United States v. Marcano

• Decision Date: 07 November 1980
• Docket Number: Crim. No. 78-107.
• Citation: 508 F. Supp. 462
• Parties: UNITED STATES of America, Plaintiff, v. Pablo MARCANO et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

508 F. Supp. 462

UNITED STATES of America, Plaintiff, v. Pablo MARCANO et al., Defendants.

Crim. No. 78-107.

United States District Court, D. Puerto Rico.

November 7, 1980.

COPYRIGHT MATERIAL OMITTED

Daniel Lopez Romo, U. S. Atty., San Juan, P. R., for plaintiff.

Pedro Varela and José E. Carreras, Hato Rey, P. R., for defendants.

OPINION AND ORDER

TORRUELLA, District Judge.

This case is now before us upon Defendants' "Motion to dismiss indictment and to strike the petit jury array and/or for new trial", and the Government's opposition thereto.

The Motion is made under the provisions of 28 U.S.C. Sec. 1867(d). Defendants allege in substance that the jury pool¹, from which the grand and petit jurors of the case at bar were drawn, was not selected in accordance with the provisions of the Sixth Amendment² of the Constitution of the United States and the Jury Selection and Service Act of 1968, 28 U.S.C. Secs. 1861 et seq. ("Act"). Defendants further move this Court for a hearing as provided in 28 U.S.C. Sec. 1867(d).

Our initial duty is to determine whether the Defendants have complied with the requirements of 28 U.S.C. Sec. 1867 for this type of Motion and which constitute "the strict prerequisites that Congress established for challenging juries alleged to have been selected in violation of the Act." United States v. Foxworth, 599 F.2d 1, 3 (1st Cir., 1979). Accord, United States v. Merlino, 595 F.2d 1016, 1020 (5th Cir., 1979) cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752; United States v. Rodriguez, 588 F.2d 1003, 1009 (5th Cir., 1979); United States v. D'Alora, 585 F.2d 16, 22 (1st Cir., 1978); United States v. Young, 570 F.2d 152, 153 (6th Cir., 1978); United States v. Kennedy, 548 F.2d 608, 609 (5th Cir., 1977), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); United States v. Jones, 480 F.2d 1135, 1139 (2nd Cir., 1973).

"Section 1867(a) of the Act provides that a defendant, by motion to dismiss the indictment, may challenge jury selection procedures for substantial failure to comply with the Act. Section 1867(d) requires that the motion contain `a sworn statement of facts, which, if true, would constitute a substantial failure to comply with the provisions of this title.' Section 1867(e) states that `the procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime ... may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.'" United States v. Foxworth, 599 F.2d at 3.

In the case at bar Defendants' Motion, filed on August 28, 1980, does not contain the required sworn statement of fact. The Report³ filed by Defendants together with the Motion, was not sworn. The original "Motion to dismiss indictment and to strike the petit jury array" filed on August 10, 1978 did not contain any sworn statement either. Said Motion simply stated in fine that "Defendants further move that Affidavits and demographic data studies will be filed in this case in the next thirty days." No such affidavits, however, appear on file.

From the foregoing it is evident that Defendants have had more than ample time to file the required sworn statement. They have, nevertheless, failed to do so. "Such failure to comply with the express statutory requirement of Section 1867(d) precludes Defendants' statutory challenge to the jury selection process." Id. Accord, United States v. Kennedy, 548 F.2d at 612-613; United States v. Jones, 480 F.2d at 1139.

However, in spite of Defendants' failure to properly present their Motion, and since they also make constitutional⁴ challenges to the jury selection process, we have fully considered all of Defendants' claims, which may be enumerated as follows:

1. The jury pool was not randomly selected as required by 28 U.S.C. sec. 1861 et seq.⁵

2. The jury pool was illegally constituted because the mandate of 28 U.S.C. sec. 1864(a) was consistently violated in the selection of jurors.⁶

3. The jury pool was constitutionally and legally defective in that cognizable classes were systematically excluded or underrepresented as follows: person of the working class or of lower socioeconomic status, the lesser educated, non-whites and young people.

4. The jury pool was unconstitutionally and illegally constituted in that the criteria applied by the Court in determining qualification and disqualification of persons based on their English language ability, deliberately and systematically discriminates in favor of including those who are more educated and of higher socioeconomic status, and against persons who are under-educated and of lower socioeconomic status.

5. The jury pool was illegally constituted in that an overwhelming majority of jurors were qualified in violation of the requirement of Section 1865(b)(2) that they know sufficient English to be able to fill out satisfactorily the juror qualification questionnaires.

6. The jury pool was constitutionally and legally defective because a substantial proportion of the prospective jurors were not sufficiently competent in the English language to satisfactorily perform jury service.

We shall discuss Defendants' claims in the above order.

The terms of the Act provide that all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit juries selected at random⁷ from a fair cross-section of the community within the district and that "all citizens shall have the opportunity to be considered for service." 28 U.S.C. Sec. 1861. The Plan contains similar provisions but with reference to the District of Puerto Rico. It also provides that "names of prospective jurors to serve on grand and petit juries in this Court shall be selected only from the certified lists of registered voters maintained by the Electoral Tribunal of the Commonwealth of Puerto Rico for each and every one of the voting precincts of the Commonwealth of Puerto Rico." (Plan, par. 5).

Defendants claim that the master jury wheel from which the juries in the case at bar were drawn, was not selected at random as required by the Act and the Plan. Their allegations are as follows:⁸ The total number of voters registered and authorized to vote at the general elections held on November 2, 1976, was of 1,701,217. The master jury wheel used in this case consisted of 68,000 names chosen at random from said electoral lists as provided in the Plan. Using a lottery process, the number 22 was randomly selected as the starting number for the selection process. Therefore, 68,000 names were drawn, beginning with the 22nd name in the electoral lists, and then picking out every 25th name thereafter until all of the 68,000 were selected. (Report, pp. 3-4). Defendants' argument is as follows: A random selection requires that each name in the list have a non-zero probability of selection. In this case the assigned probability is .04, that is, one out of twenty-five. Since the Court established that 68,000 would be selected, the electoral lists were used up to the name listed in the 1,700,000th position. That is, 1,700,000 divided by 25 equals 68,000. Since there was a total of 1,701,217 names in the electoral list, the process of selection carried out by the Court assigned zero probability to one thousand two hundred seventeen (1,217) persons in violation of the terms of the Act and the Plan. (Defendants' Memorandum, p. 14, Report, pp. 4-5).

Defendants erroneously interpret the "at random selection" requirement of the Act and the Plan as meaning at random sampling as this term is used by mathematicians and sociologists. Neither the Act nor the Plan make such a demand. It is clear from the legislative history of the Act that it "does not insist upon randomness in the sense in which that term might be understood by statistitians." S.Rep.No.891, 90th Cong., 1st Sess., p. 16 n. 9, quoted in United States v. Valentine, 288 F.Supp. 957, 973 (D.P.R.1968). All that is required is that the names by selected by chance (i. e., at random) from the corresponding source, in this case the electoral lists for the November 2, 1976 election. See United States v. Ramos Colón, 415 F.Supp. 459, 462-463 (D.P.R.1976); H.R.Rep.No.1076, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. and Ad.News 1792, 1800. Compare United States v. Kennedy, 548 F.2d at 610-611.

An examination of Defendants' allegations and data fails to establish that the master jury wheel was not so selected. Said allegations indeed show the opposite, i. e., that the at random requirement was adequately complied with.

If we use Defendants' numbers and divide 1,701,217 (the alleged total number of persons in the electoral lists for the November 2, 1976 general elections) by 68,000 (the alleged total number of names drawn from said lists), the quotient is 25.017897. Since this quotient was to represent a position in the electoral lists, it had to be rounded to the nearest integer number, i. e., number 25. This number was used to select the name in every 25th position after the starting number. See Plan, par. 10(b)(3). There was a comprehensive and adequate coverage of the electoral lists in the selection of the names for the master jury wheel. There is no requirement, as Defendants' argument would seem to imply, that the name at the end of the electoral lists has to be selected. Indeed, such a predetermined requirement would be contrary to the at random selection policy of the Act and the Plan.

Defendants' first claim, related to lack of randomness in the master jury wheel selection procedure, is therefore without merit.

Defendants also allege that the mandate of Section 1864(a) was consistently violated. As stated above, they do not discuss such claim, but we will assume it refers to the allegations made in the Report that a percentage of the jury qualification questionnaires sent in 1977 and 1978 were either not delivered, not returned or returned with some items not filled out. (R...