United States v. Marrapese
| Decision Date | 11 June 1985 |
| Docket Number | Crim. No. 85-015-01,85-015-02-S. |
| Parties | UNITED STATES of America v. Frank L. MARRAPESE, Jr., also known as "Bobo," and John F. Cicilline. |
| Court | U.S. District Court — District of Rhode Island |
COPYRIGHT MATERIAL OMITTED
Edwin J. Gale, Sp. Atty., U.S. Dept. of Justice, Lincoln C. Almond, U.S. Atty., Providence, R.I., for plaintiff.
Joseph J. Balliro, Boston, Mass., John F. Sheehan, Providence, R.I., for J.F. Cicilline.
Richard M. Egbert, Boston, Mass., Edward J. Romano, Providence, R.I., for F.L. Marrapese.
In February of 1985, the defendants herein, Frank L. Marrapese, Jr. and John F. Cicilline, were indicted by a grand jury in this district on charges of obstructing justice, 18 U.S.C. § 1503, and conspiring to suborn perjury and obstruct justice in violation of 18 U.S.C. § 371. They have moved to dismiss the indictment, arguing that the grand jury selection process was flawed, that the composition of the grand jury was unlawful, that the sitting grand jury was subjected to unfair manipulative influences, and that the grand jury's term had expired at the time the indictment was returned. The court took the matter under advisement following an evidentiary hearing, prolific briefing, and oral argument.
The Juror Selection Plan for the district of Rhode Island, effective October 15, 1975, as amended effective February 1, 1982 (Plan), states in substance that the clerk of the court shall manage the jury selection process under the supervision and control of the Chief Judge. In March, 1982, the clerk's office requested the Division of Information Processing of the state of Rhode Island to compile two rosters of names, randomly selected from the state's voter registration lists. The state complied. One listing, consisting of 5000 names, thereafter became the court's petit jury master wheel. The second listing of 1000 names formed the raw material for the court's grand jury master wheel. This district has apparently used separate wheels for petit and grand jury selections since at least 1973.
Following receipt of the names and computer-generated questionnaires from the state, the clerk's office divided the prospective grand jury roster roughly in half through a random process. This was done pursuant to a directive from the Administrative Office of the U.S. Courts recommending that juror questionnaires be mailed in groups of about 500, rather than all at once, as a means to preserve the public fisc. Accordingly, 447 randomly-selected questionnaires were mailed to prospective grand jury veniremen; the remaining 553 questionnaires were reserved for later use if additional qualified jurymen proved to be required. Of the 447 mailed questionnaires, 37 were returned to the clerk's office as undeliverable.
After the remaining questionnaires had been completed and returned, the clerk's office began the qualification process. The Plan provided that "excuse or deferment of service may be granted upon individual request" for:
The Plan further stipulated that only those persons who were exempted from jury service under 28 U.S.C. § 1863(b)(6) would be entitled to exemption as of right. The Plan summarized those classes of individuals as follows:
At the times material hereto, the clerk of this court held a dual appointment as clerk/part-time magistrate. The clerk/magistrate acquainted staff members who were assigned to work on the qualification process with a variety of general guidelines. These instructions were principally oral. In this instance, the deputy clerk who was given the initial first-line responsibility for screening juror responses also used a written sheet of guidelines provided by another deputy clerk.
Armed with these instructions, the deputy clerk reviewed each questionnaire. Based on the information provided on the forms, she divided the replies into three categories. The questionnaires which, on their face, reflected the respondents' eligibility to serve, and which did not appear to present any issues as to absolution, were placed in one group. A second array intermixed both those who were exempt and those who were not only excusable, but also likely to be excused based on the guidelines given to the deputy. And, those individuals whose status seemed problematic were placed in the third category. The clerk/magistrate then personally reviewed all of the doubtful cases and made final decisions. In addition, he reviewed some indeterminate number of the questionnaires which had been placed in the tentatively disqualified grouping. His estimate that he probably scanned as many as 70% of these proffers seems creditworthy. In those cases where he did not feel that the grounds for excusal merited such treatment, the questionnaires were added to the qualified pile.
In the wake of this credentialling process, 231 grand jurors were deemed qualified and available for grand jury service. (Twelve of the acceptable questionnaires were inadvertently misplaced in the pile of disenfranchised forms, and these otherwise qualified individuals were not listed as such in the computer.) The grand jury annulus was initially formulated on this basis. In October, 1983, the first grand jury was drawn from the master wheel so constituted, again at random, and nearly 50 persons were summoned for service. The persons so summoned were excluded from further grand jury drawings, whether or not actually seated as members of the October, 1983 grand jury. The number of available grand jurors in the pool thus shrunk by 47.
The grand jury which indicted these defendants was the second grand jury to be selected from this master wheel. Prospective members were summoned to report on April 27, 1984. In line with customary practice, this venire was randomly selected from the names remaining in the master wheel. Before the return date, a few persons were excused from attendance by the deputy clerks after consultation in each instance with the clerk/magistrate; others were excused on the day of empanellment by the clerk/magistrate upon the consent of the presiding district judge. None of these post-summons dismissals have been specifically challenged by the movants. Twenty-three grand jurors were seated and sworn.
After the April, 1984 empanelling, the United States Attorney's office pulled the laboring oar, as has been the protocol in this district for many years (the memory of living man runneth not to the contrary), in notifying talesmen of scheduled sittings and in keeping a truancy count (although the clerk's office maintained payroll records of grand jury attendance to insure that jurors were properly compensated). If a grand juror received notice of a planned session and felt that he or she could not attend, the juror would simply notify the United States Attorney's office in advance. The reasons underlying inability to appear are varied—e.g., illness, absence from the district, familial or business exigencies— and are not independently verified. Jurors are, it seems, taken at their word. If a juror fails to report for a scheduled sitting without any forewarning, that juror is marked as "absent" rather than as "excused." So long as the number of grand jurors does not shrink to such an extent that the statutory quorum requirement is in jeopardy, see 18 U.S.C. § 3321; Fed.R. Crim.P. 6(a), the United States Attorney routinely honors tendered excuses and, insofar as appears of record here, does not attempt to discipline those who may be absent without leave. On the day of the scheduled sitting, the grand jurors check in at the clerk's office before proceeding to the grand jury room.
On February 20, 1985, when the evidence pertaining to this indictment was taken, four grand jurors were not present. The records indicate that of the four absentees, one individual had not attended since August, 1984 (when he had moved out of state and informed the prosecutor of that fact). Two of the other grand jurors had telephoned in advance to say that they could not attend; one was on vacation, the second had planned an out of town business trip. The fourth juryman was simply absent. Accordingly, nineteen grand jurors were present. They unanimously voted a true bill with respect to the indictment at bar.
The Jury Selection and Service Act of 1968, as amended, 28 U.S.C. §§ 1861-1877 (1985 Supp.) (the Act), establishes strict procedural requirements for motions to dismiss an indictment because of alleged grand jury irregularities. Such a motion must be filed "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, ..." 28 U.S.C. § 1867(a). See also Fed.R. Crim.P. 6(b)(2). The...
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