U.S. v. Royal, 98-1825

Decision Date05 January 1999
Docket NumberNo. 98-1825,98-1825
Citation174 F.3d 1
PartiesUNITED STATES of America, Appellee, v. Jerome E. ROYAL, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

James E. Carroll, with whom Sheila High King and Cetrulo & Capone LLP were on brief, for appellant.

Nadine Pellegrini, Assistant U.S. Attorney, with whom Donald K. Stern, U.S. Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

After prevailing, in a previous appeal to this court, on his motion to inspect the jury selection records of the Eastern Division of the District of Massachusetts, Jerome E. Royal moved for a new trial, claiming that the selection process used to pick the jury panel that convicted him of conspiracy and mail fraud violated the Sixth Amendment and the Jury Selection and Service Act ("the Act"). The district court denied this motion. Royal appeals, urging that the selection process produces systematic underrepresentation of blacks, an argument which depends upon changing the law of this Circuit governing evaluation of a jury selection challenge. We decline the invitation and affirm.

I

The facts relating to Royal's conviction and first appeal are set forth in United States v. Royal, 100 F.3d 1019 (1st Cir.1996), and we recount only the most relevant aspects here.

Royal was indicted in 1992 on charges of mail fraud, conspiracy to commit mail fraud, and aiding and abetting. See id. at 1023. When the case was called for trial, Royal made various motions relating to the jury venire and the jury selection process for the Eastern Division. The district court denied Royal's motions to inspect the jury records of the Eastern Division, suggesting "that, in order to inspect the requested records, Royal was required to make a showing that he would be able to satisfy the three prongs of [the test for establishing a prima facie violation of the fair cross-section requirement]." Id. at 1024. The case proceeded to trial; the jury found Royal guilty of one count of conspiracy and eight counts of mail fraud. See id. at 1023.

Royal appealed. This court rejected Royal's challenges to the jury charge, the sufficiency of the evidence, and various aspects of his sentence, but reversed the district court's denial of his motions to inspect the jury records and remanded for further proceedings. See id. at 1022. Relying on 28 U.S.C. § 1867(f) and Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975), this court stated that "a defendant, such as Royal, challenging the jury selection procedures has an unqualified right to inspect jury records.... [A] district court may not premise the grant or denial of a motion to inspect upon a showing of probable success on the merits of a challenge to the jury selection provisions." Royal, 100 F.3d at 1025. The court therefore "remand[ed] the case with instructions to allow Royal access to [the jury records] ... in order to support a motion to strike the jury venire" and authorized Royal to "move for a new trial under 28 U.S.C. § 1867(a)." Id. at 1025-26.

Upon remand to the district court, the district judge made provisions for permitting Royal to inspect "[t]he contents of records or papers used by the jury commission or clerk in connection with the jury selection process" for 1994, the year relevant to Royal's particular jury. 28 U.S.C. § 1867(f), quoted in Royal, 100 F.3d at 1025-26. These provisions included a substantial time period for Royal to examine and evaluate the materials as well as the grant of Royal's motions for appointment and compensation of an expert. Eventually, on December 24, 1997, Royal moved for a new trial, claiming that he "was denied his Sixth Amendment right under the United States Constitution and his statutory right under the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., to a jury selected at random from a fair cross section of the community." United States v. Royal, 7 F.Supp.2d 96, 97-98 (D.Mass.1998) (internal quotation marks omitted).

Royal's claim of constitutional and statutory flaws in the selection process was based on the operation and implementation of the Amended Jury Plan for the District of Massachusetts, which is dated September 6, 1989. See generally 28 U.S.C. § 1863(a) ("Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of ... and that shall otherwise comply with ... this title."). This Plan divides the district into three divisions for jury selection purposes, one of which is the Eastern Division at issue in this case (consisting of Barnstable, Bristol, Dukes, Essex, Middlesex, Nantucket, Norfolk, Plymouth, and Suffolk counties). The source for selection of jurors in each division is "the numbered local resident lists submitted annually to the Office of the Jury Commissioner for the Commonwealth of Massachusetts in accordance with Massachusetts General Laws Chapter 234A," which the Plan states "includes all registered voters, supplemented by all residents not registered to vote." 1 Names are randomly selected from the resident lists and placed in the Master Jury Wheel. At this stage, the Plan provides for a one-step summoning and qualification process, as authorized by the Act, see 28 U.S.C. § 1878, and specifies various categories of potential jurors who are unqualified, exempt, and eligible for excuse, in accordance with 28 U.S.C. §§ 1863, 1865, and 1866. The Plan also, inter alia:

(1) requires the Jury Clerk to note the "determination" whether a prospective juror is unqualified, exempt, or excused "in the space provided on the juror qualification form,"

(2) permits the Clerk to "grant temporary excuses to prospective jurors on the grounds of undue hardship or extreme inconvenience," (3) mandates that temporarily excused jurors be resummoned "at the conclusion of the excuse period," and

(4) provides that "[t]he Court will, from time to time, review the actions of the Clerk [in granting such temporary excuses] ... to determine whether or not there is an abuse of the discretion granted to the Clerk."

Upon inspection of the 1994 records, Royal concluded that 21,900 prospective jurors were summoned, that 18,451 returned their juror qualification forms, and that 415 of the forms were returned by individuals identifying themselves as black and 1,185 were returned by individuals who declined to designate their race. The difference between 18,451 and 21,900 is accounted for by the fact that 899 summonses were nondeliverable and 2,550 were not returned by the recipients.

Of the 415 identifiable black prospective jurors who returned qualification forms, Royal discovered, 41 were disqualified and 13 were exempt from service. One hundred and four of the remaining black prospective jurors were excused at some point during the selection process; 10 of those excuses were granted without notation of a request or a reason for the excuse in the records examined.

At juror orientation, Royal found, some 5,571 prospective jurors appeared, of whom 167 were black. Royal determined that 24 prospective black jurors were labeled no-shows and 66 did not appear because their panels were cancelled due to lack of necessity.

To help explain these numbers, Royal had an expert analyze the data. Royal's expert analyzed the zip codes of the nondeliverable and nonreturned summonses and concluded that summonses failed more often in areas in which the size of the black population is relatively significant. For instance, the expert concluded that summonses failed twice as often in areas in which more than 50% of the population is black than they did in areas in which blacks make up less than 2% of the population. The expert also concluded that the Massachusetts resident lists were flawed and undercounted black residents.

On June 12, 1998, the district court denied Royal's motion for a new trial. See Royal, 7 F.Supp.2d at 106-07. The court found Royal's calculation of black underrepresentation faulty because, inter alia, that calculation compared the number of self-identified blacks who returned questionnaires with the total number of individuals (of whatever race) summoned rather than merely with the total number who returned questionnaires. See id. at 105. At any rate, the court concluded, Royal's new trial motion failed, even assuming his calculation was correct, because the levels of disparity that Royal had identified were not objectionable under either the Sixth Amendment or the Act. See id. at 106.

The court also rejected the arguments that the Massachusetts resident lists used as a source for selecting jurors were insufficient because they undercounted blacks, that the alleged failure to account for undeliverable or nonreturned responses violated the Act, and that the Jury Clerk committed a material abuse of discretion by failing to list a reason for excusing ten black prospective jurors. See id. at 101-03.

Royal appeals the district court's denial. We review the district court's findings of fact for clear error and its conclusions of law de novo. See United States v. Paniagua-Ramos, 135 F.3d 193, 197 (1st Cir.1998); Royal, 100 F.3d at 1023-24; United States v. Shinault, 147 F.3d 1266, 1271 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 459, 142 L.Ed.2d 411 (1998). In the end, any dispute over the facts is essentially moot. This case turns on the choice of statistical methodology to determine whether there is underrepresentation of black persons.

II

"[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community," Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and "the fair-cross-section requirement [is] fundamental to the jury trial guaranteed by the Sixth Amendment," id. at 530; see also Holland v....

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