United States v. Greenberg

• Decision Date: 14 December 1961
• Citation: 200 F. Supp. 382
• Parties: UNITED STATES of America v. Jacob H. GREENBERG and Morris Mac Schwebel, Defendants (two cases).
• Court: U.S. District Court — Southern District of New York

200 F. Supp. 382

UNITED STATES of America v. Jacob H. GREENBERG and Morris Mac Schwebel, Defendants (two cases).

United States District Court S. D. New York.

December 14, 1961.

Robert M. Morgenthau, U. S. Atty., New York City, for United States, Stephen E. Kaufman, Peter H. Morrison, Asst. U. S. Attys., New York City, of counsel.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant, Morris Mac Schwebel, Simon H. Rifkind, Martin Kleinbard, Arthur B. Frommer, Allan Blumstein, New York City, of counsel.

FREDERICK van PELT BRYAN, District Judge.

Defendant Schwebel moves under Rule 6(b), F.R.Cr.P., 18 U.S.C.A., to dismiss two indictments against him "on the grounds that the Grand Jury finding the indictments was not selected, drawn or summoned in accordance with law."

The indictments were returned on February 6, 1961 by a grand jury impaneled in December 1960. Indictment 61 Cr. 132 is in one count and charges Schwebel and a co-defendant Greenberg, who is not before the court, under 18 U.S.C. § 371 with conspiring to violate provisions of the Securities Act of 1933, 15 U.S.C.A. § 77a et seq., by the use of the mails and instrumentalities of interstate commerce in dealings in corporate securities of Basic Atomics, Inc. Indictment 61 Cr. 133 is in 62 counts. The first count charges Schwebel and Greenberg under 18 U.S.C. § 371 with conspiring to violate the same provisions of law in dealings in corporate securities of Soil Builders International Corporation. The other 61 counts charge specific violations of various provisions of the Securities Act in these dealings. A motion by Schwebel to dismiss five of these counts as time barred has been granted on consent of the Government.

The motions of defendant Schwebel directed to the selection of the grand jury returning these indictments focus on the methods used to obtain the names on the lists of qualified jurors on file in this court from which the grand jury was selected. He contends that these methods violate both statutory and constitutional requirements for selection and qualification of jurymen (28 U.S.C. § 1861, as amended by the Civil Rights Act of 1957, 71 Stat. 638; Constitution, Art. III; Amendments 6 and 7) and that therefore the grand jury drawn from such a list necessarily was illegally and improperly constituted.

After hearing argument on Schwebel's motions I directed the clerk of this court to have a statement prepared by the deputy clerk in charge of jurors and the jury commissioner, fully describing "the manner, method and procedures used for the selection, choosing and drawing of the names on the lists of persons on file in this court from which the members of the Grand Jury returning these indictments were selected." Such a statement was filed and copies furnished to counsel for the respective parties. Thereafter, at the request of counsel for Schwebel I directed the clerk to have a supplemental statement prepared and filed furnishing additional information on this subject. The supplemental statement has been filed. Thereafter counsel for both parties were advised that final submissions would be received not later than October 18, 1961. All submissions have been received and the motions are now before me for decision on the affidavits submitted by the respective parties and the two statements filed by the clerk. There has been no request to have testimony taken.

Procurement of qualified jurors in this district.

It is necessary in this court to maintain a large pool of qualified prospective jurors from which the very substantial number of talesmen required in the busiest district in the country may be summoned for service. The list of qualified petit and grand jurors on file contains about 20,000 names. The list constantly requires replenishment to replace prospective jurors who have died, have moved away or have become unavailable for jury duty for other reasons.

Before persons can be added to the pool of qualified jurors a preliminary examination is necessary to determine whether they meet the statutory qualifications for jury service and are able to serve. Qualification notices are continuously being sent out summoning persons for such preliminary examination.

The names of the persons to whom such qualification notices are mailed are obtained almost entirely from the lists of those registered to vote in presidential years in the counties of New York, Bronx and Westchester. These are the official lists of registered voters prepared every four years by the duly constituted Boards of Election in these counties.

In New York and Bronx Counties a list of registered voters is prepared by the Board for each assembly district. There are 16 assembly districts in New York County containing a total of 1,067 election districts, and 12 assembly districts in Bronx County with a total of 943 election districts. For each of the assembly districts the registered voters are listed by election districts. The names appear in parallel vertical columns on successive pages by street address.

To obtain the names to which jury qualification notices are to be sent a key number in the first column of one of the assembly district lists, counting down from the top or up from the bottom, is selected at random; for example, the fifth or tenth name from the top or bottom. Thereafter each fifth name in all the columns for the assembly district will be taken from column after column on page after page and jury qualification notices made out addressed to them. The same process is carried on through every assembly district list in rotation so that all of the assembly districts and all of the election districts are eventually covered. When all have been gone through another key number is selected at random and the same process is again repeated as often as is required to produce the number of names then needed. Thus the selection of prospective jurors for qualification is made, as part of a continuous process, with selections made at random from every part of the two counties.

In Westchester County the lists of those registered to vote in presidential years are prepared by wards for each city and town. The same method of selecting names of prospective jurors to whom qualification notices are sent is followed with respect to the Westchester County lists for the 12 cities and towns nearest the New York City limits comprising about 80% of the population of the County.

In 1960 the total number of registered voters in New York, Bronx and Westchester Counties was 1,758,142. In the years from 1950 through 1960, 187,024 qualification notices were sent out to persons selected in the manner described from the lists of registered voters in the three counties. The number of qualification notices sent out yearly to such persons ranged from a maximum of 27,950 in 1957 to a minimum of 8,575 in 1952.

In addition, qualification notices were sent out in some years during this period to persons whose names were obtained from telephone directories and real estate listings. These totaled 6,855, or some 3% of the notices sent out. Some qualification notices were also sent to persons whose names had been recommended for jury service as such names were received.

The notices to appear for jury qualification addressed to the persons selected by this method are placed on file in the office of the jury clerk until such time as additional names are required to be added to the list of qualified jurors. They are then mailed out to the prospective jurors. The notice requests the addressee to appear for preliminary examination on a day certain.

Those appearing who do not have a statutory exemption or disqualification, or a physical infirmity or other manifest hardship which would prevent them from serving, are required to complete a questionnaire which in all material respects conforms to the questionnaire suggested in the Report of the Judicial Conference Committee on the Operation of the Jury System, approved by the Judicial Conference of the United States, entitled, The Jury System in the Federal Courts, pp. 99-100 (1960). All those completing questionnaires who qualify are placed on the list of qualified jurors as either petit or grand jurors.

Wheel cards and history cards are made out for each person who has qualified. These cards are kept on file in the clerk's office. The wheel cards are arranged according to dates of service and time for placing in the wheel.

The grand jury wheel from which a panel of prospective grand jurors is drawn ordinarily contains between 500 and 800 wheel cards. The names in the wheel comprise qualified jurors (a) taken from the list of those whose last service was more than two years ago, (b) who were called for service and excused three months before, (c) who have been marked for service in the particular month by a judge hearing excuses, and (d) who qualified for service in the preceding month. From this wheel a panel of 75 names is drawn to be placed in the wheel from which the grand jury is ultimately selected.

The panel from which the grand jury returning these indictments was drawn was selected from the wheel on September 30, 1960. The wheel from which the panel was drawn contained 490 cards remaining from the previous drawing. The jury clerk and the jury commissioner each alternately added 25 cards selected from the list, making a total of 540 cards in the wheel. When a panel of 75 had been drawn notices were sent to the talesmen on the panel to appear for the drawing of the grand jury on December 6, 1960. On that day the 75 names on the panel were placed in the wheel and the 23 names were drawn from the wheel and sworn in to comprise the grand jury which returned these indictments.

The jury clerk and the jury commissioner both state unequivocally that at no time has there ever been any attempt to exclude from petit or grand jury service any qualified individual, class or group.

Defendant's challenge to the method of procuring...