United States v. Jenison

• Decision Date: 18 December 1979
• Docket Number: No. 78-296-Cr-JWH.,78-296-Cr-JWH.
• Citation: United States v. Jenison, 485 F.Supp. 655 (S.D. Fla. 1979)
• Parties: UNITED STATES of America, Plaintiff, v. Joel JENISON, Defendant.
• Court: U.S. District Court — Southern District of Florida

485 F. Supp. 655

UNITED STATES of America, Plaintiff, v. Joel JENISON, Defendant.

No. 78-296-Cr-JWH.

United States District Court, S. D. Florida.

December 18, 1979.

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Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff.

L. Van Stillman, Ft. Lauderdale, Fla., William M. Moran, James J. Hogan, Miami, Fla., Bruce M. Lyons, Ft. Lauderdale, Fla., Joseph Beeler, Miami, Fla., for defendants.

MEMORANDUM OPINION

HATCHETT, Circuit Judge, Sitting by Designation.

INTRODUCTION

In a four count indictment filed on August 31, 1978, defendants were charged with importation and possession with intent to distribute, and conspiracy to import and possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 952(a), 841(a)(1), 846, and 18 U.S.C. § 2. By cumulative motions to dismiss the indictment pursuant to 28 U.S.C. § 1867(d), defendants allege that grand jury selection procedures of the Southern District of Florida are unconstitutional and in violation of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1875. Evidence was received and affidavits and memoranda were submitted by the parties. Finding neither constitutional infirmity nor substantial non-compliance with the Act, I deny the motion to dismiss.

STANDING

The claims presented here arise from provisions of the United States Constitution and the Jury Selection and Service Act. Standing to assert these claims lies regardless of the race or class of the defendants. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Furthermore, the challenges may be made even though the particular jury drawn from the questioned pool is unobjectionable. Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966). Finally, the movants need not demonstrate that they have been prejudiced by the objectionable action in order to secure a decision in their favor. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955).

ISSUES

In the twelve months since the original motion to dismiss, the defendants have expanded their claims through amended and supplemental motions to include numerous challenges to the selection procedures of this district. These claims may be summarized as follows:

I. Underrepresentation of and discrimination against cognizable classes in the composition of the grand juries for the Southern District.

A. Systematic exclusion of women, blacks, and Latins from selection as grand jury forepersons. Fifth amendment and sixth amendment, U.S.Constitution; 28 U.S.C. §§ 1861, 1862.

B. Improper use of voter registration lists as the sole source from which the names of prospective jurors are selected. 28 U.S.C. § 1863(b)(2).

II. Impermissible interjection of deputy clerks and prosecutors into the selection process for grand jury forepersons. Rule 6(c), Fed.R.Cr.P.

III. Substantial deviation from the provisions of the Jury Selection and Service Act and the local plan resulting from the following activities and procedures employed by personnel in the jury section of the Clerk's Office for the Southern District of Florida.

A. Usurpation of judicial functions in the determination of excuses, exemptions, deferrals, and disqualifications. 28 U.S.C. § 1865.

B. Failure to require return of completed juror forms. 28 U.S.C. § 1864(a).

C. Granting of preferential treatment to certain groups and individuals.

D. The incident referred to as "palming" allegedly engaged in by jury section chief, William Ross Hornsby.

DISCUSSION OF ISSUES

I. Grand Jury Composition.

A. Systematic exclusion of identifiable groups from selection as grand jury forepersons.

1. Sixth Amendment Protection.

Criminal defendants are afforded the protection of a "speedy and public trial, by an impartial jury" under the sixth amendment to the United States Constitution. The requirement of an impartial grand jury has been interpreted to mean a jury composed of members drawn from a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). This "fair cross-section" requirement is codified in the policy declaration of the Jury Selection and Service Act, 28 U.S.C. § 1861.

Because in sixth amendment challenges the "focus is on the issue of a fair cross section and not on the issue of discrimination," a defendant is not required to show bad faith and a prima facie showing of systematic exclusion may not be rebutted by proof of non-discriminatory intent. United States v. Armsbury, 408 F.Supp. 1130, 1140 (D.Or.1976); Duren v. Missouri; Rabinowitz v. United States. When jury selection procedures come under sixth amendment scrutiny, "systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section." Duren v. Missouri, 439 U.S. at 368 n.26, 99 S.Ct. at 670 n.26. It is irrelevant that the discrimination, if any, was unintentional. United States v. McDaniels, 370 F.Supp. 298 (E.D.La.1973). Once a prima facie case of systematic disproportion has been made under a fair cross-section challenge, it can only be rebutted by showing that a significant state interest is manifestly advanced by those aspects of the selection process that result in the exclusion. Duren v. Missouri, 439 U.S. at 368, 99 S.Ct. 664.

2. Federal Equal-Protection.

Federal law also proscribes the discriminatory exclusion of cognizable classes from jury service. 28 U.S.C. § 1862. While the constitutional right to equal protection in jury selection cases is often said to rest on the fourteenth amendment prohibition against state discrimination, the right also extends to federal defendants challenging the composition of their grand or petit juries. Fifth amendment, U.S. Constitution; United States v. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975). As recognized by the Supreme Court, "although it contains no Equal Protection Clause as does the Fourteenth Amendment, the Fifth Amendment's Due Process Clause prohibits the Federal Government from engaging in discrimination that is `so unjustifiable as to be violative of due process.'" Schlesinger v. Ballard, 419 U.S. 498, 500, n.3, 95 S.Ct. 572, 574 n.3, 42 L.Ed.2d 610 (1975); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964). This means that, "if a classification is invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also invalid under the Due Process Clause of the Fifth Amendment." United States v. Gordon-Nikkar, at 976. See, Johnson v. Robinson, 415 U.S. 361, 363, n.4, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). The "federal action" right invokes the same judicial scrutiny and analysis as employed in the review of state action challenges under the fourteenth amendment. Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); United States v. Gordon-Nikkar. Because discriminatory purpose is an essential element of this constitutional violation, truth of non-discriminatory intent is sufficient to rebut a prima facie showing of systematic exclusion. Duren v. Missouri, Castaneda v. Partida.

3. Constitutional Protections and the Grand Jury Foreperson.

The government contends that no constitutional rights are implicated by systematic discrimination in the appointment of federal grand jury forepersons. Hale v. Henderson, 485 F.2d 266 (6th Cir. 1973). It is contended that where the grand jury venire was selected in a manner that did not systematically exclude any cognizable classes, disproportionate representation of identifiable groups in the office of federal grand jury foreperson is irrelevant. According to the government, the Supreme Court in Rose v. Mitchell did not hold otherwise. As the government emphasizes, the Supreme Court merely assumed, without deciding, that "discrimination with regard to the selection of only the foreman" would require the same result "as if the discrimination proved had tainted the selection of the entire grand jury venire." 443 U.S. at 551 n.4, at 2998 n.4. The Rose court, then, is said to have left undecided the question whether grand jury foreperson selection procedures are subject to constitutional scrutiny. Regardless of the Court's holding, the government argues that Rose v. Mitchell is distinguishable in any event because the state grand jury foreperson in question there held important statutory powers not possessed by federal grand jury forepersons. Both points are unpersuasive.

The Supreme Court in Rose v. Mitchell had no disagreement with the Sixth Circuit's conclusion that "proof of discrimination in the selection of a grand jury foreman mandates the same remedy as does proof of discrimination in the selection of the grand jury." Mitchell v. Rose, 570 F.2d 129, 135 (6th Cir. 1978); rev'd., 443 U.S. 545, 99 S.Ct. 2993 (1979). This premise underlies the Supreme Court's lengthy analysis concerning discriminatory intent. The claim of the Rose defendants failed because "as a matter of law, respondents failed to make out a prima facie case of discrimination." Rose v. Mitchell, 443 U.S. at 574, 99 S.Ct. at 3009. Had discrimination been shown, the Sixth Circuit's order setting aside the indictment and conviction would have been sustained. There is therefore no merit to the government's assertion that no constitutional significance attaches to the office.

The government's alternative argument is also meritless. The federal grand jury foreperson, like his counterpart in Tennessee, "is a full member of the grand jury . . . and like every other chairperson is in a position to guide, whether properly or...