United States v. Greene

• Decision Date: 04 October 1973
• Docket Number: No. 72-1130,72-1272.,72-1130
• Citation: 489 F.2d 1145
• Parties: UNITED STATES of America v. LaVance GREENE, Appellant. UNITED STATES of America v. Randolph GREENE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

489 F.2d 1145 (1973)

UNITED STATES of America v. LaVance GREENE, Appellant.

UNITED STATES of America v. Randolph GREENE, Appellant.

Nos. 72-1130, 72-1272.

United States Court of Appeals, District of Columbia Circuit.

Argued January 30, 1973.

Decided October 4, 1973.

Rehearing February 1, 1974.

COPYRIGHT MATERIAL OMITTED

Joseph Forer, Washington, D.C. (appointed by this Court), for appellants.

Robert Alan Jones, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John Terry and William H. Collins, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before LEVENTHAL and ROBB, Circuit Judges, and OLIVER GASCH,^* United States District Judge for the District of Columbia.

Rehearing En Banc Denied in No. 72-1130 February 1, 1974.

GASCH, District Judge:

Appellant Randolph Greene, while serving a sentence of 20 years for armed bank robbery, was, at his mother's request, permitted to attend the funeral of his father on September 24, 1971. He was accompanied to the funeral by four armed deputy marshals. His half-brother, LaVance Greene, during the course of the funeral service in a crowded church, disarmed the deputy marshals, released his brother from custody, shot to death one of the deputy marshals, took their guns, commandeered at gunpoint a passing automobile, and attempted to escape with his half-brother Randolph. A passing police car gave chase and after a high speed pursuit, with the assistance of two motorcycle officers, several miles later, effected the arrest of the two appellants. Charges of felony murder, premeditated murder of Federal officer, four counts of armed robbery, rescue of a prisoner, as well as escape from custody were brought against the two brothers. Randolph Greene was convicted only of escape. LaVance Greene was convicted by jury verdict of the other charges.

Numerous points are raised by appointed counsel, three of which were emphasized at oral argument. Counsel challenged the jury selection system then in force and effect in this district. He challenged the legality of the felony murder conviction in that the felony LaVance Greene is charged with committing at the time of the shooting of the deputy marshal was a Federal felony which, counsel says, cannot be joined with the local (Title 22, D.C. Code) felony murder statute. He challenges the burden placed on LaVance Greene regarding the insanity instructions. We affirm the judgments on Count 3 (felony murder), Counts 7, 9, 11, and 13 (armed robbery, as to LaVance Greene), and Count 6 as to Randolph Greene. We vacate the remaining judgments of conviction as to LaVance Greene.

I.

CHALLENGE TO THE JURY SELECTION SYSTEM

With respect to appellant's first challenge, namely, the jury selection system, the record reflects that the trial judge, on two occasions, extended the time within which pretrial motions could be filed. No request was made by defense counsel to file a motion to dismiss the indictment because of the jury selection system until January 17, 1972, the day of trial. This challenge is untimely. Appellate counsel was uninformed as to when trial counsel for the defense first learned of any problem with respect to the jury selection in the instant case. Counsel filing this motion and swearing to the required affidavit was Miss Sarah E. Brown of the Public Defender Service. The records of the trial Court, of which this Court may take notice, indicate that a similar motion raising the same points was filed in United States v. Johnson, Criminal Case No. 1690-71. Counsel pressing these similar motions in the Johnson case were Mr. Robert Weinberg and Mr. Matthew Zwerling, also of the Public Defender Service. The date on which these similar motions were filed and documented with comparable material was October 28, 1971. It is clear that the basis for the motion filed before the trial judge in the instant case was known to Miss Brown's office as early as the 28th of October, 1971.

Section 1867(a) of the Jury Selection and Service Act of 1968, Pub.L. 274 of the 90th Congress, 28 U.S.C. § 1861 et seq., provides as follows:

(a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (Emphasis supplied.)

It is reasonable to conclude that the basis for filing these motions was well known to the lawyers who comprise that Service. Failure to file this motion reciting similar grounds as the motion filed in the Johnson¹ case until the day of trial stamps the filing as untimely.

Counsel acknowledges that only six of a possible 20 peremptory challenges were made by defense counsel in the process of selecting a petit jury. He conceded he was uninformed as to the composition of the petit jury, that is to say, what their ages were, or what their economic status was. He persists, however, in saying that the jury selection system does not fairly select young people and poor people.

The Jury Selection and Service Act of 1968, Pub.L. 90-274, March 27, 1968, requires that litigants shall have the right to trial by jury, both grand and petit, selected at random from a fair cross-section of the community in the district wherein the court convenes. (Section 1861). Section 1862 prohibits exclusion from service of any citizen on the ground of race, color, religion, sex, national origin, or economic status. Section 1863 provides that a plan be devised by the District Court and approved by the Judicial Council of the Circuit and the Chief Judge of the District Court. In conformity with the authorization contained in paragraph (b)(2), the plan for this District utilized the City Directory rather than the voter list. No challenge was made that jurors selected for the grand jury and the petit jury panel were not randomly selected from the City Directory in accordance with the Circuit approved plan.

The motion, filed on the day of trial, contains certain conclusory statements without any adequate underlying factual data. Counsel contends that the poor and the young are excluded from the jury selection plan. The record discloses no evidence of exclusion on account of race, color, religion, sex, national origin, or economic status (§ 1862). What appellants contend, as we understand their argument, is that since certain rolls of the Manpower Commission and the Bail Agency applicant list reflect a substantial percentage of persons not listed in the City Directory that the selection process must be deficient.

As a matter of decision law, there are a number of objections to the thesis propounded by appellants. First, while it is clear that the intention of the Jury Selection Act is to obtain a jury that is fairly representative of a cross-section of the community (see Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946)), it is also clear that there is no constitutional requirement that the jury pool be a statistical mirror of the community. Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). The fact, if it is a fact, that there are fewer young people on the jury than the exact proportions of young persons in the community does not of itself make a jury nonrepresentative. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

It bears emphasis that there is no claim in the case before us of a purposeful exclusion of young persons, but only a claim that the system of jury selection results in an under-representation.

The Jury Selection Act itself does not refer to young people as a class. Serious question arises as to whether young people are an identifiable class. No criteria are set forth in the Act on the basis of which the class is described. Young people are characterized by as many variables, varying philosophies, education, earning capacities, as old people, or middle aged people, or any other group concerning which known and admitted variables exist. With the exception of United States v. Butera,² 420 F.2d 564 (1st Cir.1970), all Federal courts, both at the trial level and at the circuit level, have held that the category of "young persons" is not a cognizable class that must be systematically mirrored in jury selection procedures. See United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.1972). The Court said at page 146:

The mere fact of similarity in age cannot, by itself, be sufficient to define a cognizable group. If it were, any jury selection system could be successfully attacked by a strategic drawing of age group lines.

* * * * * *

In accordance with the long line of cases cited above, this court cannot accept the proposition that members of arbitrarily drawn age brackets necessarily constitute valid categories for measuring the legality of a jury selection system.

To the same effect, see United States v. Gargan, 314 F.Supp. 414 (W.D. Wis. 1970). The Gargan case was affirmed by the Seventh Circuit sub nom. United States v. Gast, 457 F.2d 141 (7th Cir.1972). Judge Frank Kaufman's decision in United States v. Cohen, 275 F.Supp. 724 (D. Md. 1967), was affirmed by the Fourth Circuit sub nom. United States v. DiTommaso, 405 F.2d 385 (4th Cir.1968). In affirming, the Fourth Circuit said:

As to age as a measure of representation, we do not believe that members of arbitrarily drawn age brackets necessarily constitute valid categories for measuring the legality of jury selection.

405 F.2d at 391.

To the same effect, see United States v. Kuhn, 441 F.2d 179, 181 (5th Cir.1971). It is interesting to note that Judge Coffin, who wrote the opinion of the First Circuit in Butera, supra, in a subsequent case, United States v. Camara, 451 F.2d 1122 (1971), rejected out of hand a contention that persons under 25 were underrepresented...