailed in Rowe's letter. If a town returned only ten percent of its list, that entire list was to be included in the Master Wheel.

By mid-September 1989, Rowe had received a list of names from each of the 84 towns within the Hartford Division. Some registrars provided Rowe with lists of names representing ten percent of the registered voters, while others provided him with a complete list of all the registered voters in their towns. Moreover, Rowe received the lists in varying forms. Some submitted the lists on either computer tape or diskette as set forth in Rowe's letter; others simply provided the information on paper lists. These lists comprise the sole source of names for the Master Wheel in the Hartford Division.²

Rowe compiled all the lists and delivered them in October 1989 to Richard Masotta ("Masotta") at the Yale University Computer Center. Masotta, Associate Director of the Computer Center, has an arrangement with the District to build and maintain the master and qualified jury wheels on computer for each of the District's three divisions. He has provided these services to the District since 1981. On receiving the lists, Masotta, with the help of his staff, entered the names into the computer. Access to the computer data base is limited to Masotta and his staff; a password, an identification number and a working knowledge of the computer program are necessary to gain access to the computerized jury lists. The names are entered into the data base by town. In order to "randomize" the list of names, Masotta sorts the list by different parameters, including name and street address, but not by town or zip code. In this way, Masotta testified, the names would be fully mixed and not stored geographically. The...