Frazier v. United States

• Decision Date: 20 December 1948
• Docket Number: No. 44,44
• Citation: 69 S.Ct. 201,335 U.S. 497,93 L.Ed. 187
• Parties: FRAZIER v. UNITED STATES
• Court: U.S. Supreme Court

335 U.S. 497

69 S.Ct. 201

93 L.Ed. 187

FRAZIER

v UNITED STATES.

No. 44.

Argued Oct. 15, 1948.

Decided Dec. 20, 1948.

Rehearing Denied Jan. 31, 1949.

As Amended Feb. 14, 1949.

See 336 U.S. 907, 69 S.Ct. 488.

Mr. Edward Buckley, Jr., of Washington, D.C., for petitioner.

Mr. Robert W. Ginnane, of Washington, D.C., for respondent.

Mr. Justice RUTLEDGE delivered the opinion of the Court.

Petitioner's primary complaint is that he has been denied the trial 'by an impartial jury' which the Sixth Amendment guarantees. He was convicted of violating the Harrison Narcotics Act,¹ By a jury composed entirely of employees of the Federal Government. One juror Moore, and the wife of another, Root, were employed in the office of the Secretary of the Treasury, who is charged by law with responsibility for administering and enforcing the federal narcotics statutes.² As against objections based on these facts and other matters, the Court of Appeals affirmed petitioner's conviction and sentence. 82 U.S.App.D.C. 332, 163 F.2d 817. He has sought relief here by application for certiorari limited to the issues relating to the jury's selection and composition. To Review the determination made of them by the Court of Appeals we granted certiorari. 333 U.S. 873, 68 S.Ct. 896.

Petitioner's objections comprehend an attack upon the entire panel of prospective jurors, made during the course of voir dire examination, in an effort to have the panel stricken; a challenge to the jury as finally constituted, after petitioner had xhausted his ten peremptory challenges, voir dire examination had been completed, and the twelve jurors who tried the case had been qualified; and, either separately or in conjunction with his other objections,³ a claim of reversible error on account of the inclusion of Moore and Root as jurors. An adequate understanding of the issues thus raised requires a condensed statement of the proceedings followed in the DistrictCourt in the selection of the jury.

Pursuant to customary practice, those proceedings began with the seating in the box of twelve prospective jurors for purposes of examination on voir dire. These twelve had been chosen previously, in accordance with prevailing practice, from jury lists maintained to supply grand and petit juries for all divisions of the District Court. Cf. D.C. Code § 11—1401 et seq. There is no claim that those lists were improperly made up. The usual preliminary examination began and continued until the noon recess, as is later noted, with counsel raising no question concerning the constitution of the lists or the panel.

Petitioner inquired, among other things, how many were Government employees. Five of the original twelve indicated they were. One of these was excused by the court. The other four, including Moore, remained unchallenged and served on the jury. The seven remaining veniremen, including two housewives, were engaged in private occupations. All seven were challenged peremptorily by petitioner.

To replace them and the one excused by the court, others including Root were called from time to time, and were examined in substantially the same manner as the original twelve. Altogether they numbered thirteen, nine Government employees, two in private employment, and two the nature of whose work does not appear. Of the latter, one was excused by the court and the other peremptorily challenged by the prosecution. Petitioner peremptorily challenged both of those in private employment and one of the nine in Government service. This exhausted petitioner's peremptory challenges and left eight unchallenged Government employees to join the four like ones originally called in composing the twelve who made up the jury as finally chosen.⁴

The Process of selection was interrupted shortly before noon, when petitioner still had two unused peremptory challenges, by a shortage of veniremen. Anticipating that others would be available later in the day, the court adjourned until 2:30 p.m. On its reconvening, additional prospective jurors were available. But petitioner then moved for the first time to strike the entire panel for alleged irregularity in the method used for selecting it, asserted to have been discovered by counsel through 'a little investigation' during the noon recess. The court denied the motion, with leave to renew the objection in a motion for a new trial if petitioner should be convicted.⁵ The material part of the colloquy relating to these proceedings and disclosing the grounds for the motion and its denial is set forth in the margin.⁶

Petitioner then exercised his two remaining peremptory challenges, after which he inquired of the twelve jurors then impaneled how many were employed by the Government. When all indicated they were, petitioner challenged the jury as impaneled for cause. The challenge and the court's ruling in denial of it appear below.⁷ Although counsel sought to intermingle with this challenge the one previously made to the panel,⁸ the two are distinct attacks and must be treated separately.

I. The method of selecting the panel.—Apart from the objection that this challenge came too late, cf. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624, it is without merit. It consists exclusively of counsel's statements, unsworn and unsupported by any proof or offer of proof. The Government did not explicitly deny those statements. But it was under no necessity to do so. The burden was upon the petitioner as moving party 'to introduce, or to offer, distinct evidence in support of the motion.' Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 472, 86 L.Ed. 680. See also Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Tarrance v. State of Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572; Martin v. State of Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497; cf. Brownfield v. State of South Carolina, 189 U.S 426, 23 S.Ct. 513, 47 L.Ed. 882.

Of itself this failure in tender of proof would require denial of the motion. But even if proof had been made or offered there would have been no showing sufficient to require contrary action. The statements, if treated as allegations, comprehended in substance but two things. One was the very brief statement of facts relating to the procedure followed, namely, the subpoenaing of about five hundred jurors, their equal division for assignment to two branches of the court, and that those in each group who did not wish to serve were 'told to step to one side.' This was all in the way of facts. From them followed counsel's vague and general conclusion that the remaining number, from which it was said jurors were picked, 'consisted mostly of Government employees and housewives, and unemployed.' Counsel then urged that this furnished basis for applying the decision in Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412, as not affording 'a proper cross-section.'

The trial court rightly held the Thied case inapplicable, for the reasons that it requires a showing of systematic exclusion or attempt to exclude from the panel a particular occupational group or groups otherwise eligible for jury service, and the statements and conclusions of counsel here disclosed no such attempt. Beyond this, moreover, it seems highly doubtful that the facts set forth in the statement, if proved, would constitute any irregularity. Nothing is stated concerning the numbers who stepped to one side, their occupational classifications, whether they were excused or, if any, how many, by whom or for what cause. For all one could know from the statement, those stepping to one side may have included but one in ten, and of these, half or more may have been held for jury service after claiming exemption or seeking excuse. The facts stated, therefore, taken in the light of pertinent facts omitted lay no foundation whatever for counsel's conclusions, inferentially that jurors were selected only from those not standing aside, and explicitly that the remaining number 'consisted mostly of Government employees and housewives, and unemployed.' The statement was obviously insufficient to lay any foundation for valid attack upon the method followed in selecting the panel.

II. Composition of the jury.—The essence of this attack consists in counsel's statements, 'Now, I have exhausted my ten challenges, and here I have twelve Government jurors who are to decide this defendant's case, which is a violation of the Federal statute, being brought in a Federal Court, prosecuted by a Federal prosecutor, and the case is presented by Federal agents.'⁹ So put, the challenge has the sound of plausibility. Possibly it would have more of the substance of it if in this case it did not appear that petitioner himself was responsible, by deliberate choice, for the jury's final composition.

Given ten arbitrary choices among twenty-two prospective jurors not disqualified for cause, of whom thirteen were Government employees and nine privately engaged, he knowingly, of his own right, rejected nine of the latter and with knowledge or the full opportunity to secure it accepted without challenge all but one of the former. It would seem that ordinarily one anxious to secure a jury representative of both private and public employment in a community like Washington,¹⁰ and particularly to avoid overweighting the jury with Government employees, well might have found a more effective way of utilizing his peremptory challenges to achieve those objectives.

The right of peremptory challenge is given, of course, to be exercised in the party's sole discretion and was so exercised here. We do not question petitioner's privilege to utilize his peremptory challenges as he did. But the right is given in aid of the party's interest to secure a fair and impartial jury, not for creating ground t claim partiality which but for its exercise would not exist.¹¹ It does not follow that by using the right as he pleases, he obtains...