United States v. Abell, Crim. A. No. 82-00018-B.

• Decision Date: 23 November 1982
• Docket Number: Crim. A. No. 82-00018-B.
• Citation: 552 F. Supp. 316
• Parties: UNITED STATES of America v. Michael ABELL, Anthony Anello, Jr., Robert Byers, Jr., Stewart Campbell, Jr., Daniel Duval, Gervasio Guillen, a/k/a Jorge Ortiz-Gormasio, Sally Ivers, Fernando Lopez, James Michael Oliver, David Root, John Sachs, George Valdes, George Veillette, Jr., Fred F. Verderame, Walter Wendolkowski, a/k/a Tappey; a/k/a O.J., Raymond Zeman, Jr.
• Court: U.S. District Court — District of Maine

552 F. Supp. 316

UNITED STATES of America v. Michael ABELL, Anthony Anello, Jr., Robert Byers, Jr., Stewart Campbell, Jr., Daniel Duval, Gervasio Guillen, a/k/a Jorge Ortiz-Gormasio, Sally Ivers, Fernando Lopez, James Michael Oliver, David Root, John Sachs, George Valdes, George Veillette, Jr., Fred F. Verderame, Walter Wendolkowski, a/k/a Tappey; a/k/a O.J., Raymond Zeman, Jr.

Crim. A. No. 82-00018-B.

United States District Court, D. Maine.

November 23, 1982.

COPYRIGHT MATERIAL OMITTED

Jay P. McCloskey, Asst. U.S. Atty., Portland, Me., for plaintiff.

John R. Martin, Atlanta, Ga., for defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This matter is before the Court on the defendants' motion to dismiss. All defendants were indicted on July 22, 1982 for conspiracy to knowingly and intentionally possess with intent to distribute a large quantity of marijuana, in violation of 21 U.S.C. § 846. One of the defendants, Veillette, was further charged in the same indictment with knowingly and intentionally possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

The defendants have alleged irregularities in the selection process for grand and petit jurors and for grand jury forepersons, and seek dismissal of the indictments. They allege that members of the lower socioeconomic class have been systematically underrepresented on grand jury panels, and that women have been systematically excluded from service as grand jury foreperson. The defendants allege that the disproportionate underrepresentation of these groups on the grand jury venire and exclusion of women from the position of grand jury foreperson violates their rights as secured by the Fifth and Sixth Amendments to the Constitution and under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq. (the Act). The defendants have also moved to dismiss the indictment on the grounds that the grand jury venire is composed of jurors from only the Bangor division and not from the entire District of Maine.

Two hearings were held over three days to determine the factual basis for the defendants' claims. Together with numerous exhibits, the Court received expert testimony from social scientists on the identity and cognizability of the lower socioeconomic class in northern Maine and on the significance of the position of grand jury foreperson. Further testimony by a Senior Planner of the State Planning Office provided a statistical analysis for the State of Maine derived from 1970 and 1980 census data. Finally, the Court received the depositions of the two District Judges serving in Maine.

Standing

The defendants have challenged the indictments returned against them on grounds that members of the lower socioeconomic class and women have been excluded from service as grand jury foreperson and on the grand jury venire. The defendants, all but one of whom are men, and none of whom may be members of the lower socioeconomic class, nevertheless claim that they have standing under the Fifth and Sixth Amendments and the Jury Selection and Service Act to establish inadequacies in the grand juror selection and service process.

To determine whether a complainant has standing, the Court must address two issues: whether it is alleged that "the challenged action has caused the plaintiff injury in fact, economic or otherwise;" and whether "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).

The Sixth Amendment guarantees all criminal defendants the right to "speedy and public trial, by an impartial jury." Similarly, the Jury Selection and Service Act of 1968 establishes the right to "juries selected at random from a fair cross-section of the community in the district or division wherein the Court convenes." 28 U.S.C. § 1861. These guarantees of indictment and trial by a jury drawn from a panel representative of a fair cross-section of the community do not lapse merely because the defendant is not a member of the allegedly excluded class. Regardless of the gender, race, and other characteristics of the particular defendant, a "fair cross-section" of the community must include members of all cognizable classes in the community. A grand jury drawn from a venire from which an identifiable group has been excluded does not represent such a fair cross-section, and any defendant indicted before such a grand jury has been denied a fundamental right secured by the Sixth Amendment and the Act. Taylor v. Louisiana, 419 U.S. 522, 526-28, 95 S.Ct. 692, 695-97, 42 L.Ed.2d 690 (1975); United States v. Cabrera-Sarmiento, 533 F.Supp. 799, 806 (S.D.Fla.1982). He is injured because his constitutional and statutory rights to an impartial jury have been violated and undoubtedly, he is within the zone of interests sought to be protected by these guarantees. Further, the injury resulting from defective selection procedures casts doubt upon the integrity of the judicial process. Therefore, I find that these defendants have standing to allege such violations of the Sixth Amendment and the Jury Selection and Service Act even though they may not be members of the excluded or underrepresented classes. Taylor v. Louisiana, supra, 419 U.S. at 526, 95 S.Ct. at 695; United States v. Cabrera-Sarmiento, supra, 533 F.Supp. at 806; United States v. Musto, 540 F.Supp. 346, 351 (D.N. J.1982).

The defendants have also challenged the jury selection process on equal protection grounds, through the due process clause of the Fifth Amendment. Seemingly inconsistent statements in several recent Supreme Court opinions raise some question over whether they have standing to make this claim. In Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1971), a plurality of the Court stated "when a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional violation does not depend on the circumstances of the person making the claim." 407 U.S. at 498, 92 S.Ct. at 2166. The Supreme Court reaffirmed this statement in the context of a Sixth Amendment claim three years later in Taylor v. Louisiana, supra, 419 U.S. at 526, 95 S.Ct. at 695.

A different view was expressed by the Supreme Court in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Considering a claim that Mexican Americans were underrepresented in the grand jury selection process, the Court stated:

In order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.

430 U.S. at 494, 97 S.Ct. at 1280.

In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the Supreme Court quoted with approval the above language from Castaneda, supra, 443 U.S. at 565, 99 S.Ct. at 3005, finding that defendants, black residents of Tennessee, have standing to challenge the exclusion of blacks from the position of foreperson of the state grand jury. At the same time, however, the Court emphasized the fundamental importance of the interests protected by the equal protection clause. The Court was unequivocal in its condemnation of a jury selection procedure that excluded a cognizable class of citizens otherwise able to serve, regardless of whether the party challenging the procedure was a member of the excluded group:

The exclusion from grand jury service of any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has emphasized such discrimination not only violates our Constitution and the laws enacted under it but is at war with the basic concepts of a democratic society and a representative government. The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts. citations omitted

443 U.S. at 556, 99 S.Ct. at 3000.

This Court is aware that several lower courts have attempted a reconciliation of this seemingly conflicting authority. See, allowing standing, United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982); United States v. Cabrera-Sarmiento, supra; Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981); United States v. Jenison, 485 F.Supp. 655 (S.D.Fla.1979); but see, denying standing, Beal v. Rose, 532 F.Supp. 306 (M.D.Tenn.1981); United States v. Cross, 516 F.Supp. 700 (M.D.Ga.1981); United States v. Layton, 519 F.Supp. 946 (N.D.Cal. 1981); United States v. Musto, supra. In considering the same question, this Circuit has held that a challenge on equal protection grounds to a jury selection system need not be brought by a member of the allegedly excluded group. United States v. Butera, 420 F.2d 564, 567 n. 2 (1st Cir.1970).

I am persuaded that the guarantees of the equal protection clause protect the integrity of and public confidence in the administration of justice, as well as individual rights. As a result, while conceding that the authority in this area is not unambiguous, I find these defendants have standing to assert their claims on equal protection grounds under the due process clause of the Fifth Amendment without regard to their membership in the allegedly excluded class.

The Constitutional Significance of the Foreperson

The defendants allege that the systematic exclusion of women from the position of grand jury foreperson violates their rights under the Fifth and Sixth Amendments and under the Jury Selection...