U.S. v. Price

• Decision Date: 22 May 1978
• Docket Number: Nos. 77-5368 and 77-5388,s. 77-5368 and 77-5388
• Citation: 573 F.2d 356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George W. PRICE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MIRELES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 356

573 F.2d 356

UNITED STATES of America, Plaintiff-Appellee, v. George W. PRICE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose MIRELES, Defendant-Appellant.

Nos. 77-5368 and 77-5388.

United States Court of Appeals Fifth Circuit.

May 22, 1978.

Phillip Westergren, Corpus Christi, Tex., for Price.

J. A. Canales, U. S. Atty., John M. Potter, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., James R. Gough, Asst. U. S. Atty., Houston, Tex., for U. S. in both cases.

Sherman A. Ross, Houston, Tex., for Mireles.

Appeals from the United States District Court for the Southern District of Texas.

Before SKELTON ^*, Senior Judge, FAY and RUBIN, Circuit Judges.

FAY, Circuit Judge:

The defendants in the above-styled cases contend, inter alia, that the trial court committed reversible error in refusing to quash the jury panels on the basis of interim jury service in similar cases between the time the panels were selected and the commencement of the trials. We have concluded that although the disposition of this issue should be determined favorably to the defendants according to our recent pronouncements in United States v. Mutchler ¹ and United States v. Jefferson, ² each defendant is entitled to a new trial in any event due to the significant delay between jury selection and commencement of the trials, combined with the failure of the trial court to conduct supplemental voir dire prior to hearing the testimony.

I. FACTS

A. The defendant in Case No. 77-5388, Jose Mireles, was indicted for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846. On March 8, 1977, a number of cases, including the case of the defendant Price, were called for jury selection. Prior to selection of the jury, the defendant's attorney moved, along with the other defendants whose juries were being selected, to challenge the venire on the grounds of the exclusion of 18-22 year old individuals, extensive prior jury service, and the likelihood that individuals selected to serve as jurors in the defendant's case would serve on other juries in the interim period between selection and commencement of the trial. On March 9, 1977, after denial of the motion to quash, the jury was selected and directed to return on April 27, 1977, forty-nine days after selection, for commencement of the trial.

Prior to the commencement of the trial on the 27th, the defendant's attorney renewed his objections to the jury panel. At that time he requested that he be permitted to perfect the record concerning interim jury service by his statement into the record rather than through the introduction of the cards maintained by the clerk of the court on each individual juror. The government did not object. The trial court responded that this method of establishing a record of interim service would be satisfactory if the defendant's attorney could assure the court that the information was accurate. The defendant's attorney then replied that he would dictate the figures into the record while the clerk simultaneously conducted a corroborative examination of his records. The record reveals that eleven members of the jury which sat on the defendant's case served as jurors in at least one case during the interim period and seven members served on two cases during this period. The record, however, is relatively silent concerning the precise nature of the cases on which interim service occurred. ³ The defendant was subsequently convicted of the offense charged and sentenced to imprisonment for twelve years with a special parole term of three years.

B. The defendant in Case No. 77-5368, George Price, was charged in a four count indictment with possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Price's case was also called for jury selection on March 8, 1977. Before selecting the jury, Price's attorney joined in the oral motion to quash the venire. The trial court denied the motion, and, with a great degree of equivocation, stated that an opportunity to perfect the record concerning interim jury service may be afforded prior to the commencement of testimony. ⁴ The parties then proceeded to select the jury.

This jury was instructed to reappear on April 21, 1977, forty-three days after being selected. Prior to commencement of the trial, the defendant's attorney renewed his motion to quash the jury panel on the ground of interim jury service and requested to introduce into the record certain substantiating stipulations. The trial court replied that the clerk's records were available to substantiate or refute the defendant's allegations concerning interim service and that no hearing on the issue would be held due to the tardiness of the allegations and the lack of a written motion. The defendant's attorney then reminded the trial court of the earlier indication that an opportunity to perfect the record would be afforded immediately prior to the commencement of the trial. The trial court stood by the refusal to permit further proceedings concerning the issue of interim service. ⁵ The defendant was convicted on all four counts and was sentenced to three years imprisonment on each count, counts two and three to run concurrently with count one, and count four to run consecutively with counts one, two, and three.

II. THE JURY SELECTION AND SERVICE ACT OF 1968

Before analyzing the contentions of the parties, it is necessary to briefly review the jury selection procedure, and the attendant objections which may arise thereto, in order to cast the issues before this Court in the proper perspective.

The Jury Selection and Service Act of 1968, amending 28 U.S.C. §§ 1861-1869, 1871, was enacted to assure that grand and petit jury panels in federal court are selected at random from a fair cross section of the community. ⁶ The Act prohibits discrimination on account of race, religion, sex and national origin ⁷ in the selection of grand and petit jury panels, and directs the district courts to adopt and implement plans in accordance with specified guidelines to assure that the venire is randomly selected. ⁸ Additionally, the Act specifies the procedure to be followed in randomly drawing the names of prospective jurors from the master jury wheel and in the completion of the individual juror qualification forms. ⁹ The Act also deals with the following aspects of jury selection: qualifications for jury service; the summoning of jury panels and exclusions, excusals, and exemptions from jury service; maintenance and inspection of records compiled by the jury clerk or commissioner; and fees to be received by the jurors. ¹⁰ Furthermore, the Act sets forth the procedure to be followed in asserting non-compliance with the provisions of Title 28 governing jury selection. ¹¹

The foregoing discussion of the areas included within the parameters of the Jury Selection and Service Act of 1968 makes it clear that certain phases of juror selection and qualifications are not covered by the Act. For example, the Act does not encompass voir dire of the jury panel. The trial court is accorded broad discretion in determining the scope of voir dire, the content of specific questions, ¹² and whether to question the jurors collectively or individually. ¹³ Although the trial court has the election to conduct the voir dire examination itself, ¹⁴ voir dire affords both the defense and the government the opportunity to select an impartial jury through the exercise of both peremptory challenges and challenges for cause. See Swain v. Alabama, 380 U.S. 202, 219-220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Notwithstanding the broad discretion reposed in the trial court in conducting voir dire, it is nevertheless certain that voir dire is not within the ambit of the Jury Selection and Service Act. First, voir dire is not covered by the terms of any section of the Act. Second, by its very terms,28 U.S.C. § 1867(a) provides that challenges on the ground of substantial failure to comply with the provisions of the title in selecting the grand or petit jury shall be made "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier . . . " (emphasis added). It is obvious that the commencement of voir dire is the cut-off point for challenges under the Act. Hence, objections to the conduct of the voir dire examination cannot be included within the terms of the Act.

The Act likewise does not address the issue of whether members of the jury panel are disqualified because of extensive jury service prior to the commencement of voir dire in the defendant's case. It is well settled in this Circuit that prior jury service during the same term of court alone is not sufficient to support a challenge for cause. A juror may be excused for cause because of prior service only if it can be shown by specific evidence that he has been biased by the prior service. United States v. Riebschlaeger, 528 F.2d 1031, 1032-1033 (5th Cir. 1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976). For the present purposes, we wish to emphasize that if the Riebschlaeger standard is met a challenge based upon prior service may be maintained during voir dire as a challenge for cause, ¹⁵ and is not conditioned upon compliance with 28 U.S.C. § 1867(a) and (d).

Finally, and most important for the purposes of these appeals, the Act in no way addresses the issue of the propriety of jury service in the interim between jury selection and commencement of testimony in a defendant's case. The Jury Selection and Service Act deals with the creation of the jury wheel, random selection therefrom, and statutory qualifications, exemptions, and exclusions, and in no way purports to include within its ambit events transpiring subsequent to the commencement of...