United States v. Musto

Decision Date03 June 1982
Docket NumberNo. 81-144.,81-144.
Citation540 F. Supp. 346
PartiesUNITED STATES of America, Plaintiff, v. William V. MUSTO, Frank Scarafile, John J. Powers, Lawrence Dentico, Dominick D'Agostino, Gildo Aimone, Anthony Genovese and John Bertoli, Defendants.
CourtU.S. District Court — District of New Jersey



W. Hunt Dumont, U. S. Atty. by Maryanne T. Desmond, First Asst. U. S. Atty., Samuel Rosenthal, James Plaisted, Mark Malone, Richard Friedman, Asst. U. S. Attys., Newark, N. J., for plaintiff.

Irving Anolik, New York City, N. Y., for defendant William V. Musto.

Dennis McAlevy, Hoboken, N. J., for defendant Frank Scarafile.

Shain, Hayden, Perle, Rafanello, Schaffer & Irish by Joseph Hayden, Newark, N. J., for defendant John J. Powers.

Thomas Ford, Millburn, N. J., for defendant Lawrence Dentico.

Podvey & Sachs by J. Barry Cocoziello, and Alan Silber, Newark, N. J., for defendant Dominick D'Agostino.

Sills, Beck, Cummis, Radin & Tischman by Robert Baime, Newark, N. J., for defendant Gildo Aimone.

Flood & Basile by Raymond Flood, Hackensack, N. J., for defendant Anthony Genovese.

Robinson, Wayne, Greenberg, Levin, Riccio & LaSala by John D. Arseneault, Newark, N. J., for defendant John Bertoli.

SAROKIN, District Judge.

Defendants, alleging irregularities in the selection process for grand and petit jurors and for grand jury forepersons and deputy forepersons, seek to have the indictment against them dismissed. All of the defendants are white males over the age of 35. They make two contentions: first, that Blacks and Hispanics have been historically underrepresented in the grand and petit jury arrays of this district, and second, that Blacks, women, and persons under the age of 28 have been underrepresented in the positions of grand jury foreperson and deputy foreperson. Defendants allege that the disproportionate representation of these groups in the arrays and in the foreperson and deputy foreperson positions violates the fifth and sixth amendments to the United States Constitution and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861.

A hearing, lasting several days, was held to determine the validity of the defendants' factual allegations. The court received expert testimony on the methodology employed to establish the alleged disparities in representation and on the statistical significance of the disparities found. The court also heard testimony from social scientists, the United States Attorney, and several employees of the District Court Clerk's office on the significance of the role of the foreperson.


Although defendants are not members of the classes purportedly excluded from either the grand and petit jury arrays or from the foreperson and deputy foreperson positions, they nevertheless claim that they have standing under the fifth and sixth amendments and under 28 U.S.C. § 1861 to establish deficiencies in the juror and foreperson selection process. To determine whether a defendant has standing, the court must focus on whether the person whose standing is questioned is a proper party to request an adjudication of a particular issue and not on whether the issue itself is justiciable. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947 (1968). Resolution of this question is difficult because the same complexities and vagaries that generally inhere in other aspects of justiciability also surround questions of standing. Id. at 98, 88 S.Ct. at 1951. Nevertheless, analysis is simplified by making two inquiries: whether the party alleges that the challenged action has caused him injury in fact, economic or otherwise; and whether the interest sought to be protected by the complainant is arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). These questions will be first considered with respect to defendants' sixth amendment claims.

The sixth amendment guarantees to all criminal defendants the right to a "speedy and public trial, by an impartial jury." U.S.Const. amend. VI. An essential characteristic of an impartial jury is that its members are drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). A defendant indicted by an unrepresentative grand jury, cf. United States v. Layton, 519 F.Supp. 946 (N.D. Cal.1981), or convicted by an unrepresentative petit jury, Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), suffers injury because his constitutional and statutory rights to an impartial jury have been violated. The injury stemming from this defect in selection procedures casts doubt on the integrity of the judicial process. Therefore, a defendant has standing to challenge such violations under the sixth amendment even though he is not a member of the excluded or underrepresented class. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 695-96, 42 L.Ed.2d 690 (1975).

Similarly, defendants have standing under the Jury Selection and Service Act of 1968, to challenge unrepresentative grand or petit jury arrays. 28 U.S.C. § 1867. Standing to assert irregularities under the Act does not depend on whether the defendant is a member of the excluded or underrepresented class. United States v. Marcano, 508 F.Supp. 462 (D.P.R.1980). Thus, under both the sixth amendment and the Jury Selection and Service Act, defendants have standing to challenge the composition of grand and petit jury arrays.

Although defendants have standing to challenge the grand and petit jury arrays under the Constitution and under 28 U.S.C. § 1867, the government contends that defendants do not have standing under either source of law to challenge the exclusion of constitutionally cognizable groups from the positions of foreperson or deputy foreperson. Standing is lacking, the government argues, because the foreperson's duties are purely ministerial and do not have a significant impact on the fairness of the criminal justice system. Therefore, the values of a fair trial and of an untainted judicial process which underly sixth amendment challenges to the composition of jury arrays are not implicated where the claim of exclusion relates only to the foreperson or deputy foreperson positions.

The government's argument confuses standing with a disposition on the merits of defendants' claim. Defendants are contending that the institutional role of the foreperson is so substantial that the person filling the position has the power to alter the "unique qualities and characters of the jury's individual members." United States v. Jenison, 485 F.Supp. 655, 661-62 (S.D.Fla. 1979). If defendants succeed in proving that the foreperson position imbues its occupant with such overpowering influence, then it follows that the systematic exclusion of cognizable groups from the position without justification disturbs the values underlying the fair cross-section requirements of the sixth amendment and of 28 U.S.C. § 1861. Because sixth amendment values and the values underlying the Jury Selection and Service Act are arguably implicated by discrimination in the selection of forepersons, defendants have standing to proceed to the merits of their claim.

Although defendants have standing under the sixth amendment and under 28 U.S.C. § 1861, to contest irregularities in the composition of the grand and petit juries and in the selection of grand jury forepersons and deputy forepersons, they do not have standing to assert similar fifth amendment equal protection violations. Standing is lacking under the fifth amendment because defendants are not members of an allegedly excluded class. In Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), the court, considering a challenge to the grand jury array brought under the equal protection clause of the fourteenth amendment, stated:

In order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.

(emphasis supplied). The quoted language from Castaneda was cited with approval by the Court in Rose v. Mitchell, 443 U.S. 545, 565, 99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979). In Rose, defendants, all of whom were Black, alleged that an equal protection violation had occurred with respect to the selection of grand jury forepersons. The Court found that a prima facie case of discrimination had not been proven and reversed the appellate court.

Defendants argue that Rose is not applicable here and instead urge that Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), is controlling. In Peters, the Court held that a defendant need not be a member of an excluded class in order to challenge the composition of the grand jury that indicted him. Because the defendant in Peters was convicted at a trial that took place before the sixth amendment was incorporated into the due process clause of the fourteenth amendment, the Court could not rest its decision on sixth amendment grounds. Instead, the Court held that under the due process clause, a criminal defendant, whatever his race, would have standing to challenge the selection system for grand or petit juries if members of any race are arbitrarily excluded from service. Id. at 504, 92 S.Ct. at 2169. The Court reasoned:

It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system or how that jury would have decided the case. Consequently, it is necessary to decide on principle

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