United States v. Kuhn, 30262 Summary Calendar.

• Decision Date: 28 April 1971
• Docket Number: No. 30262 Summary Calendar.,30262 Summary Calendar.
• Citation: 441 F.2d 179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan Dale KUHN and Robert Lawrence Greenwood, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

441 F.2d 179 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Allan Dale KUHN and Robert Lawrence Greenwood, Defendants-Appellants.

No. 30262 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 2, 1971.

Rehearing Denied April 28, 1971.

Lawrence S. Katz (Court-appointed), Milton E. Grusmark (Court-appointed), Miami Beach, Fla., for defendants-appellants.

Robert W. Rust, U. S. Atty., J. V. Eskenazi, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellants Kuhn and Greenwood were convicted and sentenced on their respective pleas of nolo contendere to violating 18 U.S.C.A. § 2315.

The sole contention on this appeal is that the jury selection system used in the Northern District of Florida systematically excludes a cognizable group of young adults from jury service, and that appellants were therefore denied the possibility of a fair trial, equal protection of the law, and due process as a result thereof. The system attacked is the "Plan of the United States District Court for the Northern District of Florida, All Divisions, for the Random Selection of Grand and Petit Jurors," adopted pursuant to the requirements of the Jury Selection and Service Act of 1968.

On May 12, 1970, the case against appellants Robert Lawrence Greenwood and Allan Dale Kuhn was called for trial, at which time their counsel orally moved to "dismiss"¹ because of an alleged illegally constituted jury. Argument and ruling thereon were temporarily reserved. However, appellants thereafter withdrew their pleas of not guilty and entered pleas of nolo contendere to Count II of an indictment which charged them with receiving, storing and concealing stolen securities moving in interstate commerce, in violation of 18 U.S.C. § 2315. Count I of the indictment, a conspiracy count, was thereupon dismissed, and the Court sentenced appellants to four years' imprisonment on Count II. Thereafter the Court heard testimony and argument on defendants' challenge to the jury selection system and denied defendants' motion to dismiss. We affirm.

We note at the outset that appellants' convictions and sentences were based on their pleas of nolo contendere and not as a result of a verdict by a jury allegedly improperly constituted. Consequently, the composition of the jury could have no possible prejudicial effect on appellants' convictions. However, in order to foreclose possible future post-conviction contentions, we specifically hold that the "Plan" for the Northern District of Florida fully complies with the requirements of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., both as to content and its application to appellants.

The language of the "Plan" challenged by appellants is the provision that "Each master jury wheel shall be emptied and refilled during the period June 1 — November 30, 1971, and each fifth year thereafter." Under the "Plan" names of prospective grand and petit jurors are selected at random from voter registration lists. The master jury wheel was emptied and refilled on December 26, 1968, and no additional names were added between that time and May 11, 1970, the date on which this case was set for trial. Consequently, names of individuals who attained voting age in the interim period were not contained in the wheel at the time of these proceedings. Appellants contend that this constitutes a systematic exclusion from jury service of a cognizable and distinct group of "young adults."

There is no merit to appellants' contentions. The Jury Selection and Service Act of 1968 was drafted by the Committee on the Operation of the Jury System under authority of the Judicial Conference of the United States² In order to achieve the objectives of the Act, the Committee submitted certain guidelines, which provide in pertinent part:

"The Act requires the plan to fix the times when the master jury wheel must be emptied and refilled. In most cases it is anticipated this will be every 2 or 4 years. The master wheel will then be filled once to last this entire period."

A footnote to the quoted language states that

"In the event that not enough names were placed initially in the master jury wheel, additional names can be added from time to time as necessary. It may be burdensome to do so, however, because of the necessity of again obtaining the voter lists and making a random selection. Thus it is desirable initially to place sufficient names in the master jury wheel."

The "Plan" for the Northern District of Florida was drawn in accordance with the guidelines, and subsequently approved by a Reviewing Panel of this Circuit on September 10, 1968. The petit jury in ...