U.S. v. Okiyama, 75-1429

• Decision Date: 20 August 1975
• Docket Number: No. 75-1429,75-1429
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Vincent OKIYAMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 601

521 F.2d 601

UNITED STATES of America, Plaintiff-Appellee, v. Frank Vincent OKIYAMA, Defendant-Appellant.

No. 75-1429.

United States Court of Appeals, Ninth Circuit.

Aug. 20, 1975.

Howard G. Trapp (argued), Agana, Guam, for defendant-appellant.

Jonathan Rapore, Asst. U. S. Atty. (argued), Agana, Guam, for plaintiff-appellee.

OPINION

Before CHAMBERS, ELY and HUFSTEDLER, Circuit Judges.

PER CURIAM:

Okiyama appeals from his conviction for narcotics offenses (21 U.S.C. §§ 952, 841), contending that the district court erred in denying his pretrial motion to dismiss the indictment on the ground that the grand and petit juries had not been selected in substantial compliance with applicable statutory provisions (28 U.S.C. §§ 1864, 1865, 1866, 1867). ¹ We hold that substantial compliance was lacking and that dismissal of the indictment is required despite the absence of any showing that Okiyama suffered prejudice from the deficiencies in the selection processes.

The Clerk's Office for the District of Guam sent out approximately 600 questionnaires to prospective jurors, of which 437 were returned. No effort was made to follow up those that were not returned. Of the 437 individuals whose forms were returned, apparently three were determined to be unqualified to serve; it is not clear whether the deputy clerk or the district court made this determination. (See 28 U.S.C. § 1865.) Thirty names were selected by lot as prospective grand jurors, of which twenty-three were chosen to serve. Again, it is unclear whether the deputy clerk or the district court excused six of the seven individuals who were not chosen; the deputy clerk testified that he personally excused one of the seven. Eight of the twenty-three persons selected as grand jurors failed to answer the question on the form that asked about the extent of his or her education. One person answered that she could understand "very little" English and that she had finished the fourth grade. Another person did not sign her questionnaire although the form called for a signature under oath. Two persons gave ambiguous answers to questions about their addresses. Another failed to respond to the question about his employment. The answers on one questionnaire were written in handwriting which was markedly different from the signature on the form; on the same form, four questions were unanswered. The two persons with the highest level of educational achievement, a university student and a high school graduate, were excused from grand jury service. The deputy clerk testified that he personally excused the university student. No reasons were given for excusing these persons. The forms filled out by several persons selected for service on the petit jury pool reveal the same sort of defects: unanswered questions, ambiguous answers, and an indication of little knowledge of English.

The district court's finding of substantial compliance is clearly erroneous. Persons who cannot understand, read or speak English are not qualified to sit as jurors. (28 U.S.C. § 1865(b).) The failure to require prospective jurors to answer all questions on the forms, especially those concerning the level of educational achievement, deprived the court of information from which it could have determined whether prospective jurors were or were not language-qualified. With respect to at least one grand juror, there appears to have been no information upon which the court could have based such a determination; four questions were unanswered, and the form was apparently filled out by someone other than the grand juror who signed the form. The deficiencies in compliance were substantial.

The Government attempts to uphold the district court's order on the ground that Okiyama failed to show prejudice from the statutory violations. We reject the argument because the prejudice inquiry is not relevant in this context.

The legislative history of 28 U.S.C. § 1867(d) reveals that Congress deliberately excised a prejudice component that had existed in a prior version of the bill which was ultimately enacted as the Jury Selection and Service Act of 1968 and codified, in part, as Section 1867(d). As the House Report (No. 1076) explained:

"A committee amendment to S. 989 eliminates the need to prove prejudice as a condition of judicial intervention when substantial noncompliance with the act is established. The committee believes that the 'prejudice' requirement would unduly burden the procedure established by the bill for challenging noncompliance." (U.S.Code Cong. & Admin.News 1968, at 1806.)

Even if Congress had not spoken its mind so clearly, the prejudice concept should not be invoked when, as here, the deficiencies in the selection process created the serious risks that those selected were not sufficiently proficient in English to understand the proceedings in which they were to participate and, further, that the veniremen did not represent a fair cross section of the community. (Cf. Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 225, 66 S.Ct. 984, 90 L.Ed. 1181; United States v. McDaniels (E.D. Fla. 1973) 370 F.Supp. 298, 301.) ²

Okiyama fully met the only burden placed upon him when he established that the procedures employed in selecting the grand jury that indicted him and the petit jury before whom he would be tried did not substantially comply with the applicable statutes. ³

Reversed and remanded with the recommendation to dismiss the indictment.

1 The applicable statutory provisions of Title 28 provide in relevant part as follows:

§ 1864.

(a) From time to time as directed by the district court, the clerk or a district judge shall publicly draw at random from the master jury wheel the names of as many persons as may be required for jury service. The clerk or jury commission shall prepare an alphabetical list of the names drawn, which list shall not be disclosed to any person except pursuant to the district court plan and to sections 1867 and 1868 of this title. The clerk or jury commission shall mail to every person whose name is drawn from the master wheel a juror qualification form accompanied by instructions to fill out and return the form, duly signed and sworn, to the clerk or jury commission by mail within ten days. If the person is unable to fill out the form, another shall do it for him, and shall indicate that h...