U.S. v. Royal

• Decision Date: 12 November 1996
• Docket Number: No. 95-2176,95-2176
• Citation: 100 F.3d 1019
• Parties: UNITED STATES, Appellee, v. JEROME E. ROYAL, Defendant - Appellant
• Court: U.S. Court of Appeals — First Circuit

Page 1019

100 F.3d 1019

UNITED STATES, Appellee, v. JEROME E. ROYAL, Defendant - Appellant.

No. 95-2176

United States Court of Appeals, First Circuit

November 12, 1996

Appeal from the United States District Court for the District of Massachusetts, [Hon. Robert E. Keeton, U.S. District Judge] James E. Carroll, by Appointment of the Court, with whom Erin k. Kelly and Cetrulo & Capone, Boston, MA, were on brief for defendant-appellant.

Nadine Pellegrini, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief.

Before: Torruella, Chief Judge, Boudin, Circuit Judge, and Barbadoro,^* District Judge.

TORRUELLA, Chief Judge.

Appellant Jerome Royal ("Royal") makes several claims on appeal. Specifically, he challenges the denial of his motions relating to jury selection and jury instructions, the sufficiency of the evidence supporting his conviction, and sentencing considerations. For the reasons discussed below, we reverse the denial of Royal's motion to inspect the master jury wheel and remand to allow Royal to inspect the master jury wheel and other relevant records. We also vacate and remand the restitution order for findings regarding, and sentencing for, only those losses that Royal reasonably could have foreseen. We affirm on all other points.

BACKGROUND

Factual History

We briefly sketch out the bare facts of this conspiracy, providing facts related specifically to Royal as they become relevant. Considering the evidence in the light most favorable to the verdict, United States v. Kayne, 90 F.3d 7, 13 (1st Cir. 1996), the jury could have found the following. EZ-EM, Inc., was a distributorship for Andover Tractor Trailer School ("ATTS"), a correspondence school in Methuen, Massachusetts. ATTS was party to a program participation agreement with the Department of Education to participate in the PELL grant program, the Guaranteed Student Loan program, the Plus program, and the Supplemental Loans for Students program. Under the agreement, ATTS must require a maximum time frame in which students complete a course with a minimum grade average. ATTS entered into a series of distributors' agreements whereby each distributor would refer students to enroll in ATTS's program.

Darryl Simmes, the financial aid officer for ATTS at EZ-EM, testified that he also acted as a recruiter for EZ-EM. Simmes worked at ALAT, another distributor affiliated with ATTS, prior to joining EZ-EM. Simmes testified that, at ALAT, when a student he recruited did not meet the minimum requirements of the program, he falsified the student's application to make it appear that he met those requirements. These minimum requirements included possessing a driver's license and making less than a certain income to be eligible for financial aid. Later, at EZ-EM, Simmes would contact a student he had recruited to sign a student loan check made out to both the student and the school. These students were told that they would not incur debt by signing the check and, often, later found that they had defaulted on loans they were not aware they had taken out. During the course of EZ-EM's existence, the distributorship enrolled at least 150 students.

Sometimes, EZ-EM provided students with a set of exams including answers, requesting that a newly registered student sign off on the exams. Other times, the tests were forwarded to the student already completed. The completed forms would then be returned to ATTS. EZ-EM also supplied students with answers to later lessons, sometimes mailing these lessons to students. EZ-EM would inform students that they must sign the lessons or risk being thrown out of the program. Employees of EZ-EM paid some students to enroll in the ATTS program. ATTS paid EZ-EM a commission of $600-$700 per student enrolled.

Procedural History

A grand jury indicted Royal on October 7, 1992, on charges of conspiracy to commit mail fraud in violation of 18 U.S.C. Section(s) 371, mail fraud in violation of 18 U.S.C. Section(s) 1341, and aiding and abetting in violation of 18 U.S.C. Section(s) 2. On March 13, 1995, the scheduled day of trial, a petit jury venire of 53 appeared for impanelment. Royal, a black male, orally moved to strike the jury venire. The court granted this motion and rescheduled the trial for one week from that date.

On March 15, Royal filed a motion to inspect the master jury wheel for the years from 1993 to 1995. The following day, Royal filed a Motion to Strike Jury Venire, which argued that the district's jury selection plan systematically excludes blacks from the jury pool. The district court deferred ruling on these motions until Royal could make a proffer demonstrating that the jury plan systematically excluded blacks.

On March 20, 1995, trial commenced in the district court. After viewing the jury venire, Royal renewed his motion to strike the jury venire. Royal further moved for a hearing with respect to the inadequacies of the Amended Jury Plan for the Eastern Division of the District of Massachusetts ("Amended Jury Plan"). In support of his various motions, Royal submitted two affidavits from Dr. Gordon Sutton, Professor of Sociology at the University of Massachusetts at Amherst, which contended that the Amended Jury Plan systematically excluded blacks and other minorities from the jury venire. The district court determined that it did not have statutory authorization to implement the remedy Royal suggested -- supplementing the jury venire such that it would provide a fair cross-section of the community -- and denied Royal's motions.

Following the close of the government's case, Royal moved for judgment of acquittal on all counts. The district court granted the motion only as to Count 24, charging mail fraud. After a six day trial, the jury returned guilty verdicts on one count of conspiracy and eight counts of mail fraud, with verdicts of not guilty on four counts of mail fraud. Royal's sentence included 27 months imprisonment, 36 months supervised release, and restitution of $30,000. This appeal followed.

DISCUSSION

I. Jury Selection

Appellant Royal asserts that he was unconstitutionally denied his right to a jury selected at random from a fair cross-section of the community, as guaranteed by the Sixth Amendment. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). That same right is ensured by the Jury Selection and Service Act of 1968. See 28 U.S.C. Section(s) 1861 et seq. (1994).

A. Motion to Inspect the Master Jury Wheel Records

"To the extent that [Royal's] contentions rest on statutory interpretations, we review the district court's denial of [Royal's] motion de novo. . . . The district court's factual findings, however, will not be disturbed unless clearly erroneous." United States v. Bailey, 76 F.3d 320, 321 (10th Cir.), cert. denied, __ U.S. __, 116 S. Ct. 1889 (1996).

At the first hearing, held on March 15, 1995, the district court stated that the request before it was essentially a request for an evidentiary hearing to extend the scope of requested evidence to include discovery of the master jury wheel. The court then placed the burden on Royal to show "by a factually supportable submission that there is some reasonable basis for supposing that the matters you're asking to get into will have some material bearing upon a decision I am to make." Transcript of hearing, March 15, 1995, at 6. Because Royal made no factually supportable showing of relevance and materiality, the district court denied the motion to inspect.

On a second motion to inspect the jury records, the district court suggested 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 Duren v. Missouri, 439 U.S. 357 (1979). Under Duren, in order to establish a prima facie violation of the fair cross-section requirement, "the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process." Id. at 364. The district court expressed concern that Royal would not be able to satisfy the third prong by showing systematic exclusion. Accordingly, it deferred ruling until Royal could make a showing that would enable the court "to determine whether we are doing something that is potentially useful or instead doing something that's just a waste of resources because it will not be useful in any event." Transcript of Hearing, March 17, 1995, at 15-16.

Under the Sixth Amendment, a defendant has the right to a jury selected from a source fairly representative of the community. See Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975). Section 1867 of Title 28¹ establishes "the exclusive means by which a person accused of a Federal crime . . . may challenge any jury on the ground that such jury was not selected in conformity with the provisions of [the Title]." 28 U.S.C. Section(s) 1867(e) (1994). In Test v. United States, 420 U.S. 28 (1975), the Supreme Court interpreted the relevant statutory language of section 1867. See Test, 420 U.S. at 30. Before voir dire examination or within seven days after the defendant could have discovered the grounds for a challenge, a defendant may move to dismiss the indictment or stay the proceedings for substantial failure to comply with the provisions of the title. 28 U.S.C. Section(s) 1867(a). The statute requires that the challenge be accompanied by "a sworn statement of facts which, if true, would constitute a substantial failure to comply with" these provisions. 28 U.S.C. Section(s) 1867(d). Relevant to our inquiry here, subsection (f) of section 1867 provides that "[t]he parties . . . shall be allowed to inspect, reproduce, and copy such records...