U.S. v. Foxworth, No. 78-1449

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before ALDRICH and CAMPBELL, Circuit Judges, and GIGNOUX; GIGNOUX
• Citation: 599 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Scott S. FOXWORTH, Defendant, Appellant.
• Docket Number: No. 78-1449
• Decision Date: 09 May 1979

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599 F.2d 1 UNITED STATES of America, Appellee,
v.
Scott S. FOXWORTH, Defendant, Appellant. No. 78-1449. United States Court of Appeals,
First Circuit. Argued March 7, 1979.
Decided May 9, 1979.

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Willie J. Davis, Boston, Mass., by appointment of the Court, for defendant, appellant.

Elliot D. Lobel, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH and CAMPBELL, Circuit Judges, and GIGNOUX, District Judge. ^*

GIGNOUX, District Judge.

On April 19, 1978 a federal grand jury at Boston indicted Scott S. Foxworth for murder, a violation of 18 U.S.C. § 1111. On April 20, his present attorney was appointed to represent him. On April 28, defendant filed a motion to dismiss the indictment on the ground that the grand jury which returned the indictment was not selected in accordance with the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 Et seq. (hereafter "the Act"). The motion alleged that the system employed in the selection of the grand jury did not permit selection at random from a fair cross section of the community and did not permit proportional representation of political subdivisions. In support of his motion, defendant attached an unsworn report, authored by Joseph J. Barnard, a doctoral candidate at the Massachusetts Institute of Technology (hereafter "the Barnard Report"), which disclosed that certain cities and towns in the Eastern Division of the District of Massachusetts were not represented in the Master Jury Wheel for the year 1977, ¹ from which the members of the grand jury that indicted Foxworth were chosen. ² In addition, the motion to dismiss alleged that Section 1865(b)(5) of the Act, which disqualifies from jury service those convicted of or charged with certain crimes, is unconstitutional because it arbitrarily excludes an identifiable class of persons from serving on juries in violation of the Sixth Amendment. No evidence was ever taken, nor requested to be taken, on the motion to dismiss. The motion was denied by the district court on June 15.

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Following a jury trial, defendant was convicted of murder in the second degree. His present appeal assigns error to the district court's denial of his motion to dismiss the indictment. As we conclude (1) that defendant did not properly preserve his claim that the jury selection process was not in compliance with the Act; (2) that, in any event, defendant has made no showing of a substantial failure to comply with the Act; and (3) that there is no merit in defendant's constitutional challenge to Section 1865(b)(5) of the Act, we affirm the conviction.

I

Defendant has failed to meet the strict prerequisites that Congress established for challenging juries alleged to have been selected in violation of the Act. Section 1867(a) of the Act provides that a defendant, by motion to dismiss the indictment, may challenge jury selection procedures for substantial failure to comply with the Act. Section 1867(d) requires that the motion contain "a sworn statement of facts, which, if true, would constitute a substantial failure to comply with the provisions of this title." Section 1867(e) states that "the procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime . . . may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title." Defendant's motion to dismiss did not contain the required sworn statement of facts. The report filed in the lower court with the motion to dismiss was not sworn, nor did defendant offer any evidence in support of the motion, as allowed by Section 1867(d). His failure to comply with the express statutory requirement of Section 1867(d) precludes his statutory challenge to the jury selection process. United States v. Kennedy, 548 F.2d 608, 612-14 (5th Cir.), Cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); United States v. Jones, 480 F.2d 1135, 1139 (2d Cir. 1973); United States v. James, 453 F.2d 27, 29 (9th Cir. 1971); H.R.Rep.No.1076, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 1792, 1806; See Government of the Virgin Islands v. Navarro, 513 F.2d 11, 18 (3rd Cir.), Cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 698 (1975). ³

II

Despite defendant's failure properly to preserve his statutory challenge to the jury selection procedure, we have considered his claims of...