U.S. v. Hawkins, 77-1047
| Decision Date | 30 January 1978 |
| Docket Number | No. 77-1047,77-1047 |
| Citation | 566 F.2d 1006 |
| Parties | 2 Fed. R. Evid. Serv. 948 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Daniel HAWKINS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph Daniel Hawkins, pro se.
Laughlin McDonald, ACLU Foundation, Neil Bradley, Atty., Atlanta, Ga., for defendant-appellant.
Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before COLEMAN, * SIMPSON and TJOFLAT, Circuit Judges.
In this difficult and most unusual case, appellant Joseph Daniel Hawkins alleges that his constitutional and statutory rights were violated when the Clerk of the United States District Court for the Southern District of Mississippi conspired with a federal criminal defendant, Curtis Leo Hall, to fix the selection of the jury venire in Hall's case. The separate and unrelated criminal trials of Hall and Hawkins were scheduled for June 16 and 30, respectively, 1975, in the Jackson Division of the Southern District of Mississippi. 1 Facts indicating a likelihood that tampering with the Hall jury venire had been attempted were discovered after the venires for each trial had been selected, but prior to the trials. To avoid the possibility of prejudice, Judge Nixon, who was to preside over Hall's trial, and Judge Cox, who was to preside over Hawkins' trial, exchanged venires. As a result, Hawkins was tried by a jury selected from the venire originally drawn for the Hall trial. Hawkins did not learn of the attempted jury tampering until 17 months after his conviction, which, in the interim, had been affirmed without opinion by a panel of this Court. 529 F.2d 521 (5th Cir. 1976), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 127. Upon learning of the attempt at jury tampering, Hawkins filed a motion for a new trial which Judge Cox denied after a hearing extending over several days in December 1976.
The problem in this case is not whether the clerk of the district court corruptly endeavored to fix a jury. He did. Rather, the specific and only issue before us is whether this corrupt endeavor in any way violated the constitutional and statutory rights of Joseph Daniel Hawkins. We hold that it did not, and affirm.
Our holding cannot be understood without a detailed explication of the jury selection process in the Southern District of Mississippi and of the conspiracy to interfere with that process in the Hall case.
Pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C., §§ 1861 et seq. (1968), the Southern District of Mississippi adopted a plan for the random selection of grand and petit jurors. 2 The selection procedure outlined in the plan as of the time of the venire selection involved in this case included three steps:
1. Master Jury Wheel: Random Selection from Poll Books. All qualified grand and petit jurors in the Southern District of Mississippi were selected from the official records of voter registration maintained in the 45 counties within the district. Each division within the district was required to make a random selection of names from the poll books of each county within that division. In the Jackson Division, the only division relevant to this case, the process began with the second name on each county's list, with every fifteenth name thereafter selected. The names chosen were directed to be placed in a master jury wheel. This was done by assigning each name to a numbered card. The cards were separately filed and the numbers transferred to disks. Only the disks were placed in a wheel. The master jury wheel for the Jackson Division, containing a minimum of 15,000 names, was emptied and refilled between November 7, 1972, and May 31, 1973, to be refilled at four year intervals.
2. Qualified Jury Wheel. After filling the master jury wheel, the Jury Commission sent each prospective juror a qualification form to fill out and return so that it could determine which among those selected was not qualified for or was exempt from jury service. This determination was made by August 30, 1973, and the names of all persons drawn from the master jury wheel and not disqualified, exempt, or excused were placed in a qualified jury wheel for the division, to be emptied and refilled every four years thereafter. The qualified jury wheel itself, like the master wheel, contained only numbered disks corresponding to numbered name cards.
3. Petit Jury Venires. Upon the order of a district judge in the Southern District, a specified number of disks would be drawn from the qualified jury wheel for the division and the persons thus selected would be summoned to appear for service as petit jurors. This drawing was required to be conducted in a district courtroom, in public, and in the presence of a district judge and the United States Marshal.
After Leo Hall was indicted on federal firearms charges in January 1975, he sought assistance from Robert Thomas, the Clerk of the District Court for the Southern District of Mississippi. Thomas, who had been acquainted with Hall for over 20 years, indicated at that time that he would try to help Hall. Hall. 19; Thomas. 17-18; G.J. 126 (testimony of Curtis Leo Hall).
On May 12, 1975, District Judge Walter Nixon ordered the Jury Commission for the Southern District of Mississippi, headed by Thomas, to draw from the qualified jury wheel for the Jackson Division 75 petit jurors to appear on June 16, 1975. R., Ex. P-1. These 75 persons were to comprise the venire for the trial of Leo Hall. The drawing took place before Judge Cox on May 16, 1974. 4 Fourteen days later, on May 30, summonses were sent by certified mail to the 75 persons selected. R. Ex. P-1.
On May 21, 1975, Thomas called Willie Darrell Kendall, one of Hall's attorneys, and asked him to come to Thomas' office in the United States Courthouse. There Thomas handed Kendall a package which contained a 50 to 60 page list of all qualified prospective jurors for the Jackson Division. 5 Thomas asked Kendall to deliver the master list to Hall. At no point, so far as the evidence reveals, did Thomas divulge the actual venire that had been drawn for Hall's trial. 6
After returning to his law office, Kendall tried unsuccessfully to contact an Assistant United States Attorney. 7 He then called Hall and arranged for Hall to pick up the list. Two days later, on May 23, Kendall was summoned to Hall's office where Hall gave him material to deliver to Tom Royals, another of Hall's attorneys. This material consisted of a photocopy of the master list furnished by Thomas and a photocopy of a list in Hall's handwriting containing the names of approximately 13 prospective jurors who might be favorable to Hall. Hall wanted Royals to review the list to see if he knew any of the prospective jurors. Kendall delivered this material to Royals at his home that evening. Realizing that a criminal act was being committed, Royals called Hall, had him bring over his copy of the master list, burned both copies in his fireplace, and resigned as Hall's attorney. Unknown to Royals, however, Hall had made two copies of the master list. Although these two copies were burned on May 24, the original furnished by Thomas remained intact. G.J. 17-18 (testimony of W. D. Kendall); 98-103, 132-33, Ex. 5 (testimony of Leo Hall); 144-50 (testimony of Tom Royals).
On May 28, 1975, Hall and Thomas arranged to meet on a roadside in Jackson, Mississippi. At that meeting, Hall returned the original master list to Thomas along with the handwritten list of potential jurors that he hoped would be placed on the venire. Hall. 20; Thomas. 19; G.J. 103-7 (testimony of Leo Hall). According to Kendall, on May 29 Thomas called Kendall to his office and told him that he was attempting to put the names selected by Hall on the venire for the firearms case scheduled for trial on June 16, 1975. G.J. 19 (testimony of W. D. Kendall). Thomas denied that he made such a statement to Kendall. Thomas. 20.
As a result of this conduct, Thomas and Hall were indicted by a federal grand jury on charges of conspiring to obstruct justice in violation of Title 18, U.S.C., § 371, corruptly endeavoring to obstruct justice in violation of Title 18, U.S.C. § 1503, and, as to Thomas only, contempt of court and unauthorized disclosure of jury selection records, in violation of Title 18, U.S.C. § 401(2) and Title 28 U.S.C. § 1867(f), respectively. The indictment was filed on July 23, 1976. R. Ex. D-2. Several months later, both Thomas and Hall pleaded guilty to the conspiracy count; the other charges were dismissed.
Testimony and documentary evidence before the grand jury, which this Court has reviewed, establish that Thomas and Hall attempted to stack the venire for Hall's trial in the period between the drawing on May 16 and the mailing of summonses on May 30. In his motion for a new trial, Hawkins makes a further allegation:
Defendant alleges on information and belief . . . that Robert Carl Thomas did place on the venire certain names furnished by Curtis Leo Hall . . . 8
Contrary to this allegation, we have been able to determine conclusively that the venire used in Hawkins' trial was identical with the one selected for Hall's trial; it contained no names other than those selected at the May 16 drawing, before Hall received the master jury list and furnished a list of names to Thomas. The evidence upon which we base this conclusion follows. 9
Present at the drawing before Judge Cox on May 16 were Thomas, Jury Commissioner Paul Bellinger, Deputy Clerk Rita Carver, and a United States Marshal. Thomas and Bellinger thrice drew 25 numbered disks from the qualified jury wheel for the Jackson Division on an alternating basis, rotating the wheel after each draw of 25, until 75 disks had been...
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