United States v. Kroncke, 5-70 CR. 19.

• Decision Date: 17 December 1970
• Docket Number: No. 5-70 CR. 19.,5-70 CR. 19.
• Citation: 321 F. Supp. 913
• Parties: UNITED STATES of America, Plaintiff, v. Francis Xavier KRONCKE, Michael Duane Therriault, Defendants.
• Court: U.S. District Court — District of Minnesota

321 F. Supp. 913

UNITED STATES of America, Plaintiff, v. Francis Xavier KRONCKE, Michael Duane Therriault, Defendants.

No. 5-70 CR. 19.

United States District Court, D. Minnesota, Fifth Division.

December 17, 1970.

Robert G. Renner, U. S. Atty., for plaintiff.

Kenneth E. Tilsen and Stuart W. Wells, III, St. Paul, Minn., for defendants.

Francis Xavier Kroncke, pro se.

NEVILLE, District Judge.

The defendants are charged in a one count indictment filed September 23, 1970 with a violation of 50 App. U.S.C. § 462(a), alleging that on or about July 10, 1970 at Little Falls, Minnesota, they entered the Selective Service Headquarters for Morrison County, Minnesota "to remove and destroy official records contained therein and thus disrupt the official activities at said location." Defendants were arraigned and entered pleas of not guilty.

In a pretrial motion they have moved to strike the venire of petit and grand jurors and to dismiss the indictment, on the grounds that the venire or panel of jurors does not represent a fair cross-section of the community as required by law and by the United States Constitution. The jurors in the District of Minnesota, as in many other districts, are selected from the voting lists of actual or registered voters compiled from the last presidential election, in this case 1968. The Jury Service and Selection Act of 1968, 28 U.S.C. § 1861 et seq., provides eligibility for jury service to any citizen of the United States 21 years of age and who has resided for a period of one year in the judicial district. There are certain exceptions not here material relating to a prospective juror's criminal activity, his illiteracy, mental infirmity, etc. and certain exemptions from service are granted. The announced policy of the law is that jurors shall be selected at random from a fair cross-section of the community. Following the passage of the Act and as therein provided, the judges of the District Court for the District of Minnesota promulgated and adopted a jury plan providing inter alia that jurors' names should be selected from voters lists with the venire list renewed and changed every four years after each presidential election. The plan was duly approved by the Reviewing Panel of the Court of Appeals for the Eighth Circuit. To the best of the knowledge of the judges in the District of Minnesota, the plan so adopted has followed the law and is in compliance therewith. Defendants claim:

(1) The law and the plan do not include those who do not vote, i.e., "the politically disaffected or alienated who refuse to participate in the political process through conventional electoral means." It is true that non-voters are not drawn as jurors since voting lists of actual or registered voters are the source of names. Jury duty is regarded both as a duty and as a privilege, and to be eligible therefor one must be a registered or actual voter. Those who wish to disassociate themselves from the political process by not voting forfeit the right to be selected on either a grand or petit jury. Congressional policy as expressed in the Jury Service and Selection Act of 1968 aforesaid establishes the voting lists as the primary source of jurors, with special provisions for the District of Columbia, where citizens then had no vote, and certain other districts such as Puerto Rico and the Canal Zone. Congress may well have been motivated by the practicalities of the situation and the frailties of any other method such as the use of telephone directories, tending only to reach home owners and far more frequently only the husband in whose name the listing is maintained, or privately published city directories which are not always updated nor completely accurate. A number of decisions have passed on the question and have held jury selection from voter lists to be constitutional. Gorin v. United States, 313 F.2d 641 (1st Cir. 1963); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966); United States v. Caci, 401 F.2d 664 (2d Cir. 1968); Camp v. United States, 413 F.2d 419 (5th Cir. 1969).

As stated in United States v. Caci, 401 F.2d 664 (2d Cir. 1968):

"It is well established that the use of voter registration lists as the source of names of prospective jurors is not unlawful because it results in the exclusion of nonvoters. See e.g., United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Agueci, 310 F.2d 817, 833-834 (2d Cir. 1962), cert. denied Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). Indeed, voter registration lists are made the primary source of jurors in the new Jury Selection and Service Act of 1968, 28 U.S. C.A. §§ 1861-1871 (Supp. July, 1968)." 401 F.2d at 671.

For jury selection purposes under the 1968 Act, nonvoters are not a "cognizable group" so as to render their exclusion unconstitutional. See Camp v. United States, supra.

(2) Many persons who were and are subject to military service between the ages of 18 and 21 are excluded. The first thing to be noted in this regard is that 28 U.S.C. § 1861 specifically provides a citizen must be 21 years of age to serve as a juror. As of this writing, the United States Supreme Court has before it the question of the validity of an Act of Congress extending the right to vote to those 18 years and older.^* At the last general election in...