U.S. v. Grisham

• Decision Date: 12 September 1995
• Docket Number: No. 94-6459,94-6459
• Citation: 63 F.3d 1074
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Wayne GRISHAM, aka Terry Wayne Girsham, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1074

63 F.3d 1074

UNITED STATES of America, Plaintiff-Appellee, v. Terry Wayne GRISHAM, aka Terry Wayne Girsham, Defendant-Appellant.

No. 94-6459.

United States Court of Appeals Eleventh Circuit.

Sept. 12, 1995.

Donald L. Colee Jr., Birmingham, AL, for appellant.

Claude Harris, Caryl P. Privett, John E. Ott, U.S. Attorney's Office, Birmingham, AL, for appellee.

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

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON, Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

Terry Wayne Grisham appeals his conviction for bank robbery. The issue presented in this appeal is whether the Northern District of Alabama's ("the Northern District") practice of selecting juries from the district at large violates the Fifth and Sixth Amendments of the Constitution merely because of the disparity between the percentage of African-Americans on the qualified jury wheels created from voter registration lists of the district at large and the percentage of African-Americans in the population of the Southern Division of the Northern District ("the Southern Division"). ¹ Because we conclude that it does not, we affirm Grisham's conviction.

I. STATEMENT OF THE CASE

In July 1993, Terry Wayne Grisham was indicted on one count of bank robbery, in violation of 18 U.S.C.A. Sec. 2113(a) (West 1984 & Supp.1995). The case was initially set for trial on October 5, 1993. Following voir dire, Grisham moved to strike the jury panel "because of the inadequate representation of persons of the minority race." The district court continued the trial to permit defense counsel to file a formal challenge to the jury selection procedures of the Northern District and consolidated the hearing on Grisham's motion with a similar challenge raised by defendants in an unrelated criminal action. ²

Grisham subsequently filed written motions challenging the methods and procedures for selecting jurors for grand and petit juries in the Northern District. Grisham contended that the selection procedures disproportionately excluded African-Americans from jury service, in violation of (1) the Jury Selection and Service Act of 1968 ("the Act"), 28 U.S.C.A. Sec. 1861, et seq. (West 1994), which provides that "all litigants shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes," (2) his Sixth Amendment right to a jury pool composed of a fair cross-section of the community, and (3) the Fifth Amendment rights of jurors to equal protection under the law. After conducting an evidentiary hearing, the district court ruled that Grisham's statutory challenge was untimely, ³ and rejected his constitutional claims on the merits. At the conclusion of a jury trial, Grisham was convicted on one count of bank robbery. The district court sentenced him to 225 months' imprisonment.

II. ANALYSIS

Challenges to the jury selection process may be based on the fair cross-section requirement of the Sixth Amendment, Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the equal protection component of the Fifth Amendment, Cunningham v. Zant, 928 F.2d 1006 (11th Cir.1991), or a substantial failure to comply with the provisions of the Act. United States v. Maskeny, 609 F.2d 183, 191 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980). Because Grisham concedes that the district court correctly concluded that his statutory claim was untimely, only the constitutional issues are before us on appeal. We review de novo constitutional challenges to jury selection processes. See, e.g., United States v. Rodriguez, 776 F.2d 1509, 1511 (11th Cir.1985) (conducting de novo review); United States v. Tuttle, 729 F.2d 1325, 1327 (11th Cir.1984) (same), cert. denied, 469 U.S. 1192, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985).

A. The Northern District's Jury Selection Process

At issue in this action are two separate jury selection plans adopted by the Northern District pursuant to provisions of the Act. The grand jury that indicted Grisham was selected pursuant to a plan adopted by the district court in March 1989. The petit jury that tried Grisham was selected pursuant to a plan which went into effect in October 1993. The methods and procedures of these two plans ("the plans") are substantially identical.

The Northern District is divided into seven statutory divisions. 28 U.S.C.A. Sec. 81(a) (West 1994). Pursuant to the plans, which were adopted by all of the judges of the United States District Court for the Northern District and approved by a panel of the judicial council of the United States Court of Appeals for the Eleventh Circuit, the district court selects juries on a district-wide basis, as opposed to a division-wide basis.

As required by the plans, the clerk of the district court has established a master jury wheel ("MJW"), drawn by random selection from lists of registered voters from each county in the district. Periodically, as provided in the plans and in 28 U.S.C.A. Sec. 1864(a), the clerk randomly selects names from the MJW and mails a juror questionnaire to each person selected. Returned questionnaires are examined to determine which persons are qualified for jury service and not exempt or due to be excused. Those persons are placed on the qualified jury wheel ("QJW"). The criteria for determining juror qualifications, exemptions, and excuses are set forth in the plans. Only those questionnaires which are returned are utilized; the clerk does not follow up or contact persons who fail to return questionnaires. Nor does the clerk follow up on questionnaires that are returned by the post office as undeliverable.

At the time of Grisham's grand jury proceeding, the clerk sent 24,000 questionnaires to persons randomly selected from the MJW. Of those 24,000 questionnaires, 5,479 were returned as undeliverable, 3,135 elicited no responses, and more than 5,000 persons were properly excused from service. Eventually, the QJW was composed of 9,188 persons, of which 15.9% were African-American.

At the time of Grisham's trial, the clerk placed 37,000 names on the MJW. Questionnaires were mailed to 8,076 persons randomly selected from the MJW. Of those 8,076 questionnaires, 1,123 were returned as undeliverable, 1,175 were not returned, and approximately 1,400 persons were excused. The QJW comprised 4,359 persons, of which 13.59% were African-American.

The percentage of the population of the Northern District eligible for jury service that is African-American is 18.31%. In contrast, 28.98% of the population of the Southern Division eligible for jury service is African-American.

B. The Sixth Amendment

The Sixth Amendment guarantees a criminal defendant the right to be indicted and tried by juries drawn from a fair cross-section of the community. Duren, 439 U.S. at 359, 99 S.Ct. at 666; Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S.Ct. 692, 695-98, 42 L.Ed.2d 690 (1975); Cunningham, 928 F.2d at 1013. As the Supreme Court explained in Holland v. Illinois, the fair cross-section requirement is "not explicit in the text" of the Sixth Amendment, "but is derived from the traditional understanding of how an 'impartial jury' is assembled. That traditional understanding includes a representative venire, so that the jury will be ... 'drawn from a fair cross section of the community.' " 493 U.S. 474, 480, 110 S.Ct. 803, 807, 107 L.Ed.2d 905 (1990) (quoting Taylor, 419 U.S. at 527, 95 S.Ct. at 696) (emphasis in original). The representativeness requirement serves the goal of impartiality because it prevents the government from drawing up "jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants." Id.

To establish a prima facie case that a jury selection process does not produce a fair cross-section of the community, a defendant must show (1) that the group alleged to be excluded is a distinctive group in the community, (2) that representation of the group in venires is not fair and reasonable in relation to the number of such persons in the community, and (3) that the underrepresentation is due to systemic exclusion of the group in the jury-selection process. Duren, 439 U.S. at 364, 99 S.Ct. at 668. The government concedes that Grisham has satisfied the first element of his prima facie case, but maintains that he fails both the second and third elements. Because we conclude that Grisham fails the second element, we limit our discussion to that issue. See United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984) (failure on any element of the prima facie case ends a challenge under the Sixth Amendment).

To examine the second element, we must compare the difference between the percentage of the distinctive group among the population eligible for jury service and the percentage of the distinctive group on the QJW. Pepe, 747 F.2d at 649; United States v. Esle, 743 F.2d 1465, 1479-80 n. 3 (11th Cir.1984) (Tjoflat, J., concurring). If the absolute disparity between these two percentages is 10 percent or less, the second element is not satisfied. Rodriguez, 776 F.2d at 1511; Tuttle, 729 F.2d at 1327. ⁴

Here, if the relevant community to be compared with the QJW is the Northern District, then the absolute disparity in the context of both Grisham's grand and petit juries is substantially less than 10 percent. The percentage of African-Americans among the population of the Northern District eligible for jury service was 18.31%, whereas the percentage of African-Americans on the grand jury QJW was 15.9% and on the petit jury QJW was 13.59%.

Grisham contends, however, that the relevant community to be compared with the QJWs is not the Northern District, but the Southern Division. If that is correct, he may satisfy the second element because the disparity between the 28.98%...