U.S. v. Conant
| Decision Date | 21 September 2000 |
| Docket Number | No. 99-CR-156.,No. 99-CR-153.,99-CR-153.,99-CR-156. |
| Citation | 116 F.Supp.2d 1015 |
| Parties | UNITED STATES of America, Plaintiff, v. Scott CONANT and Beth Conant, Defendants. United States of America, Plaintiff, v. Steven R. Imig, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Melvin K. Washington, Assistant U.S. Attorney, Milwaukee, WI, Daniel H. Sanders, Assistant U.S. Attorney, for United States.
Dennis P. Coffey, Cook & Frar, for Scott Conant.
Michael J. Fitzgerald, Glynn, Fitzgerald and Albee, for Beth Conant.
Robert J. Dvorak, for Steven Imig.
This matter comes before the court on defendants' joint motions to strike the petit jury pool and to stay further proceedings. Because the court finds the jury pool to be free from statutory or constitutional infirmities, the court will deny defendants' motions.
By its Plan for the Random Selection of Grand and Petit Jurors (as amended in 1985) ["the Plan"], the court, the Seventh Circuit Judicial Council approving, split the federal judicial district for the Eastern District of Wisconsin into two divisions: the Milwaukee Division, consisting of the southernmost seven counties in the district,1 and the Green Bay Division, encompassing the remaining twenty-one counties in the district.2 While efforts have long existed to appoint a district court judge for the Green Bay Division, at present all district court judges in the Eastern District of Wisconsin sit in the federal court-house in Milwaukee. Consistent with the Plan, jurors for trials to be held in Milwaukee are drawn from the Milwaukee Division. As a consequence, Green Bay Division residents have had little opportunity to serve as jurors. In fact, Green Bay Division residents have formed only one federal petit jury since 1981.
On August 3, 1999, a federal grand jury sitting in the Eastern District of Wisconsin returned a nine-count indictment against Scott Conant and Elizabeth Conant. Counts one through seven charge Scott Conant with obtaining controlled substances by misrepresentation, fraud, deception and subterfuge, contrary to 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2; count eight charges Scott and Elizabeth Conant with obtaining controlled substances by misrepresentation, fraud, deception and subterfuge, contrary to 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2; and count nine charges Elizabeth Conant with obtaining controlled substances by misrepresentation, fraud, deception and subterfuge, contrary to 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2. Scott and Elizabeth Conant were arraigned on August 13, 1999, before the Honorable William E. Callahan, Jr., and pled not guilty. United States Magistrate Judge Aaron E. Goodstein was assigned for all pretrial processing.
On September 19, 1999, the Conants moved to strike the petit jury pool and stay further proceedings. They contended that, because the pool from which petit juries are chosen in the Eastern District of Wisconsin does not as a practical matter include any residents of the Green Bay Division, the system violates the Fifth and Sixth Amendments to the United States Constitution, the Jury Selection and Service Act of 1968, and the Plan of the United States District Court for the Eastern District of Wisconsin for the Random Selection of Grand and Petit Jurors.
On October 29, 1999, in the cases of United States v. Kostan, Case No. 99-CR-136, and United States v. Imig, Case No. 99-CR-156, the Honorable Patricia J. Gorence granted defendants' motions to consolidate their respective motions to strike the petit jury pool with the Conants' motion to strike. The motions in those cases are identical with the motions filed by the Conants. The Conant and Imig cases have been assigned to this court for trial, while the Kostan case has been assigned to Judge Charles N. Clevert. In view of the pending motions, all trial dates in these cases have been held in abeyance pending a decision on the defendants' motions to strike the jury pool.
On November 18, 1999, Magistrate Judge Goodstein held an evidentiary hearing regarding the defendants' motions. The court's findings of fact are contained in Magistrate Judge Goodstein's June 21, 2000 Recommendation to Chief Judge J.P. Stadtmueller and to the Honorable Charles N. Clevert. Several of the court's findings are important, and will be repeated here.
According to the 1990 census, the Eastern District of Wisconsin is composed of approximately 2.2 million voting-age residents; 1.3 million (61%) of whom live in the Milwaukee Division and 838,000 (39%) of whom reside in the Green Bay Division. Elizabeth and Scott Conant are Green Bay Division residents, as is Steven Imig.
Defendants' expert, Dr. Gary Sandefur of the University of Wisconsin-Madison, testified that, in his opinion, significant differences exist between the Milwaukee and Green Bay Divisions of the Eastern District of Wisconsin. Most importantly, the 1990 census indicates that 43.2% of Green Bay Division residents live in rural areas, while only 13.8% of Milwaukee Division residents reside in such areas.3 By the same token, 5.5% of Green Bay Division residents are engaged in farming, while the corresponding number for the Milwaukee Division is 1%. However, Dr. Sandefur also testified that there is no evidence to suggest rural residents of the Green Bay Division do not share the same characteristics as rural residents of the Milwaukee Division. Furthermore, when specifically asked to do so, he was unable to identify characteristics that might distinguish Green Bay Division residents from their Milwaukee counterparts or define the group as a community of interest.
After reviewing the facts and the law, on June 21, 2000, Magistrate Judge Goodstein recommended that the defendants' motions to strike the petit jury pool and to stay the case be denied. On July 5, 2000, the defendants timely objected to Magistrate Judge Goodstein's recommendation. The issues have been fully briefed and are ready for resolution by the court.
Defendants make two primary arguments in this case: that the jury selection procedure employed by the United States District Court for the Eastern District of Wisconsin violates the equal protection component of the Fifth Amendment, and that the plan denies them a jury drawn from a fair cross section of the community, as guaranteed by both the Sixth Amendment and the Jury Service and Selection Act of 1968. Each argument will be addressed in turn.
Defendants in this case contend that eligibility for jury service is a fundamental right of American citizens, and that the court denies Green Bay Division residents equal protection of the laws by including them in few, if any, jury venires.
By 1880, the United States Supreme Court established that jury service may implicate fundamental equal protection concerns. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Court created guidelines for scrutinizing government enactments allegedly violative of the equal protection guarantees of the United States Constitution. The principles of equal protection analysis enunciated in Rodriguez require the reviewing court initially to determine whether the accused system discriminates against a suspect class (one that has been a traditional or perennial victim of discrimination, or politically powerless) or "impinges upon a fundamental right explicitly or implicitly protected by the Constitution." Rodriguez, 411 U.S. at 17, 93 S.Ct. 1278. If the classification in question discriminates against a suspect class or impinges upon a fundamental right, it is constitutionally sufficient only if a "compelling state interest" justifies the existence of the classification. If, on the other hand, the scheme is not directed against a suspect class and does not impinge upon a fundamental constitutional right, it must be upheld if "it rationally furthers some legitimate, articulated state purpose." Id.
Here, the defendants do not contend— nor could they—that the jury selection procedure followed by the court discriminates against a suspect class. The "class" of people involved are the multitudinous and heterogenous residents of twenty-one separate counties, after all. The defendants do claim, however, that a fundamental constitutional right is at stake—the right to serve on a jury.
No court that has considered the question of whether being eligible for jury service is a constitutional right has answered in the affirmative. See Eckstein v. Kirby, 452 F.Supp. 1235, 1241 (E.D.Ar.1978) (); Adams v. Superior Court of San Diego Cty., 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, 380 (1974) (). The defendants point the court to United States v. Cannady, 54 F.3d 544, 548 (9th Cir.1995), however, which suggests the existence of a "constitutional right ... to be included in the jury selection plan of a district or division." While the court passes no judgment on the validity of the Ninth Circuit's assertion,4 it is worth noting that the passage does not create the right to serve as a juror; it merely articulates a right to be included in a jury plan. As such, it does little to further defendants' argument since Green Bay Division residents are included in a jury plan. Indeed, they have been included in previous juries (although few), and undoubtedly will serve regularly as jurors as soon as Congress approves the creation of a federal district judgeship for the Green Bay Division of the Eastern District of Wisconsin. Cannady does not contradict Eckstein or Adams, supra.
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