Government of Canal Zone v. Davis, No. 78-5397

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEWIN, HILL and FAY; JAMES C. HILL
• Citation: 592 F.2d 887
• Parties: GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Brian Kent DAVIS and Wolfgang Ludwig Otto Gossow, Defendants-Appellants.
• Docket Number: No. 78-5397
• Decision Date: 06 April 1979

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592 F.2d 887 GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee,
v.
Brian Kent DAVIS and Wolfgang Ludwig Otto Gossow,
Defendants-Appellants. No. 78-5397. United States Court of Appeals,
Fifth Circuit. April 6, 1979.

Michael Pancer, San Diego, Cal., for Davis.

Michael D. Nasatir, Los Angeles, Cal., for Gossow.

Frank J. Violanti, U.S. Atty., Balboa, Canal Zone, for plaintiff-appellee.

Appeals from the United States District Court for the District of the Canal Zone.

Before GEWIN, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case deals with the appellants' assertion that the District Court improperly denied their motion for inspection of jury records in connection with preparation and presentation of a motion challenging compliance with jury selection procedures under 28 U.S.C. § 1867. ¹ We agree with their

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argument and accordingly reverse their convictions and remand the case to the District Court with instructions to permit the inspection.

Wolfgang Ludwig Otto Gossow and Brian Kent Davis were charged by the Government of the Canal Zone in a four-count information with conspiring to import cocaine under 21 U.S.C. § 963 and with conspiring to possess with intent to distribute under 21 U.S.C. § 846. The remaining two counts charged Davis with aiding and abetting Gossow in the possession with intent to distribute cocaine under 21 U.S.C. § 841 and 18 U.S.C. § 2 and with aiding and abetting Gossow in importing cocaine into the United States under 21 U.S.C. § 952 and 18 U.S.C. § 2.

Several pretrial motions were filed on behalf of Gossow, among which was a "Notice of Motion and Motion for Inspection, Reproduction and Copying of Records and Papers in the Custody of and Used by the Jury Clerk in Connection with the Jury Selection Process Pursuant to 28 U.S.C. § 1867(d)(f)." The motion regarding discovery concerning the jury selection process was denied, and the case came to trial on April 3, 1978. The attorneys for Davis and Gossow observed that the jury panel appeared to consist entirely of Caucasian men and women, 90% of whom were between forty-five and fifty-five years old. On the basis of the denial of their pretrial motion concerning the jury selection process ² and their observation concerning the uniformity of the jury panel, the appellants and their attorneys elected to waive a jury trial and proceed with a trial before the court on stipulated facts.

After presentation of the stipulated facts, the District Court found the appellants guilty of conspiring to import cocaine into the United States and sentenced them to serve ten years in custody and to a special parole term of five years. Davis and Gossow appeal their convictions, contending that: (1) the District Court's denial of their motion for inspection and copying of jury records constituted reversible error; (2) the District Court for the District of the Canal Zone was without jurisdiction over the offenses charged in the information; (3) the evidence against Davis was insufficient to support his conviction; and (4) the District Court erred in not limiting the maximum

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sentence they could receive to five years in custody.

The appellants are correct in asserting that the District Court's denial of their motion for inspection and copying of jury records was reversible error. The Supreme Court's decision in Test v. United States,420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975), is dispositive of the issue. The Court held in Test that a litigant has an unqualified right to inspect jury lists under not only the plain text of the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1867(f), but also the Act's overall purpose of insuring "grand and petit juries selected at random from a fair cross section of the community," 28 U.S.C. § 1861. Having determined that an order was necessary to gain access to the records and having made the appropriate motion with an accompanying affidavit, ³ the appellants' right to inspect under § 1867(f) was violated when the District Court denied the motion. Since the appellants' right to inspection was unqualified, whether or not the accompanying affidavit established a prima facie case of defective jury selection process is of no import. Test v. United States, 420 U.S. at 29 n. 2, 95 S.Ct. 749. "Indeed, without inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious jury challenge." Id. at 30, 95 S.Ct. at 750.

The Government argues that the appellants' failure to file a motion to dismiss for defective jury selection process coupled with their counselled jury waiver and trial before the court on stipulated facts constituted an abandonment of their right to challenge the jury selection process. In light of the facts in this...