IN RE MAY 1972 SAN ANTONIO GRAND JURY

• Decision Date: 05 November 1973
• Citation: 366 F. Supp. 522
• Parties: In the Matter of the MAY 1972 SAN ANTONIO GRAND JURY.
• Court: U.S. District Court — Western District of Texas

366 F. Supp. 522

In the Matter of the MAY 1972 SAN ANTONIO GRAND JURY.

United States District Court, W. D. Texas, San Antonio Division.

November 5, 1973.

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Anthony Nicholas, San Antonio, Tex., Nago L. Alaniz, San Diego, Tex., for George B. Parr.

Marvin F. Foster, Jr., San Diego, Tex., Charles E. Orr, Houston, Tex., for Eunice E. Powell and Bryan P. Taylor.

William S. Sessions, U. S. Atty., John Clark, 1st Asst. U. S. Atty., San Antonio, Tex., for Government.

SPEARS, Chief Judge.

This matter grew out of indictments returned April 6, 1973, by the May, 1972 San Antonio grand jury, charging George B. Parr, Eunice E. Powell and Bryan P. Taylor, hereinafter referred to as movants, with evasion of income tax, and the filing of false and fraudulent returns, in violation of Title 26 U.S.C. §§ 7201, 7206(1) (Internal Revenue Code). On May 2, 1973, Judge Suttle of this district granted motions dismissing said indictments, noting that they charged the commission of offenses in either the Southern District of Texas or the Austin Division of the Western District of Texas, and saying, in part:

"As the Plan Providing for Random Selection of Grand and Petit Jurors in the Western District of Texas has been interpreted and implemented . . . , divisional grand juries cannot indict for offenses not committed within their respective divisions."

After the dismissal of the indictments, this Court, on May 3, 1973, granted the motion of the United States requesting the transfer of all grand jury exhibits and testimony to the federal grand jury in the Corpus Christi Division of the Southern District of Texas, for disclosure in connection with an investigation of possible violations of the Internal Revenue Code.

By motions subsequently filed in this Court, the movants sought to vacate this Court's order of May 3, 1973, and to suppress all testimony and exhibits presented to the San Antonio grand jury. Their contentions rest almost solely upon one sentence contained in the Plan Providing for Random Selection of Grand and Petit Jurors in the Western District of Texas, which provides: "Grand juries shall consider only cases triable in the division or divisions from which the grand jurors are drawn." Movants argue that since the offenses allegedly took place in either the Southern District of Texas, or in the Austin Division of the Western District of Texas, the substantive case could never have been tried in the San Antonio Division, and thus the plan bars any grand jury impaneled solely from the San Antonio Division from investigating any matters surrounding the alleged tax offense. As a consequence, they reason that all subpoenas issued or testimony or evidence received by the San Antonio grand jury are illegal from the inception. In addition, they maintain that they were entitled to notice and hearing prior to the transfer of the grand jury testimony and exhibits to Corpus Christi. For the reasons and to the extent hereinafter set forth, the relief sought by the movants is denied.

I.

The critical sentence in the local plan was adopted pursuant to the Jury Selection and Service Act of 1968. This Act, for the first time, implemented a nationwide system for the selection of federal juries by random drawings from voter registration lists.¹ Prior to the adoption of the 1968 Act, federal juries were selected by the "key-man" system, under which a jury commission or commissioner would ask "suggestors" to offer the names of those who met the statutory qualifications for jury service, and possessed "good character". Names solicited from the suggestors, from court personnel, and through the commission or commissioner's personal knowledge were placed in the master jury wheel. This system often resulted in racial, ethnic, and socio-economic imbalances, with jury panels far different from the actual make-up of the community from which they were drawn.

Federal juries were sometimes completely devoid of religious, racial or ethnic minorities, and were often characterized as "silk-stocking," since they were heavily weighted in favor of the more affluent in the community. In areas with a large black voting population, sometimes few, if any, of that group sat on either grand or petit juries. Clearly, this very personal and subjective selection system was subject to each and every bias and prejudice of the selectors, individually and collectively.

Under such a system, the representation of the community was no better than the knowledge, dedication and diligence of the jury commission or commissioner. Some commissions and commissioners simply chose those people familiar to them, and looked no further to the community at large. And yet even where commissions acted diligently and in good faith, abuse often resulted. As noted by the Fifth Circuit in Rabinowitz v. United States, 366 F.2d 34 (1966), when commissioners affirmatively attempted to select responsible and intelligent jurors, their exacting criteria would often lead them to the exclusion of prospective jurors they did not know. White jury commissioners, completely devoid of discriminatory intentions, suggested no blacks simply because of a total lack of contact and familiarity with the blacks in the community.²

On the other hand, the old key-man system could often operate in an assiduously fair manner, with diligent measures taken to insure that every identifiable racial, economic, geographic and professional group was represented. An extensive and comprehensive review of the selection procedures utilized in the San Antonio Division under the key-man system was made by Judge Henry N. Graven in United States v. Hunt, 265 F. Supp. 178 (W.D.Tex.1967), aff'd 400 F. 2d 306 (5th Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 629, 21 L.Ed.2d 566 (1969). In Hunt, Judge Graven described at great length the efforts of the jury commissioner to acquire representation by all groups, including black, whites, and Mexican-Americans, as well as various economic and age groups.³

However, rather than depend on the vagaries of individual commissioners in each division or district, Congress adopted the 1968 Jury Selection and Service Act, the policy of which, as delineated in 28 U.S.C. § 1861, is "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." The Act eliminated the key-man system, and instead substituted the mandatory requirement that the names for the master jury wheel be drawn at random from voter registration lists or from lists of actual voters, duly amended and supplemented and thus to keep them current, reflect the policy of the Act.⁴

The heart of the legislation — random selection from voter lists — struck at the primary complaints lodged against the key-man system. Use of voter lists and a random selection would eliminate any possibility of discrimination in jury selections; and the jurors in the master wheel would automatically correspond proportionately to the number of qualified voters of various ethnic and racial groups in the community, in addition to insuring the representation of socio-economic groups in accord with their community strength. Fairer and more representational grand juries would be selected with less work, and with less dependence placed upon the vagaries of personal knowledge. Section 1863 also provided significant leeway for local variations in the plans adopted by different districts, with the provision that plans so adopted be approved by the appropriate judicial councils.

II.

In the Plan for Random Selection of Jurors for the Western District of Texas,⁵ approved by the Fifth Circuit Judicial Council, the language, "grand juries shall consider only cases triable in the division or divisions from which the grand jurors are drawn," was included at the insistence of the Council.⁶ Presumably, the purpose of the provision was to make it less likely that the cross-sectional representation contemplated by the Act would be undermined by diluting minority groups in a sea of names taken from the voting populace of the district as a whole, or from another division with an entirely different population, economically, ethnically or racially. In any event, the quoted language must be considered in light of the amendments to Rule 18, F.R.Cr.P., promulgated in 1966, some two years prior to the enactment of the Jury Selection and Service Act of 1968. These amendments eliminated the venue provision requiring criminal trials to be held in the appropriate division,⁷ and provided that "the prosecution shall be had in a district in which the offense was committed."⁸

The notes of the Advisory Committee on Rules set out the reasoning supporting the change back to district-wide venue:

The former requirement for venue within the division operated in an irrational fashion. Divisions have been created in only half of the districts, and the differentiation between those districts with and those without divisions often bears no relationship to comparative size or population. In many districts a single judge is required to sit in several divisions and only brief and infrequent terms may be held in particular divisions. As a consequence under the original rule there was often undue delay in the disposition of criminal cases — delay which was particularly serious with respect to defendants who had been unable to secure release on bail pending the holding of the next term of court.

If the quoted language in this district's plan is construed as a limitation upon Rule 18, as amended, it may well be that it could not stand.⁹ However, it would seem that the language referred to would be completely consistent with the rule if it were interpreted to simply require that a defendant indicted in one division must be prosecuted in that same division. The Austin Division is one of the divisions in...