U.S. v. Kennedy, 75-3334

Citation548 F.2d 608
Decision Date14 March 1977
Docket NumberNo. 75-3334,75-3334
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Z. T. KENNEDY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Clarence F. Seeliger (Court appointed), Decatur, Ga., for defendant-appellant.

John W. Stokes, U. S. Atty., Dorothy T. Beasley, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before GOLDBERG, SIMPSON and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

In a July 1975 trial in the United States District Court for the Northern District of Georgia, a jury determined that appellant Z. T. Kennedy was guilty of robbery of a federally insured bank by force, violence, and intimidation, in violation of 18 U.S.C. § 2113(a). The only serious question presented by this appeal concerns the presence of three volunteers on that jury.

We conclude that the emergency use of volunteer jurors selected from those citizens who have just finished a term of jury service violated both the letter and spirit of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869 (hereinafter the Act), and its requirement of random selection from eligible members of the community. We condemn the practice, note its apparent demise, and put all districts under our jurisdiction on notice that its resurrection shall not be brooked.

We also conclude, however, that this appellant cannot avail himself of this substantial failure to comply with the Act. He inexcusably failed to meet the strict formal prerequisites that Congress established as the exclusive means for challenging juries selected in violation of the Act. Moreover, while the use of volunteers violated the strict statutory requirement of random selection, it did not deprive appellant of his constitutional right to a jury drawn from a fair cross section of the community.

Because appellant is foreclosed from asserting the violation of the statutory jury selection procedure and because the jury selection method employed visited no constitutional harm on him, the judgment of conviction is affirmed.

I. Facts and Proceedings Below

On June 11, 1975, appellant was brought to trial before Judge Freeman on both the robbery charge involved in this appeal and a charge of making a false statement regarding prior criminal record while purchasing a firearm. On appellant's motion the judge granted a mistrial to allow severance of the two counts. Trial on the bank robbery charge commenced before Judge Moye July 9, 1975. That trial resulted in the guilty verdict from which this appeal is taken. 1

Among the prospective jurors for the second trial were several who had served as jurors at the prior term of the district court, during which appellant's abortive first trial had taken place. In order to satisfy a deficiency in the number of July prospects available from the qualified jury wheel, the jury clerk, pursuant to standing authorization from the chief judge of the district, had sought volunteers from the list of persons serving during the June term just completed.

No one has provided us any indication how the jury clerk selected from that list the names of prospective volunteers. Once she selected a name, however, the jury clerk's practice was the following, as best discerned from the record: she contacted the former jurors by telephone and asked them if they would perform additional service. She made clear that such service was not mandatory, that she was simply seeking volunteers. She told the volunteers when to report to court; they were not subpoenaed.

Prior to the voir dire for the July trial, the judge struck several prospective volunteer jurors because of possible knowledge gained during their presence in the courthouse during the June proceedings involving appellant. Three volunteers remained on the panel from which a jury would be selected. Just prior to the voir dire of this panel, counsel for appellant orally noted his objection that the presence of the volunteers violated the "random selection rule".

The attorneys then conducted an extensive voir dire of the panel. The three volunteers were individually questioned at length regarding possible knowledge of Kennedy or his prosecution. The three also confirmed that the jury clerk had telephoned them and had asked them to perform additional service. They understood themselves to be acting on a voluntary basis.

At the conclusion of the voir dire, defense counsel renewed his objection to the presence of volunteers. Government counsel made no comment. The court overruled the objection. The trial judge stated his reasons briefly:

The court believes that they were randomly selected by reason of their prior summons for service in June and the court does not believe at this time that the service for an extra period of time by jurors who are willing to do so constitutes a violation of the requirement that jurors are to be randomly selected . . . .

The judge also found no evidence of any prejudice against Kennedy on the part of the three volunteers. The three sat on the jury that returned the guilty verdict before us on appeal.

II. Volunteer Jurors and the Jury Selection Act

The Act provides for dismissal of an indictment, following proper objection, upon a court's determination that there has been a substantial failure to comply with the statutory procedures in selecting a grand or petit jury. 28 U.S.C. § 1867(a). It is abundantly clear that the practice of filling gaps in the month's jury pool with volunteers from last month's jurors introduces a significant element of nonrandomization into the selection process that not only technically violates, but substantially departs from, the Act's requirements.

A. Inconsistency with the Act

The practice unquestionably deviated from the Act's provisions governing petit juror selection in the normal course. The statute provides that the jury clerk shall from time to time "publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels." 28 U.S.C. § 1866(a). 2 The names are placed in grand and petit jury panel lists. When the court orders a jury to be drawn, the jury clerk issues summonses for the required number from the appropriate list. 28 U.S.C. § 1866(a), (b).

The volunteers who sat on appellant's July jury were selected for the prior June term in accordance with the above scheme. When the July term arrived, their names were thus no longer on the lists of those drawn from the qualified jury wheel for assignment to panels. Indeed, it was the very inadequacy of available petit jurors drawn from the qualified jury wheel that prompted resort to the prior month's juror list.

The Act does specifically authorize a court to deal with such unanticipated shortages of petit jurors drawn from the qualified jury wheel. It provides that in such a situation,

"the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title.

28 U.S.C. § 1866(f) (emphasis added). 3 It is on § 1866(f) that the Government must and does rest its argument that the employment of volunteers to meet a shortage was not a violation of the Act. Even this argument, however, proves inadequate.

Even assuming that the list of last month's jurors was an acceptable list from which to select emergency jurors under § 1866(f), 4 we would still confront the telling contradiction between the use of volunteers and the random selection mandated as explicitly by the emergency provision as by the remainder of the Act. Whatever list a court uses as the source of emergency jurors, § 1866(f) requires random selection from that list. It seems self-evident that allowing people to decide whether they wish to perform a particular task is quite the opposite of randomly selecting those who, unless within narrow and objectively determined categories of exemptions and excuses, must perform the task. 5 A volunteer is not a random selectee.

B. Substantiality of the Statutory Violation

Moreover, this failure to comply with the Act must be seen as "substantial", sufficient ground under § 1867(a) to dismiss the indictment. This court has recently had occasion to elaborate on § 1867's "substantial failure to comply" test. In United States v. Davis, 546 F.2d 583, 589, 5th Cir., 1977, we said the following Determining the substantial compliance question requires that the alleged violations of the Act be weighed against the goals of the statute. The major policy of the Act is that juries shall be 'selected at random from a fair cross section of the community.' 28 U.S.C. § 1861. Discrimination is prohibited in the selection process.

(emphasis added). Otherwise technical violations of the statute constitute "substantial failure to comply" when they affect the random nature or objectivity of the selection process.

That the introduction of personal predilections of prospective jurors affects the random nature of the selection process cannot be gainsaid. Surely a district would be in substantial violation of the statute if it selected all its jurors by randomly drawing names from the qualified jury wheel and allowing those selected to opt in or out at will. Limiting such a policy to emergency shortages does not mitigate its nonrandom nature.

We need not speculate as to what sort of biases will be reflected in a jury chosen on the basis of its members' willingness to depart from their daily business and serve as jurors. It is enough to recognize that a substantial variable, not contemplated by the Act's few, narrow categories of qualifications, exemptions, and excuses, has confounded the selection process. 6

The fact that the volunteers on appellant's jury were randomly selected without...

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