United States v. Cronn, CR 3-82-071.
| Decision Date | 04 August 1982 |
| Docket Number | No. CR 3-82-071.,CR 3-82-071. |
| Citation | 559 F. Supp. 124 |
| Parties | UNITED STATES of America v. Donald Lorrin CRONN. |
| Court | U.S. District Court — Northern District of Texas |
Micheal P. Heiskell, Asst. U.S. Atty., Dallas, Tex., for plaintiff.
Arch McColl, III, Dallas, Tex., for defendant.
This case is presently before the Court on Defendant's motion to make available to the Defendant and his counsel the records of grand jury selection. Defendant wants to adduce evidence to support his motion to dismiss the indictment based on discriminatory selection of grand jury foremen. Defendant relies solely on the Fifth Amendment. If Defendant has a right to a dismissal of the indictment on the basis of discriminatory selection of grand jury foremen, it follows that he has a right to have access to the records of grand jury selection. Therefore, the issue before the Court is whether Defendant would be entitled to a dismissal of the indictment, assuming an appropriate showing of discrimination in the selection of grand jury foremen and further assuming the government fails to rebut such showing.
Defendant is a white male. He alleges that during the period from 1970 through 1982, members of constitutionally recognizable minority groups have been unconstitutionally precluded from service as grand jury foremen. The Fifth Circuit has never directly been faced with the issue of whether a non-minority has standing to assert an equal protection claim based on the under-representation of minorities on a grand jury. Two district courts have denied standing in this situation based on the following language from Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), quoted in Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 3004, 61 L.Ed.2d 739 (1979): "Thus, in order to show that an equal protection violation has occurred in the context of grand jury selections, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." (emphasis added). However, this Court finds the reasoning in U.S. v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982) and U.S. v. Breland, 522 F.Supp. 468 (N.D.Ga. 1981) more persuasive on this point. These opinions rely on Peter v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) wherein the Supreme Court concluded the following:
In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.
As pointed out by the 11th Cir. in Perez-Hernandez, supra, at 1386 "the holding in Peters v. Kiff is clear and unambiguous and has never been expressly overruled." Although the Castaneda and Rose opinions are more recent, in each case the defendant was in fact a member of a minority group. Thus, the issue of whether a non-minority in fact has standing to assert underrepresentation of minorities has not been directly reassessed by the Supreme Court. Under the Supreme Court authority outlined above, I believe that a non-minority has standing to assert a challenge to the minority representation on a grand jury. However, because I conclude in Part II of this memorandum opinion that the duties of the grand jury foreman are ministerial and not of constitutional significance, it is not necessary to this ruling to determine standing.
The issue of whether a federal defendant has a right to challenge the selection of the grand jury foreman has never been squarely faced by the Supreme Court. This issue has been addressed by only one Circuit Court. United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982). The Eleventh Circuit Court held that the defendant does have a right to nondiscriminatory selection of federal grand jury foremen under the 5th Amendment. This result was reached through analogy to 14th Amendment cases which have held that a state defendant has a right to challenge a discriminatory selection of foremen which is co-equal to the right to challenge discriminatory selection of the grand jury members. Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981) per curiam.
The Supreme Court assumed in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) that a conviction must be set aside for discrimination in the selection of grand jury foremen in the context of a 14th Amendment challenge to the selection process used in Tennessee. In Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981), the Fifth Circuit accepted this assumption. However, Rose and Guice are not controlling under the facts of this case.
Both Rose and Guice involved challenges to state selection procedures for grand jury foremen. In the Rose case the foreman was chosen by the judge from the entire population. The foreman was then added to the randomly chosen grand jury as a thirteenth member. In Guice the foreman was selected from the 40 member venire and then the remaining 11 members of the grand jury was selected randomly from the remaining 39 veniremen. Thus, each case presents a situation where discrimination in selection of the foreman may result in a discriminatorily selected grand jury as a whole. This is not...
To continue reading
Request your trial
-
United States v. Daly
...will follow the very recent precedent in this District established by the decision of the Honorable Robert W. Porter in United States v. Cronn, 559 F.Supp. 124 (No. CR 3-82-071, filed August 4, 1982). Of course, that decision rejected the reasoning of the Eleventh Circuit's decision in Unit......
-
U.S. v. Cronn
...contention is made that the grand jury itself, from which the court selected a foreman, was improperly constituted. The district court, 559 F.Supp. 124, denied Cronn's motion for access to grand jury selection records, thus aborting his attempt to establish underrepresentation. Although the......