U.S. v. Salamone

• Decision Date: 09 September 1986
• Docket Number: No. 85-5288,85-5288
• Citation: 800 F.2d 1216
• Parties: UNITED STATES of America v. SALAMONE, Salvatore, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1216

800 F.2d 1216

55 USLW 2171

UNITED STATES of America v. SALAMONE, Salvatore, Appellant.

No. 85-5288.

United States Court of Appeals, Third Circuit.

Argued Feb. 10, 1986.

Decided Sept. 9, 1986.

Alan Silber (argued), Merrill N. Rubin, Silber & Rubin, P.C., New York City and Newark, N.J., Stanley Weinberg, Robert C. Fogelnest, Fogelnest & Lynn, Philadelphia, Pa. and Bloomsburg, Pa., Robert Dowlut, Washington, D.C., for appellant.

Joel M. Friedman, U.S. Dept. of Justice, Philadelphia Strike Force, Organized Crime & Racketeering Section, Philadelphia, Pa., Karen Skrivseth (argued), William C. Bryson, U.S. Dept. of Justice, Washington, D.C., for appellee.

Before: HIGGINBOTHAM and STAPLETON, Circuit Judges, and TEITELBAUM, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This appeal arises from the conviction of appellant Salvatore Salamone pursuant to a multicount indictment charging him with various firearms offenses. ¹ Our opinion is restricted to one issue: whether potential jurors in an action involving charges brought under the gun control statutes may be dismissed for cause solely due to their affiliation with the National Rifle Association. ² For the reasons set forth below we will reverse the judgment of the district court.

I.

Appellant was tried before a jury in the United States District Court for the Middle

District of Pennsylvania on various firearms charges alleging the possession of and failure to register an illegally made machine gun, and conspiracy to falsify, and falsification of, firearms transaction records through the use of fictitious names for the purchase of handguns. Prior to trial, during voir dire, the district court excused for cause one potential juror and five potential alternates solely on the basis of their affiliation with the National Rifle Association ("NRA"). Of the jurors selected, ten had firearms in their homes. Of the six alternates selected, five had firearms in their homes. Two of the alternates ultimately served on the jury. Salamone was convicted on six of the seven counts with which he was charged. He was sentenced to a total of twenty years imprisonment and $35,000 in fines. This appeal followed.

II.

Appellant's challenge to the constitution of the jury before which he was tried is two-fold. First, Salamone analogizes the exclusion of NRA members from his petit jury to the "so-called 'death-qualified' juries wherein those individuals who adamantly refuse to impose the death penalty are disqualified from jury service." Brief of Defendant Appellant at 48. Comparing the instant appeal with the Supreme Court's seminal case on juror disqualification in capital cases, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), Salamone contends that "[a] jury swept clean of those who oppose[ ] gun control legislation, but who nevertheless were not asked whether they would in every case acquit solely because the charges involved the possession of weapons, cannot withstand the Witherspoon test." Brief of Defendant Appellant at 49. Second, Salamone maintains that his sixth amendment right to an impartial jury selected from a fair cross-section of the community was violated. In response, the government contends that Salamone's Witherspoon argument cannot prevail because "[a]ppellant has clearly failed to demonstrate that a jury is not impartial when potential jurors reasonably found by the judge to be hostile to enforcement of the statute involved have been excluded." Brief for the United States at 20. With regard to appellant's sixth amendment claim, the government first argues that the fair cross-section guarantee does not extend to the selection of the actual petit jury before which a defendant is tried. Alternatively, the government argues that even if applicable, the proof requirements established under Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) have not been satisfied and, thus, Salamone's fair cross-section challenge cannot be sustained. In addition to the arguments advanced by the parties, amicus curiae, National Rifle Association of America, contends that the alleged violation of appellant's right to an impartial jury is rooted in the fifth amendment's guarantee of due process. See Brief of Amicus Curiae National Rifle Association of America ("NRA Brief") at 7-10. We shall consider appellant's sixth amendment claim first.

III.

"[T]he Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community." Taylor v. Louisiana, 419 U.S. 522, 537, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975). A defendant may establish a constitutional violation by proving that the jury venire did not reflect a fair cross-section of the community. A prima facie violation of the fair cross-section requirement is established upon proof by the defendant "(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 underrepresentation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri Since Taylor, the Supreme Court has consistently maintained that the fair cross-section guarantee is narrow in scope and imposes no requirement that a particular petit jury itself consist of representatives from all distinctive groups in the community. See Taylor, 419 U.S. at 538, 95 S.Ct. at 701. This Term, in an opinion issued after oral argument in the instant appeal, Lockhart v. McCree, --- U.S. ----, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the Court reiterated its reluctance to bring petit juries within the ambit of the fair cross-section analysis. McCree addressed the claim that "death qualification" ³ violates a defendant's right under the sixth and fourteenth amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross-section of the community. In essence, McCree argued that the exclusion of jurors with moral objections to the imposition of the death penalty from the guilt phase of his bifurcated trial resulted in a "conviction-prone" jury rather than one representative of the various viewpoints in the community. Rejecting first the empirical foundation of McCree's claim, i.e., that "death-qualified" juries are "conviction-prone," the Court proceeded to reject the constitutional basis of his argument. Writing for the majority, Justice Rehnquist stated that "[t]he limited scope of the fair cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly 'representative' petit jury ... [Thus,] an extension of the fair cross-section requirement to petit juries would be unworkable and unsound...." 106 S.Ct. at 1765.

439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

The McCree Court did not undertake to fashion a test specifically tailored to govern sixth amendment challenges to the selection methods or composition of petit juries. Instead, the Court noted that under the current proof requirements of the sixth amendment fair cross-section analysis, McCree's challenge to the selection of his petit jury could not prevail. Focusing on the threshold requirement of the Duren test, the Court indicated that the category of "distinctive" groups, the exclusion of which is prohibited by the sixth amendment, is narrowly circumscribed. The Court observed: "The essence of a 'fair cross-section' claim is the systematic exclusion of 'a "distinctive" group in the community.' In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors ... are not 'distinctive groups' for fair cross-section purposes." 106 S.Ct. at 1765 (citations omitted). ⁴ Similarly, applying the Duren requirements to the instant appeal, Salamone's sixth amendment claim that the exclusion of NRA members from his petit jury deprived him of a representative jury must also fail. ⁵ The strong suggestion

from the McCree Court that the "shared attitudes" of a given group is insufficient to qualify it as a "distinctive group" in society for purposes of the sixth amendment compels us to reject Salamone's fair cross-section challenge. That Salamone's claim fails under the analytic framework of the fair cross-section requirement, however, does not leave appellant without a cognizable challenge of the selection of his petit jury.

IV.

Although appellant Salamone's claim does not rise to the level of a sixth amendment violation, our review of the record in light of his Witherspoon argument leads us inexorably to the conclusion that the trial judge abused his discretion in conducting the voir dire proceedings.

During voir dire for the main jury panel the court posed the following questions to the prospective jurors:

THE COURT: ... Are you now or have you ever been a member of or affiliated in any way with the National Rifle Association?

MR. LAUGHLIN: I've been a member of the NRA.

THE COURT: All right. Do you support the principles of that organization, Mr. Laughlin?

MR. LAUGHLIN: Yes, I do.

THE COURT: Okay. Mrs. Houtz.

MRS. HOUTZ: My husband is a member of NRA. He does support it.

THE COURT: And he does support it?

MRS. HOUTZ: Yes.

THE COURT: All right. Are you now or have you ever been a member of or affiliated in any way with a gun, marksmanship or sporting club/organization? Mr. Laughlin.

MR. LAUGHLIN: I belong to the Bucktail club and hunting club in Emporium.

THE COURT: Are you now or have you ever been a member of or affiliated in any way with a survivalist club or organization?

The United States Constitution, ...