Gorin v. United States, 5997-5999.

• Citation: 313 F.2d 641
• Decision Date: 20 February 1963
• Docket Number: No. 5997-5999.,5997-5999.
• Parties: Paul A. GORIN, Defendant, Appellant, v. UNITED STATES of America, Appellee. Henry GRILLO, Defendant, Appellant, v. UNITED STATES of America, Appellee. Saul GLASSMAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

313 F.2d 641 (1963)

Paul A. GORIN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Henry GRILLO, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Saul GLASSMAN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5997-5999.

United States Court of Appeals First Circuit.

February 20, 1963.

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Francis J. DiMento, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on brief, for Paul A. Gorin, appellant.

Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for Henry Grillo, appellant.

James D. St. Clair, Boston, Mass., with whom Blair L. Perry and Hale & Dorr, Boston, Mass., were on brief, for Saul Glassman, appellant.

John J. Curtin, Jr., Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., William F. Looney, Jr., and Paul A. M. Hunt, Asst. U. S. Attys., were on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

These three appellants and one Nathaniel Bergman of Hartford, Connecticut, were indicted by a grand jury in the court below on three counts. Count 1 charges the three appellants and Bergman with conspiring (1) to bribe one Charles J. McCaffrey, an employee of the Internal Revenue Service of the United States Department of the Treasury, and (2) to defraud the United States in its governmental functions by depriving it of McCaffrey's conscientious, honest and faithful service in violation of Title 18 U.S.C. § 371. Count 2 charges Bergman and the appellants Glassman and Gorin with giving McCaffrey $10,000 with intent to influence his decision and action on a matter at the time pending before him in his official capacity, in short with bribery, in violation of Title 18 U.S.C. § 201. Count 3 describes Grillo as a United States officer acting in connection with the revenue laws of the United States and charges him alone with conspiring with the other three, who were named as co-conspirators but not as co-defendants, to defraud the United States in its governmental functions in violation of Title 26 U.S.C. § 7214 (a) (4).

Following the denial of a number of preliminary motions to be discussed presently, the four defendants were tried by jury on pleas of not guilty, were found guilty as charged and were sentenced. All appealed, but Bergman withdrew his appeal before hearing.

Before the trial began each defendant moved to dismiss the indictment and to strike the entire panel of petit jurors on the ground that both the grand and petit jurors had been improperly selected. The motions were denied after a hearing at which evidence was taken.

The evidence adduced shows that the jury commissioners of the United States District Court for the District of Massachusetts selected persons for service as jurors from the jury lists of the various cities and towns in Massachusetts, that the City of Boston was within the part of the district designated by the district court under Title 28 U.S.C. § 1865(a) as the source from which the jurors with whom we are here concerned were drawn, and that the Boston Election Commission, the body charged by local law with the annual preparation of jury lists for the City of Boston, picked jurors at random from the lists of registered voters in the various wards of the city and then, by reference to the list of inhabitants prepared annually by the city police department, weeded out those exempt by law because of their occupations, such as clergymen, lawyers or doctors, and following this by personal interviews weeded out those physically or mentally unfit for jury service and those with an inadequate command of the English language. The contention is that the jury commissioners' method of selection, resting as it does in part upon the method of selection used in Boston by the Boston Election Commission (it does not appear whether the same method of selection was used by local authorities in the other cities and towns of the part of the district involved), violates § 1861 of Title 28 U.S.C. quoted in material part in the margin¹ because it automatically excludes citizens who are not registered to vote. The argument is that eligible voters who have not registered constitute a definite group or class in the community, that is to say, an apolitical or politically dormant group, and that exclusion of that class or group from jury service results in juries which do not represent "a cross-section of the community" as required, so it is said, by Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 986, 90 L.Ed. 1181 (1946).

The argument rests upon too literal a reading of the phrase quoted above, for it has never been the law that a jury must represent a true cross-section of the community. See Report of the Committee on the Operation of the Jury System to the Judicial Conference of the United States, September 1962 at page 6. Certain groups, as by §§ 1862 and 1863 of Title 28 U.S.C., are and time out of mind have been exempted from jury duty, some for the general public interest, such as public officials or members of the armed forces, and others, such as convicted felons, minors and persons unable to understand the English language, for the effective operation of the jury system. And the Court in the Thiel case clearly recognized the established practice of exempting certain persons from jury service by explaining that what it meant by the sentence wherein it used the phrase "a cross-section of the community" was only that prospective jurors must be selected by court officials without systematic and intentional exclusion of any economic, social, religious, racial, political or geographical group in the community.

For a variety of reasons we reject the argument that eligible persons who do not register to vote constitute a "political" group in the community. In the first place the group does not include only the politically inert. It includes also the politically alert who may perhaps have lived for a year or more in the district but not long enough in their ward to be eligible to register to vote. In the second place, the group has no distinct or definable outlines, for in addition to persons who have just moved into a ward, it includes not only the completely apathetic but also those who might register to vote only when interested in a particular election. It includes persons of varying shades of political interest. And in the third place we think the Court in referring to a political group in the Thiel case meant the members of some defined political party or group.

This does not mean blanket endorsement of jury selection directly or indirectly from voting lists. It means that voting lists may be used as the basis for jury selection unless it appears that in the community there is systematic and intentional exclusion from those lists of a particular economic, social, religious, racial, geographical or political group. When such a showing is made some other basis of selection must be used. Here, however, the appellants have not shown that in Boston any enumerated class is systematically and intententionally discriminated against in registering to vote. Indeed the evidence is quite to the contrary. The appellants' contention fails for lack of any evidence of discrimination in the preparation of the lists of Boston voters. Compare United States v. Hoffa, 196 F.Supp. 25 (S.D.Fla., 1961), with United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y., 1961).

Also before trial the appellants severally moved to dismiss the indictment because it had been returned by grand jurors calculatedly prejudiced against them by government-inspired publicity. We think the court below very properly denied the motions.

The appellants characterize the publicity of which they complain as "massive," and describe it as "blanketing" the Commonwealth of Massachusetts. It boils down, however, to news releases printed in local newspapers and repeated in substance over radio and television on August 26, 1961, the day two of the appellants and Bergman were arrested, and for the next two days, purporting to quote the Attorney General as extolling the vigor, skill and integrity of the Internal Revenue Service and as saying that the Charles J. McCaffrey mentioned in the indictment had reported Glassman's offer to bribe him to his superiors and upon their instructions had pretended to go along with the plan and "is a courageous American and typifies the loyalty and integrity of the men of the Internal Revenue Service."

The appellants admit that their contention "presupposes" that there is either a right under the Fifth Amendment of the Constitution of the United States to be indicted by grand jurors free of calculated government-instigated prejudice or else that proper standards for enforcement of the criminal law in the federal courts sanction only indictment by a grand jury uninfluenced by improper forces generated by the prosecutor. They must also "presuppose" that they do not need to show that in fact the grand jury which indicted them did not perform its sworn duty to act with impartiality but instead was actuated by government-inspired bias and prejudice. We are not prepared to grant these "presuppositions." So far as we are aware, none has the sanction of any decision of the Supreme Court of the United States and all have been rejected in one or another carefully considered opinion of a lower federal court. See United States v. Nunan, 236 F.2d 576, 592 et seq. (C.A.2, 1956), cert. den. 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957); Beck v. United States, 298 F.2d 622 (C.A.9, 1962), cert. den., 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); United States v. Dioguardi, 20 F.R.D. 33 (S.D.N.Y., 1956); United States v. Hoffa, 205 F.Supp. 710 (S.D.Fla., 1962). But even if we should accept the "presuppositions," which we by no means imply, we would still reject the appellants' contention.

We do not approve of...