United States v. Layton, CR-80-416 RFP.
| Decision Date | 24 June 1981 |
| Docket Number | No. CR-80-416 RFP.,CR-80-416 RFP. |
| Citation | 519 F. Supp. 946 |
| Parties | UNITED STATES of America, Plaintiff, v. Laurence John LAYTON, Defendant. |
| Court | U.S. District Court — Northern District of California |
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G. William Hunter, U. S. Atty., San Francisco, Cal., Alan J. Sobol, Sp. Asst. U. S. Atty., Dept. of Justice, Crim. Div., Washington, D. C., Robert L. Dondero, Michael D. Nerney, Stanford Svetcov, Asst. U. S. Attys., San Francisco, Cal., for plaintiff United States.
James F. Hewitt, Federal Public Defender, Frank O. Bell, Jr., Chief Asst., Federal Public Defender, Tony Tamburello, San Francisco, Cal., for defendant Laurence John Layton.
The defendant Laurence Layton moves to dismiss the indictment on the ground that the procedures employed to select the members of the grand jury which indicted him are constitutionally and statutorily defective.
The defendant was indicted on October 9, 1980, by Grand Jury No. 80-6. The foreman of that grand jury was a white male, as is Mr. Layton. The grand jury had been impanelled on September 10, 1980, from names drawn from the list of persons who registered to vote in this district in the 1976 general election. Counsel were appointed in early December, 1980, and made their first appearances in this matter at that time. The litigation has been extremely active and extremely expensive. Both the government and the defendant have filed a great many pretrial motions. The instant motion to dismiss the indictment was not, however, filed until June 8, 1981, over seven months after counsel were appointed and only a month before the scheduled date of trial, July 9, 1981.
The defendant challenges the Northern District's jury selection procedures on the following grounds:
(1) The Northern District's Jury Selection Plan (the "Plan") sets forth classes of people to be excused from jury service on individual request, but fails to make any finding that these classes would suffer extreme hardship and inconvenience from jury service. The Jury Selection Act of 1968 requires that the Plan make such a finding as to classes of people who are to be excused on request.
(2) The Plan's excusal categories are overbroad, resulting in underrepresentation of young people, poor people, minorities, women, and working people.
(3) In practice, judges are not excusing prospective jurors who claim to belong to one of the excusal categories, as required by the Plan and the statute. Instead, the deputy jury clerk is doing so by examining the juror qualification questionnaires to determine whether they are internally consistent, following up on some but not others, and allegedly using subjective rather than objective criteria.
(4) The deputy clerk has sometimes used "professional jurors" — people who have sat on juries before and expressed enjoyment of doing so — when an insufficient number of people respond to the summons and there is no time to send out more summons. The assistant federal defender's affidavit states that she is informed that this has occurred in petit juries and that she therefore assumes that it has also occurred in grand juries.
(5) The deputy clerk does not follow up on unreturned jury questionnaires. The number of unreturned questionnaires increases at the end of each four-year period because the master list from which the names are drawn is becoming stale and many of the addresses are no longer correct. Defendant speculates that this leads to underrepresentation of the 18 and 24 age bracket because allegedly people in that bracket tend to move frequently.
(6) The assistant federal defender's affidavit states that the deputy clerk told a staff member in the defender's office that it seemed to him that most grand jury foremen have been white males.
Based on these assertions, the defendant raises a number of statutory and constitutional challenges to this district's jury selection procedures. Each will be discussed below.1
The Jury Selection Act of 1968, 28 U.S.C. § 1861, et seq. (the "Act") sets forth certain procedures for selecting fair and impartial juries to serve in federal courts. The policy of the statute is to ensure the right of each litigant in federal court to a jury "selected at random from a fair cross section of the community." 28 U.S.C. § 1861. Section 1862 prohibits discrimination in the selection of jurors on the basis of race, color, religion, sex, national origin, or economic status. Section 1863 requires each district court to adopt a jury selection plan designed to achieve the objectives of the Act.2 That section provides, among other things that the plan shall specify classes of persons to be excused upon individual request, "if the district court finds, and the plan so states, that jury service by such class would entail undue hardship or extreme inconvenience to the members thereof" and that excusal of these classes would not be inconsistent with sections 1861 and 1862. Section 1865 of the Act requires that the chief judge of the district court, or such other district judge as the plan may provide, shall determine whether a person is unqualified for or exempt or to be excused from jury service. The Jury Selection Plan for the Northern District of California specifies that the general duty judge or the chief judge may make this determination. Section 1867(a) provides the exclusive procedure for challenging jury selection procedures as inconsistent with the Act. It provides that such a challenge must be made before the voir dire begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds for the motion, whichever date occurs earlier. Section 1867(d) provides that, if the motion contains "a sworn statement of facts which, if true, would constitute a substantial failure to comply" with the Act, the movant shall be entitled to present the testimony of the jury clerk, and certain other evidence, in support of the motion. Section 1867(f) provides that the movant shall have the right to inspect and reproduce certain papers and records used in the jury selection process at all reasonable times during the preparation of the motion. Hence, the statute provides extremely liberal access to otherwise non-public jury selection records, which access makes it possible for the movant to state facts satisfying the requirement in section 1867(f) of a sworn statement, if such facts exist, and should also make it possible for the movant to comply with the extremely strict timeliness requirement in section 1867(a).
The defendant asserts a number of statutory challenges; namely, (1) that the Plan fails to make the required finding of hardship with respect to the excusal categories specified in the Plan, and that no such finding could be made because these classes would not, in fact, suffer extreme hardship as a result of jury service, (2) that excusal by the deputy clerk rather than a district judge violates section 1865, as well as being inconsistent with the Plan, (3) that the use of "volunteer jurors" violates the requirements in sections 1861 and 1866(f) that jurors be selected at random, and (4) that the jury selection system as a whole, including the excusal categories and the deputy clerk's failure to follow up on unreturned questionnaires, leads to substantial underrepresentation of a number of groups in violation of the requirements and policies of sections 1861 and 1862.
The first question is whether these statutory challenges comply with the procedures required under section 1867. That section, as noted above, provides that any statutory challenge must be asserted before the voir dire begins, or within seven days after the defendant did discover, or by the exercise of diligence could have discovered, the factual basis for the challenge, whichever date first occurs. The assistant federal defender does allege that she actually discovered the facts on which she bases this motion within seven days of the time she filed the motion. She does not, however, allege that she could not with the exercise of diligence have discovered these facts earlier. The better practice would be to include such allegations when a motion of this type is filed so late that questions of timeliness are certain to arise. It seems improbable that defendant's counsel could explain why these facts could not have been discovered earlier in this litigation.
Under section 1867(a), it is quite clear that facial challenges to the Plan are untimely. As noted above, the defendant demands dismissal of his indictment on the grounds that the Plan fails to make the required finding of hardship with respect to the excusal categories, that no such finding could reasonably be made, and that excusal of these categories results in underrepresentation of groups which are allegedly cognizable under the statute. The Plan is, however, a matter of public record, and these alleged defects in the Plan could have been discovered at any time, simply by reading the Plan. The assistant federal defender states that only recently did she receive a copy of the Plan, but she does not allege that the public defender's office was in any way prevented from examining the Plan at an earlier date.
As noted above, defendant's counsel made their first appearances in this matter in early December of 1980, over seven months before filing the instant motion. During this entire period, they have been chargeable with constructive knowledge of the contents of the Plan. See U.S. v. Geelan, 509 F.2d 737, 739-40 (8th Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975). Facial challenges to the Plan itself — that is, the challenge based on the Plan's failure to make a finding regarding hardship, and the statutory challenge to the excusal categories themselves — are thus clearly barred as untimely under the "seven day rule" in section 1867(a).
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