U.S. v. Cronn

• Decision Date: 28 September 1983
• Docket Number: No. 82-1614,82-1614
• Citation: 717 F.2d 164
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lorrin CRONN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 164

717 F.2d 164

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lorrin CRONN, Defendant-Appellant.

No. 82-1614.

United States Court of Appeals Fifth Circuit.

Sept. 28, 1983.

Arch C. McColl, III, David W. Coody, Dallas, Tex., for defendant-appellant.

Michael P. Heiskell, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GEE and POLITZ, Circuit Judges.

GEE, Circuit Judge:

Today's issue of significance is whether a criminal conviction in an otherwise fair trial ¹ must be reversed on a ground far removed from guilt or innocence of the accused. ^* Defendant Cronn, an Anglo male, asserts that his conviction of mail fraud and related offenses must be overturned because females and members of racial minorities may have been underrepresented in tenure as grand jury foremen at the time of his indictment. This circumstance, which, in the posture of the appeal, we must assume existed, is said to have denied him his Fifth Amendment right to equal protection of the laws. No contention is made that the grand jury itself, from which the court selected a foreman, was improperly constituted.

The district court, 559 F.Supp. 124, denied Cronn's motion for access to grand jury selection records, thus aborting his attempt to establish underrepresentation. Although the court concluded that despite his non-minority status Cronn possesses standing to raise the complaint, it determined as well that "the position of a federal grand jury foreman is not constitutionally significant." In so doing, it distinguished our decision in Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981) (en banc), and that of the Supreme Court in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), both concerned with foremen of state grand juries, on two grounds: that the federal foreman was selected from among the members of the already-constituted (and properly so) grand jury, rather than added to them as in Rose and Guice; and that his powers, unlike the greater ones of the state foremen, were merely ministerial. We affirm, but on a narrow and basic ground--one that allows us to leave decision of these broad and knotty issues for another day. ²

From the presentation of the initial motion to the submission of the briefs and argument of the case before us, plaintiff has specifically denominated his claim as one arising under "the equal protection component of the Fifth Amendment to the United States Constitution." (App.Br. p. 7). In none of his briefs to this court is any other due process contention made. Nor was any made in his district court filings or discussed in the opinion of that court. Indeed, the only time the words "due process" appear in any brief filed with us by Cronn is in an observation that, as in the case of a state defendant relying on the explicit Equal Protection Clause of the Fourteenth Amendment, "[t]his equal protection attack is also available to federal defendants through the Due Process Clause of the Fifth Amendment." (App.Br. p. 7).

It is therefore plain that Cronn has elected, for whatever reasons, to advance no broader or additional due process challenge and to rely solely on the equal protection component. Based on the analysis below we determine that, for purposes of standing, challenges based on equal protection and due process analyses are distinct. Because Cronn has raised only an equal protection challenge, it is in this context alone that we review his standing. We cannot and will not consider a contention presented neither to the trial court nor to us. ³

The district court, however, failed to distinguish between due process and equal protection challenges to grand jury composition, and held that this plaintiff had standing. In so doing, the court relied upon a recent case in the Eleventh Circuit. United States v. Perez-Hernandez, 672 F.2d 1380. We set out the reasoning of Perez on this issue in full:

Before addressing the merits of appellant's case, we must first discuss a preliminary question of standing. Appellant is a male of hispanic descent who claims a denial of equal protection because blacks and women have been excluded from serving as grand jury foremen. Conflicting language in several recent Supreme Court cases has clouded his right to assert this claim. In Peters v. Kiff, 407 U.S. at 498, 92 S.Ct. [2163] at 2166 , the opinion of the Court discussed this question in an equal protection context and concluded that "when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim." Three years later, the Court reaffirmed this holding, although in the context of a Sixth Amendment claim. Taylor v. Louisiana, 419 U.S. at 526, 95 S.Ct. at 695 . In 1977, however, the Court used significantly different language to address the same question: "Thus, in order to show that an equal protection violation has occurred in the context of grand jury selections, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) (emphasis added). In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the opinion of the Court at first seems to support the holding in Peters v. Kiff: "[T]he Court has recognized that a criminal defendant's right to equal protection of the laws has been denied when he is indicted by a grand jury from which members of a racial group purposefully have been excluded." Rose v. Mitchell, 443 U.S. at 556, 99 S.Ct. at 3000. Later in the opinion, however, the troublesome language from Castaneda v. Partida is quoted with approval. Id. [430 U.S.] at 565, 99 S.Ct. at 3005. Despite this apparent conflict, we conclude that appellant is not precluded from bringing this claim even though he is not black or female. The holding in Peters v. Kiff is clear and unambiguous and has never been expressly overruled. On the other hand, the disputed language in Castaneda v. Partida possibly refers only to the particular defendants involved in that case. Without more direction from the Supreme Court, we cannot hold otherwise.

672 F.2d at 1385-86 (footnotes omitted). Despite our customary deference to our sister circuit, we are unable to concur in this well-stated reasoning.

At the outset we conclude that Peters v. Kiff, insofar as it discusses the right of a white defendant not to have black citizens systematically excluded from his grand or petit jury, does not rest on constitutional equal protection grounds. ⁴ Since it does not, but rather on due process and in some instances Sixth Amendment ones, we do not see that "apparent conflict" which concerned the Perez court between it and the Rose and Castaneda holdings. We suggest with deference that Peters' due process analysis did not bear on Perez's equal protection claim. Nor do we see how Peters could figure in today's decision.

The plurality opinion in Peters ⁵ reviewed a claim brought by a white defendant that discrimination against blacks in the selection of his grand jury violated his constitutional rights under the due process and equal protection clauses. The State in that case attacked plaintiff's standing, arguing that absent a specific showing of harm only a member of the discriminated-against minority could rest on the presumption that a grand jury so constituted would be prejudiced against him. The Supreme Court responded that this "argument takes too narrow a view of the kinds of harm that flow from discrimination in jury selection." 407 U.S. at 498, 92 S.Ct. at 2166. The Court noted that the exclusion of minorities from jury service "offends a number of related constitutional values." Id.

The Court first reviewed cases in which black defendants had presented equal protection challenges to the discriminatory exclusion of other blacks from their grand juries. In concluding its equal protection discussion, the Peters Court reasoned that "[b]ecause each of these three cases was amenable to decision on the narrow basis of an analysis of the Negro defendant's right to equal protection, the Court brought all three under that single analytical umbrella." Id. at 499, 92 S.Ct. at 2167 (emphasis added). But the defendant in Peters was white, and so the Court proceeded to examine the standing of a white defendant under alternative constitutional analyses, raising other recognized constitutional values. The Court explained that because of its disposition of the case, it had not been necessary to consider defendant's claim that his own rights under the Equal Protection Clause had been violated. Id. at 497 n. 5, 92 S.Ct. at 2165 n. 5. ⁶

The Court considered other specific constitutional values and their effect on the class of defendants having standing to object. It concluded that the exclusion of a discernible class from jury service would violate the right preserved by the Sixth Amendment to "a representative cross-section of the community." Id. at 500, 92 S.Ct. at 2167 (citing in Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446 (1970)). But the Sixth Amendment was not applicable in Peters; the Court instead based its decision entirely upon the due process analysis.

Starting with the premise that "[a] fair trial in a fair tribunal is a basic requirement of due process," the Court reasoned that an unconstitutionally composed grand jury violated the due process rights of all defendants. The Court relied upon an expanded view of standing in this context, because due process violations had previously been found absent a showing of actual bias. The likelihood or appearance of bias in the composition of the tribunal was sufficient to support a due process claim: "[i]llegal and...