United States v. Manbeck

• Decision Date: 17 June 1981
• Docket Number: Crim. No. 80-278.
• Citation: 514 F. Supp. 141
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. Robert John MANBECK, Thomas Manbeck, Kenneth Herring, Gary Gallopo, Mark Huiet Sale, David Martin Summerville, Lorenz Josephus Proden, Kermit Theodore Brogden, John O'Hare, Eddie Brantley, Thomas Earnest Folske, Thomas Sams Hightower, Timothy Alan Laxton, Harrel Lewis, Jr., John Isidore Stevens, Aaron Douglas Staetter, John Michael Iyoob, Robert Charles Michael, James Anthony Hastings, John Benjamin Barton, Jr., John Wesley Flannel, Jessie Lee Mallory, Arthur Duncan, and Gregory Michael Scott.

514 F. Supp. 141

UNITED STATES of America v. Robert John MANBECK, Thomas Manbeck, Kenneth Herring, Gary Gallopo, Mark Huiet Sale, David Martin Summerville, Lorenz Josephus Proden, Kermit Theodore Brogden, John O'Hare, Eddie Brantley, Thomas Earnest Folske, Thomas Sams Hightower, Timothy Alan Laxton, Harrel Lewis, Jr., John Isidore Stevens, Aaron Douglas Staetter, John Michael Iyoob, Robert Charles Michael, James Anthony Hastings, John Benjamin Barton, Jr., John Wesley Flannel, Jessie Lee Mallory, Arthur Duncan, and Gregory Michael Scott.

Crim. No. 80-278.

United States District Court, D. South Carolina, Charleston Division.

April 24, 1981.

As Amended June 17, 1981.

Lionel S. Lofton, Asst. U. S. Atty., Charleston, S. C., and Cameron B. Littlejohn, Jr., Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Mark Kadish, Rhonda A. Brofman, Kadish, Davis & Brofman, P. C., Atlanta, Ga., and Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for defendants Thomas Manbeck and Herring.

Michael L. Pritzker, Marcia L. Smith, Stroup, Goldstein, Jenkins & Pritzker, Chicago, Ill., and Dennis E. O'Neill, Burkett, Guerard, Wooddy, Bargmann, Cisa & O'Neill, Mount Pleasant, S. C., for defendant Gallopo.

Edward Garland, Austin E. Catts, John R. Hesmer, Garland, Nuckolls & Catts, Atlanta, Ga., for defendants Sale and Proden.

Mark C. Tannenbaum, Charleston, S. C., Local Counsel for defendant Sale.

Gedney M. Howe, III, Howe & Howe, Charleston, S. C., Local Counsel for Proden.

R. David Botts, Harper, Wiggins & Botts, Atlanta, Ga., and Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for defendant Summerville.

Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for defendant Brogden.

Arthur G. Howe, Paul Uricchio, Barry Krell, Uricchio, Howe & Krell, P. A., Charleston, S. C., for defendants O'Hare, Brantley, Folske, Hightower, Lewis, Laxton and Stevens.

Edwin Marger, Diane Marger, Atlanta, Ga., and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendants Staetter, Iyoob, Hastings and Scott.

Dale T. Cobb, Belk, Howard & Cobb, Charleston, S. C., for defendant Michael.

Donald B. Walker, Atlanta, Ga., and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendants Barton, Mallory and Duncan.

Robert G. Fierer, Steven Westby, Atlanta, Ga., and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendant Flannel.

ORDER

HAWKINS, District Judge.

This case involves a four-count indictment against twenty-four defendants alleging various drug related charges arising out of a drug smuggling operation which took place at Bennett's Point, South Carolina, in November 1980.

Pursuant to motions of numerous of the within defendants, the court on January 27, 1981, ordered that the Clerk of the United States District Court for the District of South Carolina make available to the defendants, their attorneys and investigators, all records relating to jury selection. After the completion of an extensive investigation, a motion was filed on January 29, 1981, by some of the defendants, seeking a stay of the proceedings due to the improper selection of the petit jury. This motion was subsequently joined in by all defendants. Thereafter, a motion, later joined in by all defendants, was filed on February 25, 1981, seeking a dismissal of the indictment due to the improper selection of the grand jury. The former motion became moot due to a redrawing of the petit jury and the subsequent waiver by all defendants of their right to trial by jury. It is the latter motion which this opinion deals with. Specifically, Defendants Flannel, Barton, Mallory and Duncan moved the court, pursuant to the Fifth and Sixth Amendments of the United States Constitution, Title 28, United States Code Section 1867(a), Rule 6 of the Federal Rules of Criminal Procedure and The Amended Plan of the United States District Court of South Carolina for the Random Selection of Grand and Petit Jurors ("Plan"), that the indictment be dismissed, that the petit array be stricken, and that all proceedings be stayed until such time as the grand and petit jurors were selected in conformity with the Jury Selection and Service Act of 1968, as amended, and the Plan.¹ All other defendants joined in the motion.

As to any issues raised by defendants concerning the petit jury, it would appear that in light of the defendants' waiver of a trial by jury, such issues would not require attention by this court. However, where it is deemed advisable to comment on matters concerning the petit jury, this court will do so.

A. MINIMUM POOL SIZE VIOLATION

The defendants first contend that the Clerk of Court substantially failed to comply with the provisions of Sections 1861 and 1863 of Title 28 of the United States Code and the Plan and violated the Fifth and Sixth Amendments of the United States Constitution when he allowed the grand jury that indicted the defendants to be selected from a qualified jury wheel which contained only 299 names of the first drawing and 267 names on the second drawing.

The Amended Plan of the United States District Court for the District of South Carolina for the Random Selection of Grand and Petit Jurors² provides in part:

The Clerk shall maintain separate qualified jury wheels for each jury area in the District and a District-wide qualified wheel, and shall place in such wheels the names of all persons drawn from the master jury wheel and not disqualified, exempt, or excused pursuant to this Plan. He shall insure that at all times at least 300 names are contained in each such wheel.

The government's witness, Mr. John Williams,³ testified that the selection process began with a qualified jury wheel consisting of thousands of names. He confirmed that as the selection procedure advanced, the size of the wheel decreased, until the wheel did contain fewer than the required 300 names for the drawing at issue here. Mr. Williams further testified that it was not a "regular practice" to draw from a wheel consisting of less than the required 300 names.

This court must reject defendants' contention that the indictment should be dismissed because the drawings were made from a qualified jury wheel consisting of slightly less than the required 300 names. A violation of the district's Local Plan constitutes a violation of the Act if the violation of the Local Plan subverts one of the two paramount purposes of the Act." See United States v. Alexander, No. CR 79-09N (N.D.Ga.1981). A House Report on the Act stated that the two important principles underlying the Act were the "random selection of juror names from voter lists" and "determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only." H.R. 1076, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, pp. 1792, 1793. Neither of these goals are undermined by the incident in question. Even if the violation of the Plan in this instance constituted a violation of the Act, such a violation was not a substantial one. Section 1867(d) of Title 28 of the United States Code provides that an indictment can be dismissed for substantial failure to comply with the Act. This court is persuaded that the situation here constitutes only a mere technical violation of the Act and not a substantial failure to comply with its provisions. Moreover, defendants' constitutional claims are without merit.

B. DENIAL OF GRAND AND PETIT JURY DRAWN FROM FAIR CROSS SECTION OF THE COMMUNITY

The defendants contend that they were denied their right to a grand and petit jury drawn from a fair cross section of the community in violation of the Plan, Section 1863 of Title 28 of the United States Code, and the Fifth and Sixth Amendments to the United States Constitution. The defendants claim that the qualified wheels do not represent a fair cross section of the community because of the low rate of return of the questionnaires, the tainted nature of the original source (voter registration list), and the high rate of women excused. The court finds these arguments to be unpersuasive.

1. Low Rate of Return of Questionnaires

Defendants first argue that the Clerk violated the Plan, Section 1863 of Title 28 of the United States Code and the Fifth and Sixth Amendments to the United States Constitution because the Clerk created the qualifying grand jury wheel after receiving only the return of 80% of the juror questionnaires and 62% for the petit jury. The defendants relied primarily on the argument that the Clerk failed to comply with criteria set by the Plan, which apparently requires a return of 95% or more of juror questionnaires prior to sending the Juror Qualifying Cards to the Division of General Services.⁴

In United States v. Armsbury, 408 F.Supp. 1130, 1142 (D.Or.1976), it was recognized that "the failure to require return of questionnaires in no way affects the determination of whether a grand jury or a petit jury is drawn from a fair cross section." "The names of those who fail to return questionnaires never enter the qualified pool and therefore are of no importance to the defendants." Id.

Even if the violation of the Plan in this instance constitutes a violation of the Act, it is the holding of this court that the failure of the Clerk to wait for a 95% return rate for the grand jury or petit jury constitutes only harmless error and was not a substantial failure to comply with the Act. Thus, such a violation of the Act would not provide defendants with a remedy.

2. Inadequate Source List

Defendants next contend that because voter registration lists were the sole source of names of prospective jurors, and were not supplemented by other lists,⁵ the resulting qualified wheels did not represent a fair cross section of the community. Specifically, defendants contend that Sections 1861, 1863(b)(2), 1865(b)(5), 1869(c) of Title 28 of the United States Code; Section 1971, et seq. of Title 42 of the United States Code; the Act of June 25, 1868, 15...