U.S. v. Perez-Hernandez, PEREZ-HERNANDE

• Decision Date: 15 April 1982
• Docket Number: No. 80-5165,D,PEREZ-HERNANDE,80-5165
• Citation: 672 F.2d 1380
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marioefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1380

672 F.2d 1380

UNITED STATES of America, Plaintiff-Appellee, v. Mario PEREZ-HERNANDEZ, Defendant-Appellant.

No. 80-5165.

United States Court of Appeals Eleventh Circuit.

April 15, 1982.

James J. Hogan, Joseph Mincberg, Miami, Fla., John R. Martin, Atlanta, Ga., for defendant-appellant.

David Kairys, Philadelphia, Pa., Charles Stephen Ralston, NAACP Legal Defense and Educational Fund, Inc., New York City, for amici curiae.

Atlee W. Wampler, III, U. S. Atty., Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN, VANCE and KRAVITCH, Circuit Judges.

PER CURIAM:

This appeal challenges the selection of federal grand jury foremen by district judges in the Southern District of Florida between 1974 and 1978. Appellant argues that his indictment should have been dismissed because women and blacks were unconstitutionally excluded from serving as foremen. His claim is based on two separate grounds. First, he contends that the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, et seq., require that grand jury foremen represent a fair cross section of the community, just as this representation is required in grand and petit jury venires. Second, he argues that the equal protection component of the Fifth Amendment due process clause entitles a criminal defendant to be tried on an indictment which is returned from a grand jury untainted by invidious discrimination and that this right encompasses the selection of the grand jury foreman. We emphasize that we are not faced with a challenge to the composition of the grand jury venire, but only the selection of a foreman from that venire.

The relevant facts concerning appellant are brief. In January of 1979, a federal grand jury in Miami returned a three count indictment which charged appellant and two others with various drug related offenses. Appellant subsequently filed a pretrial motion to dismiss the indictment alleging race and sex discrimination in the selection of grand jury foremen. The government and appellant then entered into a stipulation that permitted the parties to adopt the record of United States v. Jenison, another pending case which raised the same pretrial issue. Appellant further agreed to be bound by the decision in Jenison for trial and appellate purposes of his case. On December 18, 1979, the Jenison motion to dismiss was denied, United States v. Jenison, 485 F.Supp. 655 (S.D.Fla.1979), and accordingly, appellant's motion was denied. Appellant then waived a jury trial and was convicted on a single count of heroin possession with the intent to distribute in violation of 21 U.S.C. § 841(a) (1). He now appeals the denial of his pretrial motion to dismiss the indictment. ¹ Therefore, this appeal, for all practical purposes, is a review of the findings and conclusions of the trial court in Jenison. ²

I United States v. Jenison

The trial judge in Jenison made the following relevant findings of fact:

5. Blacks comprise sixteen and six tenths percent (16.6%) of the citizens of the Southern District of Florida aged 18 to 69.

6. Fifty grand juries were empaneled in the Southern District of Florida during the period from 1974 to 1978. One black was chosen to serve as grand jury foreperson in the Southern District of Florida from 1974 to 1978.

7. Women comprise fifty-three percent (53%) of the citizens of the Southern District of Florida aged 18 to 69.

8. Of the fifty grand juries empaneled in the Southern District of Florida during the period from 1974 to 1978, five women were selected to serve as grand jury forepersons.

11. I find that, with the exception of Judge Roettger's practice of alternating between male and female forepersons, the foreperson selection practices of the judges who participated in the questioned empanelments are based on neutral selection criteria and are not prejudicially motivated. There was no purposeful discrimination of the selection of forepersons for the fifty grand juries empaneled in the Southern District from 1974 to 1978.

Record at 663-64. None of these findings are contested. ³ Both parties, however, are dissatisfied with the conclusions of law made in Jenison. The trial judge concluded that the fair cross section protections of the Sixth Amendment and the Jury Selection and Service Act of 1968 are not applicable to the office of grand jury foreman. United States v. Jenison, 485 F.Supp. at 661. He also found, however, that the equal protection component of the Fifth Amendment due process clause does apply to the selection of a federal grand jury foreman. He then concluded that the defendant established a prima facie case of discrimination under an equal protection analysis, but that the government sufficiently rebutted the presumption of discrimination. Id. at 665. Accordingly, he denied the motion to dismiss the indictment.

II Issues

Appellant presents two issues in this appeal. First, he urges that the trial judge erred in finding "fair cross section" protections are inapplicable to the office of grand jury foreman. Second, he argues that, as a matter of law, the rebuttal testimony offered by the government was insufficient under Fifth Amendment standards to defeat a prima facie case of discrimination. The government also challenges two rulings of the trial court. It contends that the office of federal grand jury foreman is of no constitutional or statutory significance, and therefore, appellant cannot seek relief through the protections of the Fifth Amendment. In the alternative, it claims that the trial court erred in concluding that the defendant established a prima facie case of discrimination under the appropriate analysis. Of course, as a final alternative, it argues that the trial court should be affirmed on all issues. We note that these issues have never been raised before a circuit court in the context of a federal grand jury foreman, although several district courts have addressed similar claims. ⁴ After a careful review of appellant's constitutional rights and the record of this case, we affirm for the following reasons.

III Fair Cross Section Rights

The Sixth Amendment to the Constitution grants every criminal defendant "the right to a speedy and public trial, by an impartial jury." The Supreme Court has interpreted this right to mean, among other things, that a petit jury venire must represent a fair cross section of its community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, extends this right to include the venire of a federal grand jury: "It is the policy of the United States that all litigants in federal courts entitled to trial by jury 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." Appellant now urges us to extend the right one step further to the office of federal grand jury foreman. ⁵

Few courts have addressed this question. ⁶ The Jury Selection and Service Act of 1968 does not refer to the office of grand jury foreman. Therefore, we believe the proper course of analysis is to examine the purpose of the fair cross section requirement and determine if it is applicable here. Taylor v. Louisiana offers a comprehensive, but relatively brief discussion of this purpose:

The purpose of a jury is to guard against the exercise of arbitrary power-to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinct groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.

419 U.S. at 530, 95 S.Ct. at 698 (citations omitted). Moreover, "(w)hen any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972). We conclude, therefore, that the purpose of fair cross section protection is to provide a criminal defendant with grand and petit juries which are microcosms of the community. In this way, the Sixth Amendment right to an "impartial jury" is given full effect by insuring that distinct groups of the community are represented, but are not given the opportunity to dominate, or, in the alternative, denied the opportunity to participate, in a democratic system of justice. Accordingly, the fair cross section analysis is only applicable to groups, such as a grand or petit jury, which can represent society as a whole. One person alone cannot represent the divergent views, experience, and ideas of the distinct groups which form a community. Thus, a grand jury foreman is a member of the group which represents a cross section of his or her community, but he or she cannot be a fair cross section of that community. Since we are not presented with a fair cross section challenge to the entire venire of the grand jury below, we must affirm the trial court's ruling on this issue.

IV Equal Protection

Criminal defendants in state courts may challenge discriminatory selections of grand and petit juries through the equal protection clause of the Fourteenth Amendment. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536...