U.S. v. Potter

• Citation: 552 F.2d 901
• Decision Date: 26 April 1977
• Docket Number: No. 76-1590,76-1590
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Dean POTTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 901

552 F.2d 901

UNITED STATES of America, Plaintiff-Appellee, v. James Dean POTTER, Defendant-Appellant.

No. 76-1590.

United States Court of Appeals Ninth Circuit.

April 26, 1977.

Michael D. Bebow, argued, Leonard W. Goldstein, Sausalito, Cal., for defendant-appellant.

Lawrence J. Semenza, U. S. Atty., Reno, Nev., Philip M. Pro, argued, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT and WALLACE, Circuit Judges, and BURNS, ^* District Judge.

BURNS, District Judge:

Appellant (Potter) was convicted of importing marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). He claims error as to two rulings by the District Court. The first was a refusal to dismiss the indictment because of discrimination in the selection of the grand jury, and the second was a denial of the motion to suppress evidence garnered in a search of Potter's airplane.

I. GRAND JURY CHALLENGE

The Jury Selection Act of 1968, 28 U.S.C. § 1861 et seq., establishes as a national policy the right of all litigants to have grand (and, of course, trial) juries selected at random from a fair cross-section of the local community. Section 1863 of the Act mandates the use of voter registration lists or lists of actual voters as the primary source of jurors, but requires the use of other sources of names where necessary to insure a fair cross-section. Section 1867 sets forth the mechanics for challenge and provides for a stay of proceedings or dismissal of the indictment whenever there is a substantial failure to comply with the provisions of the Act.

" There is no requirement that a grand jury be a statistical mirror of the community, United States v. DiTommaso, 405 F.2d 385, 389 (4th Cir. 1968), or that it conform to proportionate strength of each identifiable group in the total population, Simmons v. United States, 406 F.2d 456, 461 (5th Cir. 1969)", United States v. Gast, 457 F.2d 141, 142 (7th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972), but "any substantial deviations must be corrected by use of supplemental sources." S.Rep.No.981, 90th Cong., 1st Sess. at 17 (1967).

Pursuant to the amended plan of the United States District Court for the District of Nevada (Southern Division) ¹ for the random selection of grand and petit jurors, in 1972, 7,436 names were selected at random from the voter registration lists. In October, 1974, 2,112 names were selected from among the 7,436 names and questionnaires were mailed to these individuals. Of the 2,112, 1,449 questionnaires were returned to the Clerk of the Court. The grand jury which indicted Potter was selected from among the 1,449 individuals who returned questionnaires. Appellant's expert compiled figures gleaned from 311 questionnaires, selected at random from the 1,449 returned questionnaires. ² This, together with Census Bureau and voter registration statistics, produced the following information. 41.2% of the general adult population of the Division was between the ages of 18 and 34. Persons between the ages of 18 and 34 comprised 29.7% of the voter registration list and 28.6% of the random sample of the jury wheel. 75.1% of the general adult population had an education of high school or below, while only 53.1% of the jury wheel sample had a high school education or less. Blacks comprised 8.5% of the general population in the District, but made up only 5.8% of the sample.

Potter contends these disparities must be remedied by supplementation of the voter registration lists with other sources. ³ However, before the absence of a fair cross-section is established and corrective measures are required, appellant must establish a substantial deviation with respect to a cognizable group. We do not reach the question of whether systematic exclusion is required or has been established in this case. Cf. United States v. Ross, 468 F.2d 1213 (9th Cir.); cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971), because we find that the appellant has failed to meet his burden of establishing cognizability or substantiality of deviation.

A precise definition of what constitutes a cognizable group is lacking in the decided cases, nor do we believe a static, fixed definition is desirable. ⁴ Because the Act requires "a fair cross section of the community in the district or division wherein the court convenes" cognizability will necessarily vary with local conditions. Thus, for instance, variations in geographical representation, either between counties or between rural and urban areas, may be significant in some districts and not in others.

The cognizability requirement is generally said to derive from Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), in which the Supreme Court held:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated . . .

The petitioner's initial burden . . . was to prove that persons of Mexican descent constitute a separate class in Jackson county, distinct from "whites." Id. at 478, 74 S.Ct. at 670-671.

In Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), the Supreme Court stated that systematic exclusion of economic, social, religious, racial, political and geographical groups in the community would violate the cross-sectional requirement.

Further insight into the cognizable-group cross-sectional requirement may be found in a case holding women may not validly be excluded from service on federal juries:

The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men personality, background, economic status and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made of exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded. Ballard v. United States, 329 U.S. 187, 193-94, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946).

Thus, the essence of the cognizability requirement is the need to delineate an identifiable group which, in some objectively discernible and significant way, is distinct from the rest of society, and whose interests cannot be adequately represented by other members of the grand jury panel.

We may approach this determination from several perspectives. Looking at it through the eyes of the group in question, the presence of some internal cohesion is significant.

The group must have cohesion. There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which . . . cannot be adequately represented if the group is excluded from the jury selection process. . . . The group must have a community of interest which cannot be adequately protected by the rest of the populace.

United States v. Guzman, 337 F.Supp. 140, 143-44 (S.D.N.Y.), affirmed, 468 F.2d 1245 (2d Cir.), cert. denied 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).

Viewed in another way, community attitudes are important in delineating a cognizable group. Cobbs v. Robinson, 528 F.2d 1331 (2d Cir.), cert. denied 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976). We must consider whether a particular class is in fact thought of as an identifiable group by the larger community. Quadra v. Superior Court of the City and County of San Francisco, 403 F.Supp. 486 (N.D.Calif.1975). In assessing this factor, the fact of prejudice or community discrimination against the group would clearly be significant, Hernandez v. Texas, supra, Cobbs v. Robinson, supra, because of its tendency to defeat the concept of an impartial grand jury. Cobbs v. Robinson, supra.

We turn now to an application of these considerations to the groups in issue here. As appellant concedes, there is sparse support for his contention that "young people," i. e. those 18 through 34, are a cognizable group for purposes of the Act. Numerous courts have reached a contrary conclusion. E. G., United States v. Olson, 473 F.2d 686 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973) (18-20 not cognizable); United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971) (21-23 not cognizable); United States v. Gast, 457 F.2d 141 (7th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972) (18-26 not cognizable); United States v. Briggs, 366 F.Supp. 1356 (N.D.Fla.1973) (21-29 not cognizable). The sole case recognizing an age group as cognizable is United States v. Butera, 420 F.2d 564 (1st Cir. 1970), which involved the age group 21-34.

In United States v. Ross, supra, we held that the age group 21-24 did not constitute a...