Beatrice Foods Co. v. United States

• Decision Date: 02 January 1963
• Docket Number: No. 16899.,16899.
• Parties: BEATRICE FOODS CO., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

312 F.2d 29 (1963)

BEATRICE FOODS CO., Appellant, v. UNITED STATES of America, Appellee.

No. 16899.

United States Court of Appeals Eighth Circuit.

January 2, 1963.

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George B. Christensen, of Winston, Strawn, Smith & Patterson, Chicago, Ill., Lyle E. Strom and Edgar R. Geesaman, of Fitzgerald, Hamer, Brown & Leahy, Omaha, Neb., on the brief, for appellant.

Donald L. Hardison, Atty., Dept. of Justice, Washington, D. C., Lee Loevinger, Asst. Atty. Gen., and Richard A. Solomon, Earl A. Jinkinson, James E. Mann and Robert L. Eisen, Attys., Dept. of Justice, Washington, D. C., on the brief, for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge.

BLACKMUN, Circuit Judge.

This is an appeal from the judgment entered upon a jury verdict that the defendant Beatrice Foods Co. was guilty of a conspiracy made illegal by § 1, as amended, of the Sherman Act, 15 U.S.C. § 1. A fine of $15,000 was imposed.

The indictment was returned in August 1958. It named Beatrice, Roberts Dairy Company and Alamito Dairy Company as defendants. All three defendants were engaged in the dairy business in the Omaha-Council Bluffs area. The indictment contained one count which charged that from January 1954 to April 1957 the defendants, in violation of the Act, "have engaged in a combination and conspiracy to eliminate and suppress competition in the sale of milk and cream" to the United States Veterans Administration Hospital in Omaha and to the United States Offutt Air Force Base near that city. Some of the specific features of the charge are quoted in the margin.¹

Roberts and Alamito submitted pleas of nolo contendere. These were eventually accepted by the court. Those two defendants were then adjudged guilty and a fine of $5,000 was imposed upon each of them.

Beatrice, the remaining defendant, moved, pursuant to Rule 6(b) (2), F.R. Cr.P., to dismiss the indictment for the reason that the grand jury which returned it "was drawn from a jury list which was not properly or lawfully selected". After a hearing this motion was denied. Beatrice then entered a plea of not guilty. On the basis of an affidavit of one of its attorneys Beatrice also moved to quash the indictment "because the indicting grand jury's sessions and deliberations were tainted and defendant was prejudiced by repeated acts of misconduct by the United States attorneys before said jury".

The case proceeded to trial. At the close of the government's evidence Beatrice moved for a judgment of acquittal and rested. The adverse verdict was returned and judgment was entered. Beatrice then renewed its motions for dismissal of the indictment and for judgment of acquittal and asked in the alternative for a new trial. These motions were all denied.

The defense urges here (1) improper selection of the grand jury; (2) misconduct of government counsel before the grand jury; (3) insufficiency of the evidence; (4) error in the reception of evidence, and (5) error in the instructions. We examine these points in turn and recite the pertinent facts as each is considered.

1. The challenge to the grand jury array. The governing statutes are 28 U.S.C.A. §§ 1861 and 1864. The former² prescribes as qualifications for both grand and petit jurors (a) United States citizenship; (b) attained age of 21 years; (c) one year's residence within the judicial district; (d) absence of a criminal record of the kind described in the statute; (e) ability to read, write, speak and understand English; and (f) mental and physical capacity to render efficient jury service. This section was given its present form on September 9, 1957, by the Civil Rights Act of 1957, Pub.L. 85-315, Part V, § 152, 71 Stat. 634, 638. Theretofore, the statute had required only residence in the district, rather than at least one year's residence there, and had also provided that one who was incompetent to serve as a juror by the law of the state where the federal court sat was also incompetent to serve as a federal juror.

Section 1864³ provides that the names of grand jurors shall be drawn from a box containing the names of not less than 300 then qualified persons and that the box shall be refilled from time to time by the clerk of the court and a jury commissioner having prescribed qualifications.

Beatrice's position is that § 1864 is mandatory and requires the clerk and the commissioner to place the names of 300 or more qualified persons in the box; that this duty of selection may not be delegated; that the procedure the clerk followed in selecting names for this grand jury did not meet the statutory requirements; and that Beatrice need not demonstrate individual prejudice to it by the selection procedures employed.

At the hearing on the motion to dismiss the indictment the following facts were developed and are not in dispute:

Mary A. Mullin was the clerk. She served in that capacity since 1939. The jury commissioner was G. V. Middleton. He was appointed in 1955. He died in July 1958. The Court's order for the grand jury was issued on October 23, 1957, only one month and two weeks after § 1861 was amended. The jury was drawn on November 6, was empaneled the following February, was excused for a time, and was reconvened in August 1958 when the indictment of the three defendants was returned.

Miss Mullin, since her appointment as clerk, maintained a list of prospective jurors. She kept this "revised constantly". Names and addresses were placed on cards. Names of women were on blue cards and those of men were on white cards. Middleton maintained his own card record. His was separate and apart from the clerk's and was not under her direction or supervision. His cards were orange. Miss Mullin had no knowledge as to how Middleton obtained his names. When this grand jury was empaneled Miss Mullin placed not less than 150 of her cards in the box and Middleton placed not less than 150 of his cards there. The clerk and Middleton did this by placing cards one at a time alternately in the box. Miss Mullin testified that she apportioned blue cards and white cards consistently but that she had no idea as to the proportion of the one group to the other.

The clerk employed the sponsor system practice of sending to certain persons in the district requests for recommendations of prospective federal jurors. The form she used for this purpose quoted § 1861 in full. It provided choices for names of men or of women or of both men and women; upon any particular use of this form she crossed out two of these three alternatives. She in fact requested names of persons of both sexes from time to time. On at least one occasion she used the form to ask for names of colored men.

When Miss Mullin received recommendations from her sources she checked the names submitted against her existing list. She then sent a mimeographed questionnaire to each person whose name was not already on her list. She did not add a name to the list upon its mere presentation by a sponsor.

The questionnaires were of two types. Each bore the name of the clerk and advised the recipient that he was a prospective federal juror. Each asked his age, occupation and address, and whether he was a voter. One type, the older, asked whether he was a federal employee. The other asked the name of his employer and whether he owned real estate in his own name. Miss Mullin conducted no personal interview with any prospective juror.

There was no evidence presented as to how the names on Middleton's list were selected.

It is important to note that Beatrice does not attack the indictment on the grounds (a) that any particular person on this grand jury was in any way not qualified, or (b) that the required number of names was not in the jury box, or (c) that the jury was not representative of the community in that an eligible group had been excluded in its selection. See, as to this last factor, Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181; Ballard v. United States, 1946, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181; Hoyt v. Florida, 1961, 368 U.S. 57, 59, 82 S.Ct. 159, 7 L.Ed.2d 118; Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84. Neither has Beatrice suggested or offered to prove individual prejudice to it as a defendant.

The attack, instead is directed to claimed deficiencies in the mechanics of the selective process. It is argued that the letters to the sponsors and the questionnaires "do not begin to provide sufficient information to determine whether or not that person is qualified to act as a federal juror under" § 1861, particularly with respect to the English language requirement, criminal record, infirmities, and the one year residence newly prescribed by the 1957 amendment. It is then said that the record clearly establishes that Miss Mullin did not know whether the names she placed in the box were those of qualified persons, that this is a breach of statutory duty, and that it is fatal to the indictment.

It was suggested long ago that the placing of names of qualified persons in the jury box is mandatory. United States v. Chaires, C.C.N.D.Fla., 1889, 40 F. 820, 821. Since then, some courts have specifically so held. United States v. Silverman, D.Conn., 1955, 129 F.Supp. 496, 511; United States v. Brandt, N.D. Ohio, 1955, 139 F.Supp. 362, 365. It has been said, too, that the duty of selection cannot be delegated by jury officials. Glasser v. United States, 1942, 315 U.S. 60, 85, 62 S.Ct. 457, 86 L.Ed. 680. However, Congress has prescribed no particular method of jury selection. "The choice of the means * * * rests largely in the sound discretion of the trial courts and their officers" under the guidance of the pertinent statutes. Thiel v. Southern Pacific Co., supra, pp. 220-221 of 328 U. S. p. 986 of 66 S.Ct.; Glasser v. United States, supra, p. 86 of 315 U.S. 457 of 62 S.Ct. There is a presumption that the jury officials have...