Chase v. United States

• Decision Date: 04 October 1972
• Docket Number: 18922,18920,No. 18915,18923.,18915
• Citation: 468 F.2d 141
• Parties: Frederick J. CHASE et al., Defendants-Appellants, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

468 F.2d 141 (1972)

Frederick J. CHASE et al., Defendants-Appellants, v. UNITED STATES of America, Plaintiff-Appellee.

Nos. 18915, 18920, 18922, 18923.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 1972.

Decided October 4, 1972.

Rehearing Denied November 1, 1972.

Anthony P. Locricchio, St. Clair Shores, Mich., Patrick J. Hughes, Jr., Frank W. Oliver, Arthur M. Sussman, Jerold S. Solovy, Chicago, Ill., for defendants-appellants.

James R. Thompson, U. S. Atty., Gordon B. Nash, Jr., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

Before dawn on May 25, 1969, appellants broke into the premises at 63rd and Western Avenue in Chicago, ransacked a Selective Service Office, removed large quantities of government records, and burned them in an alley behind the draft office.¹

Each of the eight appellants was indicted, tried before a jury, and convicted on each of four counts.² That each did the acts alleged is not disputed. Moreover, viewing the proceedings as a whole, it is equally clear that each defendant received a fair trial. Their appeals raise various procedural contentions in which we find no merit.

The reasons why we reject some of the contentions may be briefly stated. Subsequent to the trial of this case we affirmed the conviction of a participant in a similar incident in Milwaukee. The discussion of "motivation" and "intent" in United States v. Cullen, 454 F.2d 386 (7th Cir. 1971), adequately explains why we reject the arguments that the trial judge erroneously restricted appellants' testimony, and improperly instructed the jury, on the issue of "intent."

The contention that this indictment was multiplicitous is also foreclosed by the reasoning which persuaded us to reject a similar contention in Cullen. See 454 F.2d 386, 389. See also United States v. Chase, 309 F.Supp. 430, 433 (N.D.Ill.1970).

Appellants argue that count 4 of the indictment, alleging a conspiracy from April 15 to June 3, 1969, was, in effect, amended at trial because the government's evidence of conspiracy concerned only May 24 and May 25, 1969. The difference between the charge and the proof was not a variance³ and did not prejudice defendants.⁴

All appellants except Chase argue that they were entitled to a severance because they were prejudiced by his refusals to rise at the commencement of each court session, and by the court's determination that the refusals were contemptuous.⁵ Although Chase, of course, may have been prejudiced by his own obstinate refusal to conform to accepted court procedures, we find no basis in the record for inferring that any other defendant was prejudiced in the slightest. The denial of the motion for a severance was well within the trial judge's broad discretion. United States v. Cervantes, 466 F.2d 736 (7th Cir., 1972); United States v. Kahn, 381 F.2d 824, 838-841 (7th Cir. 1967); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965).

The remaining contentions are that (1) the grand and petit juries were improperly selected; (2) the voir dire examination of prospective jurors was inadequate; and (3) various categories of evidence offered to support the "insanity" defense were improperly excluded. We shall discuss these points separately.

I.

Defendants contend that "young adults" were inadequately represented on both the grand jury, which indicted them in June of 1969, and the petit jury, which tried them a year later. Whereas the "under 25 age group" represented about 8.7% of the total population in the Eastern Division of the Northern District of Illinois, only 2.3% of the May, 1970, venire was in this age bracket. This "under representation of the under 25 group" resulted from the facts (1) that the list of prospective jurors assembled in June of 1968 was not supplemented by the addition of citizens who attained the age of 21 thereafter but before the respective juries were selected, and (2) when the list was compiled, the source of names included voter registration lists from some counties which had been compiled in 1966. Thus, at the time of trial in 1970, all of the prospective jurors from those counties were at least 25 years old, and even those whose names were on voting lists in 1968 were at least 23.

Defendants contend that both their constitutional and statutory rights were violated. Although the two contentions are somewhat blurred in their brief, we shall discuss them separately.

A.

In support of their claim of a constitutional violation, appellants rely on cases holding that defendants indicted or convicted by juries from which black citizens were "intentionally and systematically excluded . . . solely on account of their race and color" are denied equal protection of the laws.⁶ Although these cases involved the application of the Equal Protection Clause of the Fourteenth Amendment to state criminal trials, presumably the Due Process Clause of the Fifth Amendment would prevent the federal government from making such an arbitrary classification of persons ineligible for jury service. Cf. Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884. See Peters v. Kiff, 407 U.S. 493, 501-504, 92 S.Ct. 2163, 33 L.Ed.2d 83. This record discloses no such irrational classification.

Defendants do not question the right of either Congress or the judiciary to specify a reasonable minimum or maximum age for jury service. A minimum age of 25 years was sustained by the First Circuit in 1965,⁷ and even though the minimum voting age has now been reduced to 18,⁸ defendants accept the validity of the 21-year minimum specified by the Jury Selection and Service Act of 1968.⁹ Accepting that minimum, defendants in effect argue that the government may not arbitrarily place "young adults" in a different category from their elders.

The first difficulty with this contention is that the government has not intentionally made any such classification between young adults and other adults; it is defendants who have elected to assemble certain statistical evidence relating specifically to the 21-24 age bracket for the year 1970 when they were tried. They acknowledge, however, that the factors which differentiate the attitudes of young jurors from their elders are not confined to an "under 25 class" but might as logically support a "young adult" category of up to 30 or even 35 years of age. There is no clearly defined class of young adults which has been the target of disfavored treatment in the selection of prospective jurors.

The second difficulty with the constitutional claim is that even if the statistical evidence is considered sufficient to raise an inference of discrimination against a vaguely defined class, that inference is dispelled by the fact that the under representation of "young adults" has a perfectly logical explanation which does not fit the "intentional and systematic" test applied in the racial discrimination cases. Since the number of citizens who have passed their twenty-first birthday changes every day, whereas lists of voters and lists of prospective voters are necessarily prepared and revised only on a periodic basis, some under representation of young adults on those lists is inevitable. The Jury Selection and Service Act of 1968 requires that jury lists shall be updated periodically; the Northern District of Illinois updates its lists every two years. Considering the cost and the administrative problems associated with the preparation and substitution of new lists, there is certainly no basis for an argument that the Constitution requires more frequent revisions even though more prompt updating might be desirable.

Similarly, although it no doubt would have been better practice for the Clerk of the United States District Court for the Northern District of Illinois to take whatever steps were necessary to obtain 1968 lists from the counties in which the most recent voter lists had been assembled in 1966, it is manifest that this failure was merely the consequence of a good faith effort to comply promptly with the newly enacted requirements of the 1968 statute.¹⁰ We find no basis in the record for a conclusion that there was systematic and intentional discrimination against young adults or any specific age grouping of citizens eligible for jury service.¹¹ There is no constitutional defect in either the grand jury or the petit jury.

B.

Defendants' principal attack on the jury panel is that the under representation of young adults violated the Jury Selection and Service Act of 1968. More narrowly, they contend that the Clerk's implementation of the new random selection plan did not give proper effect to the congressional declaration of policy set forth in 28 U.S.C. § 1861. That section provides, in part:

"It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. . . ."

They rely on cases holding that exclusion from service on account of sex, Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, or economic status, Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, requires that an indictment or conviction be set aside. They argue that the rationale of those cases also forecloses the exclusion of young adults from federal jury service.

The defects in their constitutional contention also undermine their statutory claim. Both Ballard and Thiel involved a "systematic and intentional" exclusion of the plainly identified class, unlike the by-product of a good faith attempt to implement a new plan evidenced by this record.¹²

Although the declaration of policy in § 1861 may impliedly prohibit systematic and intentional discrimination against any cognizable segment of the community, it is noteworthy...