United States v. Blair
| Decision Date | 26 March 1973 |
| Docket Number | No. 29916 Summary Calendar.,29916 Summary Calendar. |
| Citation | 470 F.2d 331 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John A. BLAIR et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Milton E. Grusmark, Miami Beach, Fla., for Crews and Court appointed for Blair.
Fred A. Jones, Jr., Miami, Fla., Court appointed for Harrell.
Samuel S. Forman, Miami, Fla., Court appointed for Dunn.
Robert W. Rust, U. S. Atty., J. Daniel Ennis, Miami, Fla., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
Certiorari Denied March 26, 1973. See 93 S.Ct. 1536.
This case is another "entangled web of human miscreancy and judicial error."1 The defendants were apparently apprehended "red-handed" in the act of purloining mail from a United States Post Office, two of the defense counsel were disbarred, the interrogating Postal Inspector, in violation of the express mandates of Miranda, persisted in questioning one defendant for more than an hour after the suspect had expressly requested presence of counsel before surrendering his Fifth Amendment rights, one Government Attorney has filed a brief in this Court containing an unfortunately misleading statement of fact, the District Clerk has not supplemented the master jury wheel with names of newly registered voters purportedly in violation of the District's Plan, and even the District Court has been pushed, been pulled or fallen into judicial error, since he inadvertently, but nonetheless in violation of Rule 11, F.R.Crim.P., neglected to assure that the record explicitly reflects that he informed one defendant of the maximum penalty which could result from his plea of nolo contendere or to ascertain whether or not his plea was the result of any inducements or promises of leniency. The net result of all this confusion is that we must vacate the convictions of two of the defendants and remand their cases for a new trial or rearraignment, although we affirm the other two convictions.
The first issue in this appeal, and the only one urged by all defendants, is the contention that the failure of the District Clerk to supplement the master jury wheel with names randomly selected from among persons who registered to vote subsequent to the initial filling of the master jury wheel violated the Plan of the United States District Court for the Southern District of Florida for the Random Selection of Grand and Petit Jurors (Plan). The effect of this alleged non-compliance is said to be a disenfranchisement of certain young persons (namely 21 and 22 year olds) from the statutory right2 to serve on juries and a denial of defendants' rights to be indicted and tried by a jury fairly representative of the community.
Unlike the defendants in United States v. Kuhn,3 these defendants do not attack the validity of the Plan, but rather they urge that the District Clerk, who, pursuant to the Plan, manages the jury selection process under the supervision and control of the Chief Judge of the District, has not complied with the Plan's affirmative provision that the master jury wheel be "supplemented by the inclusion of subsequent registrants to the latest practicable date." (Emphasis added.) The proof offered by the defendants shows that subsequent voter registration lists are available on a monthly basis, but that the District Clerk has not supplemented the master jury wheel with names selected from among newly-registered voters, with the alleged result that no 21 year old could possibly serve on a grand or petit jury empanelled at the time the defendants were indicted.
The assertion that the Clerk failed to comply with the Plan fails since what the Plan requires to be supplemented is not the Master Jury Wheel, but the voter registration lists.4
This is demonstrated not only by the purpose, location and sentence structure of the disputed phrase, but also by the structure of the Plan, the terms of the Act, its legislative history, and the guidelines formulated by the Judicial Conference of the United States primarily through the Conference Committee on the Operation of the Jury System.5
The Plan is structured for four non-statutory divisions one of which is Miami with which we are concerned. It calls for a very large number of names for each of the master wheels.6
Large numbers are called for not only to assure a fair cross section in the heavily populated Miami metropolitan area, but to afford a sufficient number out of which names could be drawn for the qualified wheel to meet the forecasted needs for both Grand and Petit jurors without the necessity of adding new names to the master wheel. The Kaufman Committee guidelines promulgated at the express direction of the Judicial Conference7 emphasized the importance of this flexibility. The Committee specifically used terms which envisaged that once the Master Wheel was filled, nothing would be added to it until the specified periodic emptying-refilling.8
In the structure of the Plan, unlike the precise outline to be followed in filling the Master Wheel (initially and on subsequent emptying/refilling)9 there was no mechanism prescribed for adding new names in the interim. As the Act permits, (28 U.S.C.A. § 1863(b) (4)) the Plan merely provided that the Court "may order additional names to be placed in the Master Wheels from time to time as necessary".
Thus, those responsible for the penetrating nationwide study and formulation of guidelines, the Judges of the Southern District of Florida, and the Reviewing Panel of the Fifth Circuit contemplated that once filled with a number more than adequate to meet forecasted needs, no new names would be added except in the exigent circumstances "as necessary". In exercising our judicial function in interpreting what is inescapably our own creature the Plan should be interpreted in the light of, and to achieve, these objectives. This is entirely in keeping with the Act since it expressly provided that the ". . . Plan shall provide for periodic emptying and refilling of the master jury wheel at specified times" 28 U.S.C. A. § 1863(b) (4). Congress necessarily contemplated that for a substantial period of time the Master Wheel would be static. This meant that during this period persons becoming potentially eligible for jury service would be excluded. Conversely it meant that there was no requirement that the Plan call for continuous updating. In the Constitutional — statutory goal of a fair cross section Congress had the right to consider practical problems of administrative necessity.10
The disputed clause (note 4 supra) is not a part of the mechanism prescribed for filling or refilling. On the contrary, it is a part of the Court's (and Reviewing Panel's) determination as mandated by the Act (§ 1863(a)) that the Plan is "designed to" and will "achieve the objectives of sections 1861 and 1862" for random selection of jurors from a fair cross section, equal opportunity for jury service and avoidance of discrimination by reason of race, color, sex, religion, national origin or economic status.
Behind this was, of course, the congressional determination that goals could best be attained through the use of voter lists (§ 1869(c), (d)).
Only where necessary to "foster the policy and protect the rights secured by Sections 1861 and 1862 . . ." § 1863(b) (2) are other sources of names to be used. This is the supplementing spoken of.11
In the structure of the Plan interpreted to achieve the objections described, the supplementing (see note 4 supra) is to the voter registration lists, not to the Master Wheel. In other words, the whole Plan declares that voter registration lists are a completely adequate source for random selection with but one qualification. That qualification is that whenever — initially or on periodic emptying/refilling — voter registration lists are used, such lists must be updated to include all subsequent registrants to "the latest practicable date". When that is done, the Plan determines that the policy, purpose and intent of the Act will be fully accomplished by the use of such voter registration lists.
There was, therefore, complete compliance with the Plan,12 and that disposes of the appeals of Crews and Blair, since the jury selection issue is the only point raised by these two appellants.
Harrell's case comes to us on the following facts. Defendant was arrested at a United States Post Office and taken to a workshop area in the post office where he was advised of his rights by the arresting Postal Inspector. In the words of the interrogating officer, "He told me that he wanted representation by an attorney; that he wanted an attorney." Nevertheless, for reasons never really explained,13 against the explicit directions of the defendant14 and in complete disregard of the express language of the Supreme Court's Miranda15 decision, the interrogating officer persisted in questioning Defendant for more than an hour, eliciting incriminating information which was later introduced at trial over Defendant's objection.
The language of the Supreme Court in Miranda could hardly have been more uncompromising. "If the accused indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 445, 86 S.Ct. at 1612 (emphasis added). "The right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege." 384 U.S. at 469, 86 S.Ct. at 1625. "Any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. * * * "If the individual states he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 474, 86...
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