United States v. Butera, 7387.

Citation420 F.2d 564
Decision Date21 January 1970
Docket NumberNo. 7387.,7387.
PartiesUNITED STATES of America, Appellee, v. Benjamin J. BUTERA, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)


Gene Carter, Bangor, with whom Gerald E. Rudman, Lawrence E. Merrill and Rudman, Rudman & Carter, Bangor, Me., were on brief, for appellant.

Edward G. Hudon, Asst. U. S. Atty., with whom Peter Mills, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Benjamin J. Butera was indicted for attempted income tax evasion by the federal grand jury for the Southern Division of Maine in March 1968. On April 8, he filed with the district court a motion to dismiss the indictment on the ground that it had been returned by a grand jury drawn from an improperly constituted jury pool. A hearing was had and evidence heard, and defendant's motion was denied. Sub. nom. United States v. Bryant, 291 F.Supp. 542 (D. Me.1968).1 Defendant was subsequently found guilty of the offense charged. He brings this appeal to contest the denial of his motion to dismiss the indictment.

Defendant contends that the grand jury which returned his indictment was improperly constituted because certain segments of the population of southern Maine were inadequately represented on the jury pool from which his grand jury was drawn. More specifically, he claims underrepresentation of (1) the young and the very old, (2) women, (3) the less educated, and (4) people of certain Maine counties. He concedes that proportional representation is not required; he also concedes that the disparities did not arise from any purposeful or deliberate discrimination in the sense that the jury pool selection system was administered with a lack of good faith. He claims simply that the system used in Maine resulted in unconstitutional discrimination against members of what he claims are legally cognizable groups.2

The Constitutional Mandate

This contention necessitates a determination of what the Constitution requires concerning the selection of juries. The Supreme Court has consistently required that jury selection systems draw their jurors from a fair cross section of the community.3 It has been suggested that such non-discriminatory jury selection is an essential aspect of our democratic form of government.4 However, the Court has long recognized that fair and reasonable qualifications for jury service eligibility can be imposed even though they detract from a cross section in the actual jury pools.5 Moreover, the Court has recognized that it is neither possible nor necessary — in order to assure an impartial jury — that there be a fair cross section of the community on each individual grand and petit jury.6 In particular, Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed. 2d 118 (1961), demonstrates the Court's conviction that an impartial jury can be assured even though members of one's class are not present either on the jury or in the jury pool. In that case, despite the fact that the defendant — who had killed her husband with a baseball bat — was tried by an all-male jury drawn from a virtually all-male jury pool, the Court upheld the conviction because there had been no impermissible discrimination against women in the operation of the jury system.

We conclude from these cases that the Supreme Court has focused on whether the alleged underrepresentation in the jury pool is the result of discrimination in the juror selection system. Concededly, most of the jury exclusion cases have involved alleged state discrimination and thus the application of the Fourteenth Amendment's assurance of equal protection. Here we deal with a federal jury and can exercise our supervisory power in addition to the Constitutional requirements.7 However, even in exercising this supervisory power, the Supreme Court has focused on discriminatory selection practices. Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261 (1947); Thiel v. Southern Pacific Co., 328 U.S. at 220, 225, 66 S. Ct. 984. We therefore understand the Constitutional mandate to be for a jury selection system free of discrimination.

In carrying out this mandate, the Supreme Court has normally imposed on the defendant the initial burden of demonstrating, prima facie, the existence of purposeful discrimination.8 However, the exact meaning of "purposeful discrimination" has been elusive at best. Such discrimination has been found when the jury commissioners limited their selections to acquaintances or certain lists of persons which necessarily resulted in discrimination against a class of persons not falling within either category.9 It has been found when Negroes were underrepresented and the list or method used indicated each prospective juror's race, thereby providing the opportunity for discrimination.10 Sometimes it has been found when complete exclusion or significant disparities existed which could not be adequately explained or justified by the responsible officials.11 At other times it has been found when jury commissioners, albeit completely well-intended, deliberately excluded certain groups.12

Thus, while "purposeful discrimination" may connote an element of bad faith in ordinary usage, the term has not been so limited by the Supreme Court; rather, the breadth with which the term has been used by the Court indicates that purposeful discrimination exists whenever significant unexplained disparities exist. In other words, it is not the significant disparities themselves which are unconstitutional, Akins v. Texas, 325 U.S. at 403-404, 65 S.Ct. 1276; Hoyt v. Florida, 368 U.S. at 69, 82 S.Ct. 159; they only raise the inference of discrimination. E. g., Billingsley v. Clayton, 359 F.2d 13, 17 (5th Cir. 1966), (en banc), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Witcher v. Peyton, 382 F.2d 707, 709-710 (4th Cir. 1968); Salary v. Wilson, 415 F.2d 467, 470-471 (5th Cir. 1969). Once that inference has been raised, it is the government's failure or inability to demonstrate that the disparities are not the product of discrimination which confirms the inference and invalidates the jury pool. E. g., Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969). Finally, our reading of the cases indicates that underrepresentation of the more sociologically distinct groups in our country necessitates a more compelling demonstration by the government to overcome the inference of discrimination. Compare Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159 (1961) with Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

Defendant's Prima Facie Case

Defendant has the burden of showing, prima facie, discriminatory selection practices. Whitus v. Georgia, 385 U.S. at 550-551, 87 S.Ct. 646, 647. Equally important, he has to show such discrimination against "distinct" groups in the general population. Hernandez v. Texas, 347 U.S. at 478-480, 74 S.Ct. 667. We think he has disclosed sufficient disparities, in three cognizable groups, to raise a reasonable inference of discrimination which the government should come forth to dispel.

Defendant's first claim relates to age; he insists that the young and very old were not adequately represented on the jury pool. Obviously there are some significant disparities in the age groups as defendant has classified them.13 Equally obvious, we think, is the problem of deciding what age groups are cognizable for purposes of defendant's prima facie case. See King v. United States, 346 F.2d 123, 124 (1st Cir. 1965). We do not believe that that question can be given a definitive answer which will be satisfactory for all cases; rather, we think that age groupings must be viewed from several perspectives in order to give a fair view of the significance of any disparity.

We take defendant's breakdown of age groups as one acceptable perspective. More importantly, we note that there were only 148 persons under age 40 when defendant's "true cross section", see n. 13, indicated 335, and that there were only 20 persons under age 30 when the "true cross section" indicated 147. Below age 35, defendant's three age groupings show minimal representation of the jury pool; above age 35, the representation appears satisfactory and raises no inference of discrimination.14 These observations, when taken together, indicate to us a sufficient disparity to infer — in the absence of some explanation and justification — some discrimination against young adults. Moreover, the government has not directed our attention to any jury qualification or exemption which would on its face adequately explain this underrepresentation of young adults.15

Finally, we are satisfied that young adults constitute a cognizable — though admittedly ill-defined — group for purposes of defendant's prima facie case. We cannot allow the requirement of a "distinct" group to be applied so stringently with regard to age grouping that possible discrimination against a large class of persons — in our case, those between 21 and 34 — will be insulated from attack. Nor can we close our eyes to the contemporary national pre-occupation with a "generation gap," which creates the impression that the attitudes of young adults are in some sense distinct from those of older adults. That apparent distinctness is sufficient for us to say that neither class could be excluded from jury pools without some justification. Accordingly, we find the "significant disparity" with regard to age which raises the inference of discrimination and shifts the burden of explanation to the government.

Defendant's second claim relates to an alleged discrimination according to sex; his figures indicate that the actual jury pool was only 36 per cent female when the "true cross section" was about 52 per cent female. While this class poses no problem of definite identification, the disparity is not so great as it was with regard to age. However, a...

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