United States v. Hoffa

• Decision Date: 12 July 1961
• Docket Number: Cr. No. 1241.
• Citation: 196 F. Supp. 25
• Parties: UNITED STATES of America, Plaintiff v. James R. HOFFA, Henry Lower, and Robert E. McCarthy, Jr., Defendants.
• Court: U.S. District Court — Southern District of Florida

196 F. Supp. 25

UNITED STATES of America, Plaintiff v. James R. HOFFA, Henry Lower, and Robert E. McCarthy, Jr., Defendants.

Cr. No. 1241.

United States District Court S. D. Florida, Orlando Division.

July 12, 1961.

Edward F. Boardman, U. S. Atty., Miami, Fla., James T. Dowd and Marie L. McCann, Sp. Attys., U. S. Department of Justice, Washington, D. C., for United States.

Julius F. Parker, Tallahassee, Fla., Fuller Warren, Miami, Fla., Charles E. Davis, Orlando, Fla., Jacob Kossman, Philadelphia, Pa., James E. Haggerty, Detroit, Mich., Daniel B. Maher, Washington, D. C., for defendant, James R. Hoffa.

O. B. Cline, Jr., Miami, Fla., for defendant, Henry Lower.

Robert E. Toohey, Detroit, Mich., for defendant, Robert E. McCarthy, Jr.

LIEB, District Judge.

This cause came on to be heard by the Court upon the various motions of the several defendants attacking the validity and sufficiency of the indictment returned against them by the Grand Jury which was convened in the Orlando Division of the Southern District of Florida.

The indictment is in twelve counts. Counts numbered 1, 2, 3, 5, 8, 9, 10 and 11 charged all of the defendants with use of the mails at various times in 1956 and 1957 in furtherance of a scheme to defraud labor associations chartered by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and members of such associations, and for obtaining money and property from those associations, their members, and other persons who would be induced to purchase parcels of land from Sun Valley, Inc., a Florida corporation, by means of false and fraudulent pretenses, representations and promises in violation of Sections 1341 and 1342, Title 18 U.S.Code.

Counts numbered 4, 6, 7 and 12 of the indictment charged all defendants with use of telephone and telegraph in furtherance of the same scheme in violation of Section 1343, Title 18 U.S.Code.

Defendant Hoffa was president of the said organization of Teamsters. The defendant Lower was an officer of Automobile Drivers and Demonstrators Local Union No. 376 of Detroit, Michigan, alleged in the indictment to be a labor association chartered by the Teamsters. Defendant McCarthy was manager of a branch of the Bank of the Commonwealth at Detroit, Michigan.

The motions filed by the defendants and heard by the Court were the following:

1. The several motions filed by each of the defendants to dismiss the indictment upon the ground that the grand jury was improperly selected.

2. The several motions filed by each of the defendants to dismiss the indictment for failure to state facts sufficient to constitute an offense against the United States.

3. The several motions of each of the defendants for a severance and separate trial from each of the other defendants.

4. The several motions of defendants Hoffa and McCarthy for a bill of particulars.

5. The motion of defendant Lower to strike portions of the indictment.

6. The motion of defendant McCarthy for an order transferring the case as to him to the Eastern District of Michigan.

7. The motion of defendant Hoffa to dismiss the indictment on the ground that the offense, if any, in Count 4 is triable only in the Miami Division of the Southern District of Florida or in the Eastern District of Michigan.

Evidence was taken for several days in open Court on said motions and briefs were filed by counsel for all parties. After consideration of the said evidence and briefs, it is the opinion of the Court that the several motions to dismiss the indictment upon the ground that the grand jury was improperly selected should be granted, thereby rendering moot all of the other said motions, and they will not be considered further in this order.

The attacks upon the legality of the grand jury which returned the indictment are based upon two main contentions:

First: It is contended that the jury commissioner who acted with the deputy clerk in selecting the jury panel from which the grand jury was drawn was not a well-known member of the principal party in the district opposing that to which the clerk or his deputy then belonged, in violation of Section 1864, Title 28 U.S.Code.

Second: It is contended that the jury commissioner and the deputy clerk, in selecting the names of persons to be placed by them in the jury box and from among which the grand jury was drawn, limited their selections exclusively to registered voters of the four counties of the division of the district, and in the case of women, further limited their selections of those who had registered to vote to those who also had volunteered for jury service, thereby not providing a panel which was a fair cross section of the community, as required by law.

The grand jury which returned the indictment in the case was impanelled on February 15, 1960, after their names were drawn from a jury box which then contained approximately 1,350 names, of which approximately 400 were old names which had been selected and placed therein prior to June 11, 1959, and approximately 950 were names which had been selected and placed therein on June 11, 1959, by the deputy clerk of Court, Mildred Durrance, and jury commissioner Alan K. Bixby. All of the names in the jury box were of persons eligible for jury duty and residents of the four counties comprising the Orlando Division of the Southern District of Florida, and every one of these persons was a qualified and registered voter under the laws of Florida.

The evidence shows without dispute that at all times pertinent thereto, Julian Blake was Clerk of the United States District Court for the District, and Mildred Durrance was his resident deputy at Orlando, Florida. During all of said period, both of them were registered members of the Democratic Party. Jury Commissioner Bixby was appointed to that office by one of the Judges of this Court on January 11, 1950, and has served as such commissioner continuously ever since without reappointment as there is no fixed term to said office.¹ At the time of his said appointment, Mr. Bixby was a registered member of the Republican Party and well known as such, being then Chairman of the Republican County Executive Committee for Orange County, Florida. He remained registered as a Republican until April, 1956, when he changed his political registration in Orange County to Democratic and remained registered in the office of the Supervisor of Registration of that county as a Democrat until January, 1961, at which time he changed his registration back to Republican and was registered as such at the time of the hearing on motions. During the period Mr. Bixby was registered to vote as a member of the Democratic Party, the 950 names were selected and added to the jury box by him and Mrs. Durrance, and from the box so filled the grand jury was drawn.

Section 1864 of Title 28 U.S.Code, which controls the selection of juries, provides in part as follows:

"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.

"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court.

"Such jury commissioner shall be a citizen of good standing, residing in the district and a well known member of the principal political party in the district, opposing that to which the clerk, or his deputy then acting, may belong. He shall receive $5 per day for each day necessarily employed in the performance of his duties."

At the time of his appointment, Mr. Bixby possessed all the required qualifications for the office of jury commissioner. The question is whether he was entitled to act in that office after he changed his party registration.

There is no evidence that any of the Judges of this Court, or any member of the clerk's staff, knew of Bixby's change of registration until it was pleaded in this cause after the indictment was returned.

The statute provides for the appointment of the jury commissioner as the act of the Court, and the provisions with regard to the qualifications of the commissioner obviously relate to the time of his appointment. It has been held generally, by the courts that have considered this question, that the provisions regarding the qualifications of the commissioner are only directory to the appointing court and not mandatory. See United States v. Chaires, C.C., 40 F. 820; United States v. Caplis, D.C., 257 F. 840; Brookman v. United States, 8 Cir., 8 F.2d 803.

As these cases point out, the statute relates to the qualifications of the jury commissioner at the time of his appointment by the Judge and not to all times after appointment. It could hardly be expected that the court would be able to maintain surveillance of the jury commissioner so as to know at all times after his appointment that he was a citizen in good standing and a well-known member of a political party or even to be aware of any change in his party affiliation or the party affiliations of the clerk or his deputy.

Since the said appointment was made in full compliance with law, this challenge to the validity of the indictment is without merit.

However, the motions to dismiss the indictment, because of the manner in which the names of the jury men and women were selected and the evidence supporting the motions, disclose that the jury was selected contrary to the mandatory requirements of law, and these motions must be granted.

Prior to September 9, 1957, the Federal Statute (Title 28, § 1861, U.S.C.A.) required that a juror in the United States District Court must be competent to serve as a grand or petit juror by the law of the state in which the District Court is held. The Civil Rights Act of 1957 amended this section so as to remove such requirement and to declare, as competent to serve as such juror, any citizen of the United States who has attained the age of twenty-one years and has...