Hansen v. United States

• Decision Date: 25 April 1968
• Docket Number: No. 18922.,18922.
• Citation: 393 F.2d 763
• Parties: Howard Dean HANSEN, a/k/a Dean Hansen, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

393 F.2d 763 (1968)

Howard Dean HANSEN, a/k/a Dean Hansen, Appellant, v. UNITED STATES of America, Appellee.

No. 18922.

United States Court of Appeals Eighth Circuit.

April 25, 1968.

Joseph H. Bottum, III, Pierre, S. D., for appellant.

David V. Vrooman, Asst. U. S. Atty., Sioux Falls, S. D., for appellee; Harold C. Doyle, U. S. Atty., on the brief.

Before MATTHES, GIBSON and HEANEY, Circuit Judges.

GIBSON, Circuit Judge.

Appellant Howard Dean Hansen was convicted of grand theft of 3 head of cattle from an Indian on the Crow Creek Indian Reservation in South Dakota in violation of Title 18 U.S.C. §§ 1152 and 661; and was sentenced to four years imprisonment and fined $1,000.

On appeal Hansen claims error, (1) in the denial of Hansen's motion to challenge the jury array, (2) in not sustaining Hansen's objection to the introduction of exhibits that were not furnished to Hansen (in accordance with a pretrial order on discovery), and (3) on the basis of the accumulated effect of the Court's ruling on the first two alleged errors, in the denial and receipt of evidence, and various miscellaneous complaints.

Hansen, a young man of 23, operated his mother's ranch which was located in close proximity to the ranch of an Indian, Jerome Irving. Irving missed some of his cattle in October 1965, and in the spring of 1966 the Production Credit Corporation, which had a mortgage on Irving's cattle, determined that 33 head were missing.

On October 5, 1965 Hansen sold 14 head of cattle at the Magness Faulkton Livestock Exchange¹ and on October 26, 1965 sold 25 head of cattle at the same Exchange. Bill Henderson purchased 6 head of the cattle sold by Hansen on October 26, 1965. Henderson then on April 21, 1966 sold these 6 head of cattle, along with other cattle. Sylvester Schmidt purchased 1 head of the Hansen cattle. Three of the heifers and 2 of the steers purchased from Hansen were sold to Ray F. Anderson on April 21, 1966 for the account of Kenneth O'Hare, which cattle along with other cattle were shipped to O'Hare at Ainsworth, Nebraska. Also on October 26, 1965 Hansen sold 3 head of cattle to Gerald Boekelheide, which were shipped to Boekelheide's son-in-law Dexter Gunderson at Irene, South Dakota.

The animal purchased by Schmidt was found to have Jerome Irving's Reverse RV brand on it, as did a cow found in the pasture of Gunderson, and as did 2 heifers found in the pastures of O'Hare. These cattle found in pastures near Highmore, South Dakota and Yankton, South Dakota were recognized by Irving as his cattle and were the subject of the indictment along with 1 of the 2 head of cattle observed in the pasture of O'Hare near Ainsworth, Nebraska.

In a pretrial order the Court ordered the Government to provide Hansen prior to May 1, 1967 with a copy of any books, papers or documents coming into the possession, custody or control of the Government, which the Government intended to utilize at the trial. Pursuant to this order the Government provided Hansen with several sellers' sheets, some buyers' sheets, the names and addresses of the present owners and possessors of the 3 cattle involved in the indictment and photographs of the 3 animals. It was necessary to use the livestock records to trace the 3 allegedly stolen cattle from the sale by Hansen on October 26, 1965 to the farms or ranches of Schmidt, Gunderson and O'Hare. The buyers' sheets, which were to a substantial extent, supplementary of the sellers' sheets, were examined by the Government on May 11, 1967 but were not furnished to, nor called to the attention of Hansen's counsel or the court. The trial Court allowed some of these buyers' sheets admitted into evidence over Hansen's objection. Hansen claims this was a clear violation of Rule 16(g), Fed.R.Crim.P. and that the trial Court should have either denied the admission into evidence of these records or else granted a continuance. The other errors complained of will be discussed in a consideration of Hansen's "catchall" objection of accumulated errors. Hansen did not take the stand but the record discloses that he had his own cattle brand and had about 35 head of cattle.

CHALLENGE TO THE ARRAY

Hansen contends that the jury was not representative of the community because an eligible group had been excluded in its selection; that he was individually prejudiced by the exclusion of farm laborers and by the inclusion of an inordinately large proportion of jurors from the upper economic and social classes. The hearing on the challenge to the array showed some 22,000 employed persons in the Central Division of the Court, which were further broken down into approximately 16,000 males and 6,000 females. Of the employed males 6,000 were employed as farmers or farm managers, almost 1700 as farm laborers or farm foremen and 741 employed as laborers; of the total employed population 9.1 per cent were employed as farm laborers or farm foremen and 3.5 per cent employed as laborers.

The affidavit in support of the challenge to the array related in the opinion of counsel for Hansen there were no persons on the jury with a family income of less than $5,000 and some testimony was adduced that there were few, if any, farm laborers on this or prior jury lists. There was also testimony that less than 5 per cent of the jurors, year in and year out, were under the age of 30. The record is not adequate to show how the jurors actually were selected, although apparently the key man system was used in securing names for the jury wheel. Neither the Clerk of the District Court nor the Jury Commissioner was called to testify. A typist for the Clerk testified she sent out the letters requesting the names of persons who might be qualified to serve as federal jurors. Approximately 50 per cent of the names were selected by the Clerk and 50 per cent by the Jury Commissioner. There was no evidence whatsoever of how the Jury Commissioner selected the names. Hansen sought to position himself as a young farm laborer and complains in particular of the exclusion from the jury lists of any farm laborers. The Government concedes that farm laborers and farm foremen are a separate economic class but contends that there was no systematic exclusion of any economic or social class in the selection of names for the master jury wheel.

Any litigant is entitled to a jury list selected from a cross-section of the eligible persons without discrimination as to race, religion, politics, economic, or social status. Under the existing federal system, the law having been changed in 1957² from an inclusion of state standard qualifications to a uniform federal standard of qualifications, any citizen who has attained the age of 21 years and resided within the judicial district for one year is competent to serve as a juror, unless he has been convicted of a felony or is unable to read, write, speak and understand the English language or unless he is mentally or physically incapable of rendering efficient jury service. Title 28 U.S.C. § 1861. The precise method of selection is not detailed by law,³ and the courts and appropriate officials are invested with discretion and considerable latitude in the selection of jurors. The officials, however, are under a duty to provide a fair and impartial jury list selected from the many eligible citizens residing in the district. We are not here concerned with the exemptions or exclusions and the only explicit statutory direction is that the jury box contain the names of at least 300 qualified persons at the time of each drawing; the box to be refilled from time to time by the Clerk of the Court and the Jury Commissioner. § 1864. By the same section the names are to be placed in the jury box without reference to party affiliations. There are other general guidelines for geographical selection to insure an impartial trial, and not to incur unnecessary expense. § 1865. Section 1866 even allows, when needed, the summoning of talesmen from the bystanders for petit juries. There is a specific direction in Title 28 U.S.C. § 1863(c) and in Title 18 U.S.C. § 243 against disqualifying any juror on account of race or color. Within these broad provisions and limitations the Clerk and the Jury Commissioner have the duty of selecting and composing a representative list of qualified jurors. This does not mean that every class and subclass or identifiable group must be represented on every list, but it does mean that there should be no systematic or intentional exclusion of any qualified person or group.

Mr. Justice Murphy in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946), set forth the appropriate standards to be applied in jury selections:

"The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury."

Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) condemned the systematic exclusion of persons of Mexican descent from jury...