United States v. Facchiano, 79-231-Cr-JCP.

• Decision Date: 15 November 1980
• Docket Number: No. 79-231-Cr-JCP.,79-231-Cr-JCP.
• Citation: 500 F. Supp. 896
• Parties: UNITED STATES of America v. Albert Joseph FACCHIANO, Thomas Miglionico, Angelo Pepe, Francis C. Santo, Paul Santo, Defendants.
• Court: U.S. District Court — Southern District of Florida

500 F. Supp. 896

UNITED STATES of America v. Albert Joseph FACCHIANO, Thomas Miglionico, Angelo Pepe, Francis C. Santo, Paul Santo, Defendants.

No. 79-231-Cr-JCP.

United States District Court, S. D. Florida.

November 15, 1980.

Roma W. Theus, II, Dept. of Justice, Miami Strike Force, Miami, Fla., for plaintiff.

Joseph Beeler, Miami, Fla., for Facchiano.

Federico Moreno, Federal Public Defender, Miami, Fla., for Miglionico.

Edward J. O'Donnell, Jr., Miami, Fla., for F. Santo.

Donald F. Spain, Miami, Fla., for P. Santo.

Joseph Mincberg, Miami, Fla., for Pepe.

OPINION AND ORDER

PAINE, District Judge.

Pursuant to 28 U.S.C. § 1867 the defendant Facchiano has moved to stay the proceedings in this cause by alleging a substantial failure to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 (hereinafter the Act). Encompassed within the motion is the allegation of the abridgement of Sixth Amendment rights. This case is being tried in Fort Lauderdale and the jury master wheel is culled from the Broward County voter registration list. As an alternative, defendant prays that the trial be transferred to Miami where it is alleged that juror selection is closer to substantial compliance. The motion has been adopted by all defendants.

Basically defendant complains that there is a significant underrepresentation of blacks on the Broward division master wheel when compared with the percentage of blacks aged 18-69 in the county's general population. Support for this allegation comes mainly from a statistical analysis which highlights the extent of this disparity. It is defendant's position that those statistics have established a prima facie case and it is the government's burden to justify the disparity.

I. The Elements of a Prima Facie Case

In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury-selection process.

With regard to systematic exclusion the cases have tended to fall into three categories. The first of these is the rule of exclusion cases where evidence of total exclusion of a cognizable group is prima facie proof of systematic exclusion. E. g., Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The second category includes cases of substantial underrepresentation where the juror selection system contains opportunities for subjective acts of discrimination. E. g., Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The burden of proof shifts in these cases upon a showing of substantial exclusion in a system that allows for discrimination. A good faith explanation by juror selection officials can rebut the prima facie case.

The third category is a statistical showing of underrepresentation in an apparently objectively organized selection process. As in this case the typical cause of underrepresentation seems to stem from a failure to register to vote. With regard to cognizability or distinctiveness, there is no doubt that the group consisting of all blacks aged 18-69 comprise a distinctive group within Broward County. Although a significant statistical underrepresentation of blacks was shown, this is held not to be a substantial deviation of a fair cross section for purposes of requiring relief. As will be discussed later, in order to reach this conclusion it is necessary to reconcile the judicial presumption that the use of a voter registration list for the sole juror source list passes Constitutional muster with the Act's provision for supplementation.

II. The Statistical Evidence of Underrepresentation

The data utilized for compiling statistical evidence of underrepresentation came from primarily two sources. 1970 Census data was used to determine the number of whites and blacks aged 18-69 in the County's population. It is judicially noticed that within this population are a number of individuals who are not qualified to be jurors, but it is assumed that this is only a small number having a negligible effect on the data. The other main source of data were the JS-12's prepared for the Clerk of the United States District Court for the Southern District of Florida.

The JS-12 is a form that is submitted pursuant to 28 U.S.C. § 1863(a). It reflects information acquired from random samples taken from the master wheel and the qualified jury wheel. According to the JS-12 submitted on February 9, 1978 the Fort Lauderdale division master wheel was filled on August 18, 1977 with 62,832 names from the Broward County voter registration list. On November 1, 1977, 2027 names were drawn at random from the master wheel to whom questionnaires were mailed. From the 1589 completed and returned questionnaires it was determined that 1530 people within the sample were white and 59 were non-white. The same kind of information was obtained from a sample taken from the qualified jury wheel on January 31, 1978. Although the defendant also introduced into evidence JS-12's for the West Palm Beach, Key West, Miami and Fort Pierce divisions, this challenge is only focused on the Fort Lauderdale division. Additionally, the defendant introduced JS-12's that were prepared in February 1974 and in August 1971. These forms reflect data obtained from sampling past master wheels.

By statute, 28 U.S.C. § 1863(b)(4), and the Southern District of Florida Plan for the Random Selection of Grand and Petit Jurors (hereafter the plan) the master wheel is to be emptied and refilled by September 1 of the year following each Presidential election. Of the three master wheels the greatest percentage of underrepresentation of blacks occurred in the last master wheel sample taken in November of 1977. The Court assumes for purposes of this opinion that the data is the same for all three master wheels. Furthermore, the disparity is slightly greater in the master wheel sample than in the qualified wheel sample. The defendant's statistical expert witness, James O'Reilley, testified that by using widely recognized statistical tests, e. g., standard deviation analysis, that there was only an unmeasurably small probability that the disparity between the number of blacks in the population and the number in the master wheel could be explained by chance or sampling error. The Court finds that the disparity is indeed statistically significant and there is no basis to question the accuracy of the data. Furthermore, the difference between the data produced by the master wheel and the qualified wheel is negligible and can be ignored.

The following chart capsulizes the data and includes three statistical comparisons.

                                             Fort Lauderdale  Goff6
                                                Division
                % of eligible population
                which is black1             11.3%
                % of sample from master
                wheel which is black2        3.7%
                Absolute disparity3          7.6%         6.17%
                Comparative disparity4     -67.3%        59.%
                Impact on Petit Jury
                of 125                       0.9          0.7
                

III. The Relevant Statistic

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) the Supreme Court held that purposeful discrimination is not shown by demonstrating the underrepresentation of an identifiable group by as much as 10%. Although Swain was an equal protection case, many Courts have adopted the proposition that an absolute disparity of not more than 10% does not establish the prima facie elements of unfair representation or systematic exclusion. United States v. Butler, 611 F.2d 1066 (5th Cir. 1980) reh. denied 615 F.2d 685 (5th Cir. 1980). The Fifth Circuit has shown a distinct preference for making absolute disparity the primary measure of underrepresentation. United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980) and Butler, supra.

The defendants argue that where the percentage of the group's eligible population hovers around the 10% cut-off, reliance on the absolute disparity test could result in the group's total exclusion without recourse. They point out that both Maskeny and Butler reh. denied have left the door open for the use of other comparisons where it is deemed appropriate. Of course in this case, blacks have not been totally excluded but in that situation the inferences of the rule of exclusion cases would be applicable and the burden would shift to the government. The defendants contend that comparative disparity is a better indication of underrepresentation in this case. While there is no doubt that the comparative disparity,-67.3, indicates a statistically significant underrepresentation, it is necessary to realize that where the eligible population is relatively low this statistic will magnify the disparity.⁷ It is held along with the preponderance of authority that an absolute disparity of 7.6% does not meet the elements of a prima facie case.

IV. Voter Registration Lists-The Presumption of Constitutionality

The Act requires that district courts utilize voter registration lists or lists of actual voters for selecting prospective jurors. If Broward County blacks are underrepresented for any reason the most likely one is that a large percentage have failed to register. While 28 U.S.C. § 1863(b)(2) provides for supplementation of the voter list, neither the defendant nor this Court have found a case where supplementation has been required merely to rectify the results of lower proportionate registration. In fact, the cases are rampant in holding the opposite. The Fifth Circuit said in United States v. Arlt, 567 F.2d 1295 (5th Cir. 1978):

The use of voter registration lists

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