Chance v. United States
| Decision Date | 05 May 1964 |
| Docket Number | No. 19597.,19597. |
| Citation | 331 F.2d 473 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | Alvin CHANCE, Appellant, v. UNITED STATES of America, Appellee. |
J. Edward Worton, Joseph P. Manners, Miami, Fla., for appellant.
Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., J. Frank Cunningham, Marshall TaMor Golding, attys., Crim. Div., Dept. of Justice, Washington, D. C., Herbert J. Miller, Asst. Atty. Gen., Edith House, U. S. Atty., Southern Dist. of Florida, for appellee.
W. Sanders Gramling, W. G. Ward, Miami, Fla., Chester Bedell, Jacksonville, Fla., William C. Steel, George F. Gilleland, Miami, Fla., amici curiae.
Before BROWN, Circuit Judge, and WHITEHURST, District Judge.*
In the Petition for Rehearing the Appellant (1) attacks the substantive merits of the Court's opinion and (2) as new matter challenges the legality or propriety of Judge Whitehurst's participation in the decision of this Court as a Judge designated and assigned to sit as a member thereof under 28 U.S.C.A. §§ 292(a), 43(b). The Court is unanimously of the view that the challenge is unfounded and adopts as its own the following from the opinion prepared by Judge Cameron just prior to his death:
Alvin Chance was indicted by a grand jury in the United States District Court for the Southern District of Florida, Miami Division, on August 2, 1961, on a charge of violation of and conspiracy to violate §§ 5205(a), 5604(a) (1), 5686 (a), and 7206(4) of Title 26, U.S.C. (), and was tried before a jury and convicted March 6, 1962. On March 23, 1962, he was sentenced to one year and one day imprisonment, and gave notice of appeal to this Court on March 30, 1962. He promptly entered upon the service of his term of imprisonment, however, and was released on December 28, 1962. Meantime, he had, on December 4, 1962, filed his brief in this Court. During the months of December 1962 and January 1963, six attorneys appeared and filed or joined in briefs as amici curiae, having been granted permission so to do by orders of this Court. These attorneys represented litigants who had been indicted by the same grand jury as Chance.
The judgment of conviction was appealed to this Court upon the charge that the court below had erred in denying the appellant's motion to dismiss the indictment on the ground that the grand jury which had returned it had been summoned and empaneled contrary to law. The appeal was heard by a panel of this Court consisting of Judges Cameron and Brown, Circuit Judges, and Judge Whitehurst, District Judge. The opinion, 322 F.2d 201, et seq., was filed by Judge Whitehurst with the concurrence of Judge Cameron, Judge Brown dissented.
Judge Whitehurst had retired as a District Judge, but was serving upon special designation as a member of this Court.
The case was argued and submitted on April 8, 1963, and was in due time decided by the Court. At no time until the petition for rehearing was filed did any lawyer mention the possibility that Judge Whitehurst might be disqualified to participate in the decision of the case. Some of the attorneys who appeared as amici curiae were present at the time of the oral argument and the attorney representing appellant Chance was, at that time and is now, attorney for other litigants interested in the same question which was presented in the Chance case.
The essence of appellant's contention, joined in by each of the amici, is that Judge Whitehurst, having been Chief Judge of the Southern District of Florida, "may not reasonably be regarded as occupying a position of strict impartiality in respect to the validity of the jury selection procedures that prevailed in that district." In support of this contention, appellant points out that Judge Whitehurst was chief judge of said district from May 1, 1959 until May 18, 1961; that during his tenure, the Miami jury box was replenished, the challenged grand jury was drawn from the replenished box and empaneled; an indictment was returned by said grand jury in the case of United States v. Meyer et al., No. 12,007-M-Cr. from which the record in this case derives, and a challenge to the grand jury was asserted in that case; that during his tenure, the Orlando jury box was also filled and thereafter successfully challenged; that Judge Whitehurst himself presided at the trial of, and sentenced after conviction, two defendants indicted by the challenged grand jury. Appellant argues that "it is unrealistic to suppose that until this case was submitted to this Court Judge Whitehurst was unconcerned with and without knowledge of and attitudes about the juror selection procedures prevailing in the district."
Appellant does not charge, however, that a jury challenge was raised in either of the two cases mentioned...
To continue reading
Request your trial
-
United States v. Tropiano
...denied, 386 U.S. 1043, 87 S.Ct. 1489, 18 L.Ed.2d 618 (1967). 8 In Chance v. United States, 322 F.2d 201 (5th Cir. 1963), reh. denied, 331 F.2d 473 (1964), cert. denied, 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34 (1964), the same Circuit approved the use of a properly chosen key man suggestor ......
-
United States v. Anzelmo
...jury duty in state courts were considered for federal juries. In Chance v. United States, 322 F.2d 201 (5th Cir. 1963), reh. den. 331 F.2d 473 (5th Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34, the court restricted Hoffa to its facts, and refused to condemn the use of vot......
-
United States v. Kelly
...374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052; Chance v. United States, 5 Cir., 1963, 322 F.2d 201, 202-205, rehearing denied, 5 Cir., 1964, 331 F.2d 473, cert. denied, 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34; United States v. Kenner, S.D.N.Y., 1965, 36 F.R.D. 391. Suffice it to say that th......
-
Rabinowitz v. United States
...States v. Kelly, 2 Cir. 1965, 349 F.2d 720, 777-79; Chance v. United States, 5 Cir. 1963, 322 F.2d 201, 202-205, rehearing den., 5 Cir. 1964, 331 F.2d 473, cert. den., 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34. "The test is not whether voter registration lists are used, exclusively or otherw......