United States v. Briggs, GCR 1353.

• Decision Date: 31 May 1973
• Docket Number: No. GCR 1353.,GCR 1353.
• Citation: 366 F. Supp. 1356
• Parties: UNITED STATES of America v. John K. BRIGGS et al.
• Court: U.S. District Court — Northern District of Florida

366 F. Supp. 1356

UNITED STATES of America v. John K. BRIGGS et al.

No. GCR 1353.

United States District Court, N. D. Florida, Gainesville Division.

May 31, 1973.

Wm. H. Stafford, U. S. Atty., Pensacola, Fla., S. J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for United States.

Doris Peterson, James Reif, Morton Stavis, Nancy Stearns, New York City, Larry G. Turner, Gainesville, Fla., Cameron Cunningham, Brady S. Coleman, Austin, Tex., for defendants.

ORDER

ARNOW, Chief Judge.

Defendants herein filed a motion to dismiss indictment and strike the petit jury array and to stay the proceedings and also motion for inspection, reproduction and copying of the records and papers in the custody of the clerk of court pursuant to 28 U.S.C. § 1867(a), (d) and (f). The latter motion was granted and an evidentiary hearing was held thereafter. (Because, in the interim, the master jury wheel involved was refilled, this hearing dealt only with the grand jury. Another motion addressed to the petit jury has now been filed and will be dealt with in a separate order.) In the original motion to dismiss the indictment and strike the petit jury array defendants based their challenge on the grounds that certain selection procedures and standards for jury service are violative of the Fifth and Sixth Amendments to the United States Constitution and do not substantially comply with 28 U.S.C. § 1861 et seq. At the hearing no evidence was presented concerning some of the matters alleged in the original motion nor were these matters mentioned in defendants' post-hearing memorandum.¹ The challenge now appears based on the matters brought out in the evidentiary hearing, which are the same as those covered in the memorandum. This decision, therefore, will deal only with these matters and in the order in which they are set forth in the memorandum.

1) WHETHER THE DECISIONS OF THE FIFTH CIRCUIT UPHOLDING THE PLAN AGAINST VARIOUS DISCRETE CHALLENGES BAR ANY ASPECT OF THE CHALLENGE HERE PRESENTED.

Initially, defendants contend that United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971), upholding the Plan, is to be construed as only upholding that provision of the original Plan, now amended, which called for refilling the Master Wheel at five-year intervals and which resulted in claimed exclusion of persons 21 to 23 years of age, which persons the court held not to constitute a cognizable group. With this narrow construction this Court cannot agree. In the last paragraph of its opinion the Court of Appeals stated "The `Plan' fully conforms to the guidelines prepared by the Committee on the Operation of the Jury System and to the declared statutory policy of the United States to afford litigants the right to be tried by juries selected at random from a fair cross section of the community. 28 U. S.C. § 1861. There is nothing contained therein which could have caused a distinct group of the community to be systematically excluded . . ." In addition, in United States v. Gooding, 473 F.2d 425 (5th Cir. 1973), involving the Plan for the Southern District of Florida, the court specifically stated, "A similar plan for the Northern District of Florida was upheld in United States v. Kuhn . . ." This Court concludes the Plan is valid on its face as fully complying with statutory and constitutional requirements, such being determined both by this Court's own conclusion and the holdings of Fifth Circuit Court of Appeals.

Defendants further contend that the other Fifth Circuit cases which have considered the use of voter registration lists as the sole source of names for random selection from the Master Jury Wheel are also inapposite because of the various factors upon which those decisions were based. This Court readily concedes that the challenges presented in those cases may not have been as broad-based nor as exhaustively developed as that presented here. However, regardless of the particular challenge presented or the reason for its disposition in the various cases, the Fifth Circuit has repeatedly held that the use of voter registration lists "as the sole source of names for jury duty is constitutionally permissible unless this system results in the systematic exclusion of a cognizable group or class of qualified citizens." Camp v. United States, 413 F.2d 419, 421 (5th Cir. 1969), cert. den. 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); United States v. Dangler, 422 F.2d 344 (5th Cir. 1970); Grimes v. United States, 391 F.2d 709 (5th Cir. 1968), cert. den. 393 U.S. 825, 89 S.Ct. 87, 21 L.Ed.2d 96 (1968). See also United States v. Allen, 445 F.2d 849 (5th Cir. 1971).

These cases bar any challenge to the Plan under attack unless it can be shown that, in its operation, the Plan results in systematic exclusion of a cognizable group or class of qualified citizens.

2) WHETHER THE UNDERREPRESENTATION OF BLACKS ON THE VOTER LIST FROM WHICH THE MASTER JURY WHEEL IS EXCLUSIVELY COMPOSED IS SUBSTANTIAL SO AS TO HAVE TRIGGERED THE DUTY UNDER THE FEDERAL JURY SELECTION AND SERVICE ACT TO SUPPLEMENT THE LIST WITH NAMES OF BLACKS DRAWN FROM OTHER SOURCES.

Although the cases cited in defendants' memorandum involve constitutional challenges, this challenge is apparently based solely on the provisions of 28 U. S.C. § 1863(b)(2) which provide for other sources of names in addition to the voter lists "where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 . . ."

In the legislative history of the Act, contained in 1968 U.S.Code Cong. and Admin. News, page 1792 et seq., it is pointed out that the Act embodied two important principles—random selection of juror names from the voter lists of the district or division in which court is held, and determination of jury disqualification, excuses, exemptions and exclusions on basis of objective criteria only.

If the voter lists are used and supplemented where necessary and the procedures outlined in the Act are followed, then it is not required that at any stage beyond the initial source list the selection process shall produce groups that mirror community makeup, and no challenge lies on that basis. Moreover, from the history, it clearly appears that those qualified as jurors but who do not register to vote are not to be considered—it points out that such provision is not unfair, because anyone with minimum qualifications relevant to jury service can cause his name to be placed on the list simply by registering or voting. The history also points out that the voting lists, themselves, contain an important built-in screening element in that they eliminate those individuals who are either unqualified to vote or are insufficiently interested in the world about them to do so.

This history of the Act adds up to one conclusion—the Congress, in adopting this Act, did not intend to depart from, but instead intended to expressly state in the law what by court decisions have been determined to be constitutional— and that is, that a fair cross-section of the community could be obtained from a voter registration list in which there had not been, either by the law, itself, or by the actions of the state officials administering the law, systematic exclusion of cognizable classes. The conclusion is clear that unless such is established, then any jury list drawn from such a voter list could and would, under the intent of Congress, represent and be a fair cross-section of the community as Congress intended that phrase.

Indeed, such is evident from the Act, itself, for it, by its plain terms, provides qualifications for jurors that necessarily exclude large numbers of residents of a community, and contain provisions for exemption, disqualification and excuse of others. Members in active service of the fire and police departments, public officers, those residing beyond specified distances—clearly, exemption of these, alone, will mean the jury lists cannot and will not accurately mirror the community and that the Congress, in using the language "fair cross-section of the community," did not intend that meaning.

As the history points out, the principles that were embodied in it—the two important general principles previously mentioned—provide the best method for obtaining a jury list that represents a cross-section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness. The whole key to the jury selection act is found in those two principles—random selection and objectivity. If those are assured, then the fair cross-section principle of the Act is also assured. In this case, that there may be underrepresentation of various groups is completely meaningless—so long as there has not been shown systematic exclusion of some cognizable group in Florida's voting law or by the actions of those administering its law, there can be and is the objectivity that the Act of Congress intended and contemplated.

Of course, that objectivity could be destroyed by actions of the court officials who implement the Plan, and if it is shown that they have substantially departed from the Plan, then that objectivity would also be destroyed. But absent the foregoing, evidence of substantial underrepresentation in jury lists, standing alone, is not sufficient to establish substantial failure to comply with the Act.²

Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L.Ed.2d 567 (1970) and Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), cited by defendants, and other cases dealing with procedures allowing subjective determination, are inapposite here.

In view of the foregoing, the Court concludes that mere showing of substantial underrepresentation on the voter registration lists is insufficient to have triggered a duty to supplement the lists with names from other sources, or, as hereafter pointed out, on the facts presented here to raise a prima facie case of failure to meet the constitutional requirements.

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