U.S. v. Carmichael, Criminal Action No. 2:03cr259-MHT.

• Decision Date: 18 December 2006
• Docket Number: Criminal Action No. 2:03cr259-MHT.
• Parties: UNITED STATES of America v. Leon CARMICHAEL, Sr. and Freddie Williams.
• Court: U.S. District Court — Middle District of Alabama

Page 1282

467 F.Supp.2d 1282

UNITED STATES of America v. Leon CARMICHAEL, Sr. and Freddie Williams.

Criminal Action No. 2:03cr259-MHT.

United States District Court, M.D. Alabama, Northern Division.

December 18, 2006.

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Carmen D. Hernandez, Washington, DC, James Kenneth Jenkins, Maloy & Jenkins, Atlanta, GA, Lisa Monet Wayne, Denver, CO, Ronald Ray Brunson, McCord and Brunson, Birmingham, AL, Susan Graham James, Susan G. James & Associates, Montgomery, AL, for Leon Carmichael, Sr.

Daniel Gary Hamm, Daniel G. Hamm, Attorney at Law, Montgomery, AL, for Freddie Williams.

A. Clark Morris, Matthew S. Miner, Andrew O. Schiff, Christopher A. Snyder, John T. Harmon, Terry F. Moorer, Stephen P. Feaga, U.S. Attorney's Office, Montgomery, AL, for United States of America.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Defendants Leon Carmichael, Sr. and Freddie Williams have challenged the makeup of the jury venire and the method of selection of the trial jury that convicted them of conspiring to distribute marijuana and, in Carmichael's case, conspiring to commit money laundering. As relief, the defendants request that the court grant a new trial. The defendants base their challenge on the due process and equal protection clauses of the Fifth Amendment; the Sixth Amendment's guarantee of a jury drawn from a fair cross-section of the community; the Jury Selection and Service Act ("JSSA"), 28 U.S.C. §§ 1861-1871; and the Middle District of Alabama's local plan for the random selection of grand and petit jurors.

United States Magistrate Judge Delores R. Boyd has recommended that the requested relief not be granted. After consideration of her well-written recommendation and after an independent and de novo review of the record, the court concludes that the recommendation should be adopted, albeit with different reasoning on some points.

I. INTRODUCTION

A jury convicted the defendants of conspiring to distribute 7,000 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and convicted Carmichael of money laundering prohibited by 18 U.S.C. § 1956(h). Prior to the voirdire examination, the defendants challenged the composition and method of selection of the venire; they said that their concern was ignited by the observation that the number of African-Americans in the pool from which they were selecting their trial jury did not appear to be reasonably proportionate to the number of African-Americans in the overall court district. The court reserved consideration of the jury challenge until after the trial, referring the challenge to Magistrate Judge Boyd for consideration and recommendation. The 12-person jury that convicted the defendants had three African-Americans, though two of these were on the jury only because the court sustained the defendants' objection that they had been struck by the government because of their race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

After accepting extensive evidence and considering lengthy briefs, Judge Boyd entered a recommendation in which she found that the district's jury plan had been violated, but nonetheless urged the court to deny the relief sought on the grounds that the composition and method of selection of the jury venires did not substantially violate the JSSA, nor constitute violations of the Fifth and Sixth Amendments. She did, however, note "a compelling need for the Middle District of Alabama to examine, and undertake to remedy, administrative inaction and operational deficiencies which may undermine the integrity of, and public confidence in, the District's Jury Plan." Report and Recommendations of the Magistrate Judge (doc. no. 737) ("magistrate judge recommendation"), at 100 n. 147. Both the defendants and the government have filed objections to the magistrate judge's recommendation.

II. STANDARD OF REVIEW

The district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

III. FACTS

A. Jury-Selection Plan

The clerk of the court is responsible for implementing the jury plan in the Middle District of Alabama. She is assisted by the systems manager and the jury administrator. The systems manager maintains the district's computer facilities, including the programs that assist in jury selection. The jury administrator is responsible for evaluating completed preliminary-juror-qualification questionnaires, constructing a summons list for terms of court, issuing summonses for jury duty, and processing requests for temporary deferment of jury duty. The district's current written jury plan, adopted in 2001 in accordance with 28 U.S.C. § 1863(a), incorporates changes to the district's method of selecting criminal petit jurors intended to remedy substantial violations of the JSSA revealed by a successful challenge to the district's 1997 jury plan. United States v. Clay, 159 F.Supp.2d 1357 (M.D.Ala.2001) (Thompson, J.).

The district covers 23 counties and is divided into three divisions: the Northern Division, the Eastern Division, and the Southern Division. The 2001 plan at issue here provides, as did the 1997 plan before it, for the construction, every four years, of a master jury wheel by random selection of at least 5% of the registered voters of each of the counties in the district. Once this master jury wheel is constructed, the clerk of the court selects randomly from the master wheel a sufficient number of persons to maintain an adequate number of names in the qualified jury wheel, drawing from each of the district's divisions. Because jurors are identified by division, the qualified wheel can be understood as comprising three divisional qualified wheels.

Under both the 1997 and 2001 plans, the court clerk mails preliminary-juror-qualification questionnaires to each person whose name is drawn from the master wheel. When the questionnaires are returned, the plan requires the chief judge of the district, or his designee, to determine whether an individual is qualified, exempt, or excused from jury service. Under the plan, and in conformity with 28 U.S.C. § 1865(b), a person is presumed to be qualified unless she or he fits into one or more of five enumerated exceptions.¹ However, the jury plan exempts certain otherwise qualified individuals from jury service pursuant to 28 U.S.C. § 1863(b)(6).²

Criminal trials are held in Montgomery (the seat of the Northern Division of the district) unless otherwise ordered, no matter where the alleged offense occurred within the district. When jurors are needed for a criminal term of court, the plan (both in 1997 and in 2001) requires the clerk to create a "jury pool" by selecting names randomly from the qualified wheel and creating a summons list. Because each criminal jury is composed of persons selected from the district at large (that is, from all three divisions), the clerk is required to draw names from each of the three divisions in approximately the same proportion to the total number drawn as the number of names in the divisional wheel bears to the number of names in the master wheel. In other words, each division should be represented proportionately in each jury pool from the initial summons list. For the 2001 qualified wheel, this meant that the clerk was to draw 49% of jurors in each pool from the Northern Division, 20% from the Southern Division, and 31% from the Eastern Division.

Before each term of court, jury packets and summonses are mailed to the individuals on the summons list. At this stage, individuals summoned for jury service may request to be excused or deferred from service upon a showing of undue hardship or extreme inconvenience pursuant to 28 U.S.C. § 1866(c). Certain individuals are presumed to have established undue hardship or extreme inconvenience, and are presumptively granted an excuse or deferral based on age, work, study, or custodial responsibilities.³ Individuals who request and are granted deferrals are removed from the summons list and placed into a deferred jury pool, separate from the qualified wheel. The names that remain on the summons list are randomly ordered in a venire, or jury panel, list, which is provided to attorneys before jury selection.

B. The Clay Challenge and Reform

In United States v. Clay, 159 F.Supp.2d 1357 (M.D.Ala.2001) (Thompson, J.), the defendant there challenged the process of granting deferrals and the way deferred jurors were reintegrated into the jury-selection process once their deferral period expired. Up to and through the selection of Clay's petit, or trial, jury, the clerk's office almost always granted temporary deferrals of jury service to individuals who claimed that jury service would create undue hardship or inconvenience. The jury administrator removed their names from the summons list, and those individuals became available for service at the end of their deferral period.

The court found that a combination of three factors in the pre-Clay system resulted in a non-random selection process that substantially violated the JSSA, Clay, 159 F.Supp.2d at 1367: first, because the clerk granted nearly every request for a deferral, deferred jurors were essentially self-selecting; second, the, number of eligible deferred jurors to be used in any given venire was left to the discretion of the jury administrator; and, third, the jury administrator grouped deferred jurors together at the top of the summons lists, a preferential position that ensured their inclusion in the final venires. Because white jurors requested deferrals at twice the rate of black jurors, the deferred jurors were disproportionately white. The system, therefore, in addition to being non-random, provided an increased opportunity...