United States v. Anzelmo, Crim. A. No. 31585.

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Writing for the Court: Leon D. Hubert, Jr., Edward M. Baldwin, Baldwin & Merhige, New Orleans, La., for Joseph H. Kavanaugh
• Citation: 319 F. Supp. 1106
• Parties: The UNITED STATES of America v. Salvador ANZELMO, Jack P. F. Gremillion, Ernest A. Bartlett, Joseph H. Kavanaugh, Charles H. Ritchey.
• Docket Number: Crim. A. No. 31585.
• Decision Date: 29 October 1970

319 F. Supp. 1106

The UNITED STATES of America
v.
Salvador ANZELMO, Jack P. F. Gremillion, Ernest A. Bartlett, Joseph H. Kavanaugh, Charles H. Ritchey.

Crim. A. No. 31585.

United States District Court, E. D. Louisiana, New Orleans Division.

October 29, 1970.

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319 F. Supp. 1109

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Gerald J. Gallinghouse, U. S. Atty., Julian R. Murray, Asst. U. S. Atty., New Orleans, La., Edward J. Barnes, U. S. Dept. of Justice, Washington, D. C., for the United States

Walter F. Gemeinhardt, New Orleans, La., for Salvador Anzelmo.

H. Alva Brumfield, Baton Rouge, La., Camille F. Gravel, Sr., Gravel, Roy

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& Burnes, Alexandria, La., for Jack P. F. Gremillion

Sam Sexton, Jr., Sexton & Wiggins, Fort Smith, Ark., for Ernest A. Bartlett.

Leon D. Hubert, Jr., Edward M. Baldwin, Baldwin & Merhige, New Orleans, La., for Joseph H. Kavanaugh.

Russell J. Schonekas, Tucker & Schonekas, New Orleans, La., for Charles H. Ritchey.

HEEBE, District Judge:

These five defendants were jointly charged in a 25-page indictment with one conspiracy count and 15 substantive counts for violations of the Securities Act of 1933 (hereafter SEC laws) and mail fraud statutes. They have filed numerous motions, which the Court, instead of treating separately, has grouped into generic categories. The motions, except to the extent expressly granted, are hereby denied.

I. ALLEGED DEFECTS INVOLVING THE GRAND JURY

A. Grand jury array.

The defendants attack the grand jury array on various grounds, none of which hold any merit.

In the summer of 1968 an investigative grand jury was convened in the Eastern District of Louisiana in New Orleans, to hear testimony regarding possible violations of Federal Criminal laws which occurred in the operation of Louisiana Loan and Thrift (hereafter LL&T). This investigative grand jury met periodically until December 1968. On December 23, 1968, a new jury selection act, Public Law 90-274 (28 U.S.C. §§ 1861-1869) went into effect instituting new procedures for the selection of grand and petit juries. In order to comply with the new jury selection law, a second grand jury was impanelled in January 1969. It was this second grand jury which returned the instant indictment on February 14, 1969.

This second grand jury, impanelled in January 1969, was selected in accordance with the plan for random selection of grand and petit jurors adopted by unanimous consent of the judges of the United States District Courts of the Eastern District of Louisiana and approved by the reviewing panel of the Fifth Circuit on September 10, 1968. This plan was adopted and approved pursuant to 28 U.S.C. § 1863(a) which provides that "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 objective of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title."

One of two objections the defense raises is that the grand jury array was selected from only five of the thirteen parishes constituting the New Orleans Division, where the five included parishes are representative of a metropolitan area and the eight excluded parishes are representative of a rural area. This was the situation prior to January 1969, but not so any longer. Under the new random selection plan, prospective juror names are taken from all parishes for each division.

The second objection to the grand jury array is that the second grand jury, impanelled in January 1969 was randomly selected from names drawn from the voter registration lists of every parish in both the New Orleans and Baton Rouge divisions of this district, thereby intentionally excluding all otherwise qualified persons who are not registered to vote. United States v. Hoffa, 196 F. Supp. 25 (S.D.Fla.1961) is cited for the proposition that "* * * a jury panel from which all were deliberately and systematically excluded who did not register to vote, in a community where many citizens qualified for Federal jury service do not so register * * * is not a fair representation of the community." At 31.

But Hoffa was an unusual case, limited to its facts, generally repudiated by subsequent cases, and legislatively put to rest by the Jury Selection and Service

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Act of 1968. In Hoffa, the jury commissioner and deputy clerk deliberately excluded from jury service an extremely high percentage of eligible jurors. Only those women who had volunteered for jury service in the state were considered; and in three counties in the district, only those male and female jurors previously selected for jury duty in state courts were considered for federal juries

In Chance v. United States, 322 F.2d 201 (5th Cir. 1963), reh. den. 331 F.2d 473 (5th Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34, the court restricted Hoffa to its facts, and refused to condemn the use of voter registration lists. The law is well summarized in United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), at 778:

"The first contention that the use of voter registration lists as the primary source of names of prospective jurors is improper under the Civil Rights Act of 1957, runs head on into the contrary authority of United States v. Greenberg S.D.N.Y.1961, 200 F. Supp. 382; United States v. Agueci 2d Cir. 1962, 310 F.2d 817, 833-834; Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, 643-644, cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052; Chance v. United States, 5 Cir., 1963, 322 F.2d 201, 202-205, rehearing denied, 5 Cir., 1964, 331 F. 2d 473, cert. denied, 379 U.S. 823, 85 S.Ct. 47, 13 L.Ed.2d 34; United States v. Kenner, S.D.N.Y., 1965, 36 F.R.D. 391. Suffice it to say that these cases make it palpably clear that the persons who are not registered to vote do not constitute `any identifiable group in the community which may be the subject of prejudice.' Swain v. State of Alabama, 1965, 380 U.S. 202, 205, 85 S.Ct. 824, 13 L.Ed.2d 759."

The Jury Selection and Service Act of 1968, Public Law 90-274, 28 U.S.C. § 1863(b) (2) provides the fundamental requirement that voter lists be used as the basic source of juror names. 28 U.S. C. § 1863, Plan for Random Jury Selection, provides in subsection b

"Among other things, such plan shall—

* * *

"(2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title."

The judges of this district, following the literal language and clear intent of the statute, concluded "(v)oter registration lists, including any and all federal registrars' lists, represent a fair cross section of the community * * * and since the rights of all citizens are substantially protected by the use of such lists as the source of selection of prospective jurors, * * * no other source is proposed." (Plan for Random Selection)

The legislative history as reflected in House Report No. 1076, which substantially adopted Senate Report 891 on Senate Bill 989 states:

"S. 989, as amended, embodies two important general principles: (1) random selection of juror names from the voter lists of the district or division in which court is held; and (2) * * *." (U. S. Code Congressional and Administrative News, 1968, p. 1793)

It further goes on to state:

"The bill specifies that voter lists be used as the basic source of juror names. These lists provide the widest community cross section of any list readily available." Id. at 1794.

Congress had both anticipated and rejected the argument that the selection of juries from voter lists would not produce a cross section of the community and would discriminate against nonvoters.

"In a sense the use of voter lists as the basic source of juror names discriminates

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against those who have the requisite qualifications for jury service but who do not register or vote. This is not unfair, however, because anyone with minimal qualifications— qualifications that are relevant to jury service—can cause his name to be placed on the lists simply by registering or voting. No economic or social characteristics prevent one who wants to be considered for jury service from having his name placed in the pool from which jurors are selected." H. Rept. 1087, U. S. Code Cong. and Adm. News 1968, pp. 1794-1795.

B. Grand jury misinformed.

The defendants allege that the grand jury was not advised sufficiently of the applicable laws relating to the subject under investigation so that regardless of any evidence presented to them, they could not form a basis for a reasonable determination of proper cause for indictment and/or the return of a true bill.

There is no factual basis to support such a motion. This Court presumes that the government has acted in good faith. The defendants will be adequately protected at a trial where the Court will instruct the jury on the proper law for their deliberation before rendering a verdict.

C. Grand jury bias.

The defendants seek to dismiss the indictment on the basis of grand jury bias in three particulars. The first is that the foreman of the grand jury was the president of a bank and a member of the Louisiana Bankers Association. The defendants argue that because banks were in competition with Louisiana Loan and Thrift for deposits of money from the public, this grand juror was biased against LL&T.¹ The second is that one of the grand jurors was related by marriage to a director of LL&T. The defendant Anzelmo argues that this grand juror was prejudiced against LL& T.² In order to dismiss an indictment because of...