U.S. v. Geelan
| Decision Date | 02 June 1975 |
| Docket Number | 73--1869,74--1074 and 74--1073,Nos. 74--1048,s. 74--1048 |
| Citation | 509 F.2d 737 |
| Parties | UNITED STATES of America, Appellee, v. Lawrence GEELAN, Appellant. UNITED STATES of America, Appellee, v. Robert Silas MOORE, Appellant. UNITED STATES of America, Appellee, v. Clarence RESSLER, Jr., Appellant. UNITED STATES of America, Appellee, v. David B. SMITH, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Patrick C. McCormick, Sioux City, Iowa, for appellants, Ressler and geelan.
Daniel C. Galvin, Sioux City, Iowa, for appellant, Moore.
Mayer Kanter, Sioux City, Iowa, for appellant, Smith.
Gary Wenell, Asst. U.S. Atty., Sioux City, Iowa, for appellee.
Before GIBSON, Chief Judge, and BRIGHT and WEBSTER, Circuit Judges.
These criminal appeals have been consolidated because they present one common question: whether the delay of the District Clerk 1 in implementing the 1972 amendments to the Jury Selection and Service Act of 1968 caused juries to be empaneled so contrary to law as to mandate reversal of convictions by such juries. Other non-common assignments of error will be considered separately.
In each of the consolidated cases a motion had been filed in which the defendants sought a stay of proceedings on the ground that the master jury wheel from which jurors would be chosen for their respective trials had not been refilled in accordance with the requirements of 28 U.S.C. § 1863 and Rule 6 of the Local Rules of the Northern District of Iowa. The motions were denied, juries were empaneled and the defendants were thereafter tried and convicted. 2
In 1972, Congress amended the Jury Selection and Service Act of 1968 3 by enacting Public Law 92--269, the purpose of which was 'to change the minimum age qualification for serving as a juror in Federal courts from 21 years of age to 18 years of age.' 4 Public Law 92--269 provides in part that:
Each judicial district * * * for which a separate plan for random selection of jurors has been adopted pursuant to section 1863 of title 28, United States Code * * * shall not later than September 1, 1973, refill its master jury wheel with names obtained from the voter registration lists for, or the lists of actual voters in, the 1972 general election.
The qualified jury wheel in each judicial district * * * for which a separate plan for random selection of jurors has been adopted, shall be refilled from the master jury wheel not later than October 1, 1973.
The Northern District of Iowa had in effect a plan for the random selection of jurors pursuant to 28 U.S.C. § 1863, but at the time of these trials in mid- October, 1973, the master jury wheels had not been refilled as required by the 1972 amendment to the Act. The jury panels used in the trials of these appellants were drawn from a qualified jury wheel containing names drawn from the master jury wheel.
Appellants contend that since the mandates of Public Law 92--269 for jury selection had not been complied with at the time of their trials, the District Judge committed prejudicial error by denying their motions to stay the proceedings. 5
Although the government concedes that Section 3(c) of Public Law 92--269 'was not literally complied with' it asserts that: (1) each appellant failed to meet the requirement of timeliness set out in 18 U.S.C. § 1867 and thereby waived his right to complain of the jury selection process used in his case, (2) the 'savings' clause of Public Law 92--269 permitted the old jury wheels to be used until they had been properly refilled, and (3) appellants have failed to show that any prejudice resulted from the process used to select jurors for their trials.
A.
28 U.S.C. § 1867 provides the exclusive method by which a defendant in a criminal case may challenge compliance with the jury selection procedures of the 1968 Act. 28 U.S.C. § 1867(e). The pertinent provisions are as follows:
(a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
(d) Upon motion filed under subsection (a) * * * of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. * * * If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.
In United States v. Williams, 421 F.2d 529 (8th Cir. 1970), this court specifically recognized the importance of a prompt challenge to the process of selecting jurors. We addressed a situation where appellant's counsel had waited until the day of the trial to complain of the composition of the jury when he possessed the necessary facts to make his complaint eighteen days earlier, and said:
We have held in several decisions that the right to challenge the jury panel may be waived and is waived if not seasonably presented. * * * Appellant's tardiness in asserting his challenge amounts to a waiver of that right in the instant case.
Defendants were granted ten days in which to file pre-trial motions following their arraignment on September 17, 1973. There is no showing in the record that defendants were misled or that needed information was withheld from them. It required only a simple inquiry to ascertain that the master jury wheel had not been refilled by September 1 with names taken from the 1972 voter list, which would have included the names of 18 year-olds for the first time. A similar inquiry would have produced the fact that the names in the qualified wheel had not been refilled by October 1 with names in turn taken from a master jury wheel refilled in accordance with the 1972 amendment. The motions to stay proceedings were not filed until October 23, the date upon which the cases were set for trial. Since the defendants did not file their motions within seven days after they had discovered the noncompliance, or could have discovered it by the exercise of diligence, they are precluded under the statute from asserting that the trial court erroneously denied their motions because of the failure of the District Clerk to meet the statutory deadlines. 28 U.S.C. § 1867(a).
Our inquiry does not stop here, however, because appellants' challenge to the jury selection procedure has constitutional overtones. They suggest that the absence of names of 18 year-olds in the jury wheels deprived them of a jury representative of a cross section of the community in violation of their Fifth and Sixth Amendment rights.
Since the master jury wheel contained names from the list of people registered to vote in the 1968 election, it may fairly be said that in 1973 the youngest juror who could have been called for these trials would have been at least twenty-six years of age. To the extent that the delay of the clerk operated to exclude this group of younger voters from jury service, we must examine the effect of such exclusion upon these cases.
In United States v. Gordon, 455 F.2d 398, 401 (8th Cir.), cert. denied, 406 U.S. 970, 92 S.Ct. 2428, 32 L.Ed.2d 670 (1972), we said:
The Constitution does not require that every class, subclass or identifiable group must be represented on every jury list, but only that no systematical, intentional or other unlawful exclusion of persons or groups exist.
Put another way, '(t)he crux of the inquiry is whether, in the source used in the selection of juries, there has been systematic or intentional exclusion of any cognizable group or class of qualified citizens.' United States v. Guzman, 337 F.Supp. 140, 143 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).
In October, 1973, the District was in the process of complying with the amendment to the statute. The cases herein under review were the last cases submitted to juries drawn from the 1968 list. The Supreme Court, when dealing with a different sort of challenge to a jury selection process, recently recognized that 'some play in the joints of the jury selection process is necessary in order to accommodate the practical problems of judicial administration' in complying with 28 U.S.C. § 1863. Hamling v. United States, 418 U.S. 87, 138, 94 S.Ct. 2887, 2917, 41 L.Ed.2d 590 (1974). Although the need for 'some play in the joints' is no excuse for a failure to comply with a Congressional mandate, the District was in the process of complying, and any claim of 'systematic exclusion' of newly enfranchised 18--20 year-olds from the jury rolls in the Northern District of Iowa is not supported by the record. 6
Moreover, we have held that young adults 18--20 years of age do not constitute a cognizable group within the community whose exclusion from the jury rolls amounts to an error of constitutional dimensions. United States v. Olson, 473 F.2d 686, 688 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973). Other courts have held that 18--20 year-olds do not have a constitutional right to serve on juries. 7
In summary, we find that the challenge to the jury panel based upon statutory noncompliance was not timely and was therefore waived. We...
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