In re U.S.

• Decision Date: 07 October 2005
• Docket Number: No. 05-2358.,05-2358.
• Citation: 426 F.3d 1
• Parties: In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — First Circuit

Page 1

426 F.3d 1

In re UNITED STATES of America, Petitioner.

No. 05-2358.

United States Court of Appeals, First Circuit.

Heard October 3, 2005.

Decided October 7, 2005.

Timothy Q. Feeley, Assistant United States Attorney with whom Michael J. Sullivan, United States Attorney, Lori J. Holik, Assistant United States Attorney and Theodore B. Heinrich, Assistant United States Attorney were on petition for a writ of mandamus, motion to stay district court order, and request for leave to file a supplemental brief.

Patricia Garin with whom Max D. Stern, Kenneth M. Resnik, Stern, Shapiro, Wiessberg & Garin, LLP, David P. Hoose, Katz, Sasson, Hoose & Turnbill, John H. Cuhna, Jr., Cuhna & Holcomb, P.C., Randolph Gioia, Elizabeth Billowitz, Law Office of Randy Gioia, Sarah Jennings Hunt, William C. Brennan, Jr., Brennan, Trainor, Billman & Bennett, LLP, George F. Gormley and George F. Gormley, P.C. were on opposition to the government's petition for a writ of mandamus and opposition to the government's motion to stay district court order for respondents Branden Morris, Jonathan Hart, Darryl Green and Edward Washington.

Charles W. Rankin, James L. Sultan and Rankin & Sultan on brief for Nancy Gertner, United States District Judge.

Jackie Gardina, Vermont Law School, on brief for Chief Judge William G. Young, Amicus Curiae.

Michael Avery, Suffolk Law School, on brief for National Lawyers Guild, Massachusetts Association of Criminal Defense Lawyers and Juvenile Justice Center of Suffolk University Law School, Amici Curiae.

Julia M. Wade, David J. Apfel and Goodwin Procter LLP on brief for The Boston Bar Association, The Committee for Public Counsel Services, and The National Association of Criminal Defense Lawyers, Amici Curiae.

William W. Fick, Martin F. Murphy, Foley Hoag LLP, Nadine Cohen, Barbara J. Dougan, Lawyers' Committee for Civil Rights, Dennis Courtland Hayes, General Counsel, Victor L. Goode, Assistant General Counsel, NAACP, Charles J. Ogletree and Charles Hamilton Houston Institute for Race & Justice on brief for Lawyers' Committee for Civil Rights Under Law Of The Boston Bar Association and Boston Branch of the NAACP, Greater Boston Civil Rights Coalition, Community Change, Inc., Jewish Alliance for Law and Social Action, Women's Bar Association, Massachusetts Black Lawyers Association, Charles Hamilton Houston Institute for Race and Justice, and Massachusetts Black Legislative Caucus, Amici Curiae.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Chief Judge.

In September 2003, the defendants were charged in federal district court, by a superceding indictment, with racketeering, 18 U.S.C. § 1962(c) (2000), racketeering conspiracy, id. § 1962(d), conspiracy to murder, id. § 1959(a)(5), and various assaults and firearms offenses. Two defendants were further charged with murder in aid of racketeering. Id. § 1959(a)(1). Shortly thereafter, the government advised that it would seek the death penalty against the latter two defendants if they were convicted of a specific murder charged in one of the counts.

In November 2004, one of the defendants moved to dismiss the superceding indictment, or in the alternative for an order to supplement the names contained in the master jury wheel currently in use in the district court. This defendant claimed that the jury selection process under-represented African Americans. At least some of the defendants are African American and all joined in this challenge.

The district judge held evidentiary hearings in January 2005 and received an expert report in April 2005. On September 2, 2005, with two of the defendants scheduled for trial on September 19, 2005, the district judge issued a 101-page decision and order. The judge rejected the defendants' constitutional attack but found that the current arrangements in this district for jury selection were unlawful under the statute. United States v. Green, ___ F.Supp.2d ___, ___, ___, 2005 WL 2109114, at *22, *32 (D.Mass. Sept.2, 2005).

In Massachusetts, as in other district courts, the jury selection process is governed by a "plan" adopted by the district court pursuant to the Jury Selection and Service Act ("JSSA" or "the statute"), 28 U.S.C. §§ 1861 et seq. (2000). The JSSA contains substantive requirements for such plans and specifies the procedures for adopting the plans. Each such plan must be adopted by a vote of the judges of the district court and then approved by a special review panel comprised of the circuit council and a designated judge of the district court in question. Id. § 1863(a). The current Massachusetts plan was revised in 2000 and is publicly available. Plan for Random Selection of Jurors (D.Mass.).

Under the Massachusetts plan, trials held in the Eastern Division of Massachusetts — a set of adjacent counties in the eastern part of the state — draw juries starting with a source list of names of residents from these counties. Plan §§ 2, 5(c). A random selection of names from the full source list is placed in a master jury wheel; a large number of names is then periodically drawn at random from the master wheel and sent jury summonses and qualification questionnaires; and after the returned questionnaires are vetted (e.g., to exclude disqualified persons), the remaining names go into a "qualified jury wheel" from which the needed number of jurors are randomly drawn and eventually dispatched to court when a jury or juries are to be selected. Plan §§ 8-10; see also 28 U.S.C. §§ 1863, 1864, 1866(a), (b).

In this case, the district judge determined from the evidence that although African Americans comprised over 6 percent of the Eastern Division population in the last several years, just over 3 percent out of all those who returned questionnaires (and identified their race) were African American. Green, ___ F.Supp.2d at ___, 2005 WL 2109114, at *7. For the period 2001-2003 inclusive, the average disparity was 3.66 percent. Id. at ___, *18. In short, African Americans appeared among the questionnaire answerers about half as often as their presence in the population of the Eastern Division.

Out-of-date (or otherwise incorrect) addresses and a lower response rate by African Americans than in the population as a whole appeared to be the main reasons for the disparity. Green, ___ F.Supp.2d at ___ - ___, ___ - ___, 2005 WL 2109114, at *20-*21, *30-*31. Some letters are returned to the jury administrator or clerk marked "undeliverable" (e.g., the addressee moved). Id. at ___-___, *20-*21. Others are not returned but no questionnaire is filed by the addressee — a category that includes some persons who never received a summons and questionnaire and others who did but chose not to return the questionnaire. Id. at ___, *21. Although such misdeliveries and nonresponses occur in all communities, the data suggest that they occurred proportionally more often in areas that contained more poor or minority inhabitants. Id. at ___-___, *20-*21.

After an analysis of existing case law and statutory provisions, the district judge concluded that no Sixth Amendment violation had been proved, Green, ___ F.Supp.2d at ___, 2005 WL 2109114, at *22, but that the statute required supplementation of the names originally drawn from the master wheel in order to remedy or ameliorate the racial disparity, id. at ___-___, ___-___, *27-*28, *31-*32. The district judge directed the federal jury administrator to draw an additional name from the master wheel, but from the same zip code, for each name to whom a questionnaire was sent that was returned "undeliverable"; for any questionnaire that was not returned at all after two attempted mailings to the same address, the same remedy was ordered. These newly drawn names, to the extent their questionnaires were returned, were then to be merged with original persons drawn who had returned their questionnaires.¹

This procedure would draw proportionately more supplemental names from zip codes where the original response rate had been low — which the evidence showed would tend to have a larger than average population of African Americans. Green, ___ F.Supp.2d at ___, 2005 WL 2109114, at *35. The process would in turn tend to produce a blended list of persons filing questionnaire answers containing a greater proportion of African Americans than the original list. The supplementation remedy adopted by the district judge thus sought to increase the likelihood of African Americans (and other groups similarly situated) appearing on the final jury in numbers more closely aligned with their presence in the Eastern Division's population.

After objecting to this remedy as inconsistent with the statute and with the current plan, see 28 U.S.C. § 1867(e), the government sought mandamus in this court to prevent the district court's use of the supplemented list. We granted a stay of the order and expedited our hearing on the mandamus petition, making clear that the district court was free to delay the upcoming trial, which it has now done. Issues of law are reviewed de novo, Porn v. Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 33 (1st Cir.1996); some deference may be accorded to a court's interpretation of its own jury plan, but only to a "reasonable interpretation." Cf. Nehmer v. Veterans' Admin., 284 F.3d 1158, 1160 (9th Cir.2002).

In this court, the defendants contest our authority to intervene. They argue that there is no final judgment in this case and that it does not fit within the few categories of criminal cases for which Congress has allowed interlocutory appeals. See 18 U.S.C. § 3731 (permitting, e.g., interlocutory appeal of suppression orders). The short answer is that well settled precedent treats mandamus as an alternative means of securing interlocutory relief in the limited class of extraordinary cases where the requirements for mandamus have been met.

The most familiar track, so-called "supervisory mandamus," is traditionally available where...