United States v. Ramos Colon

• Decision Date: 16 March 1976
• Docket Number: Crim. No. 74-213.
• Citation: 415 F. Supp. 459
• Parties: UNITED STATES of America v. Delfin RAMOS COLON.
• Court: U.S. District Court — District of Puerto Rico

415 F. Supp. 459

UNITED STATES of America v. Delfin RAMOS COLON.

Crim. No. 74-213.

United States District Court, D. Puerto Rico.

March 16, 1976.

Julio Morales Sanchez, U. S. Atty., D. Puerto Rico, Jose A. Quiles, Asst. U. S. Atty., D. Puerto Rico, San Juan, P. R., for plaintiff.

Ludmilia Rivera, Juan Mari Bras and H. Schaap, Rio Piedras, P. R., for defendant.

Before TOLEDO, Chief Judge, and TORRUELLA and PESQUERA, District Judges.

OPINION AND ORDER

TORRUELLA, District Judge.

Defendant has filed a Motion to Dismiss the Indictment and Strike the Petit Jury Array. In substance Defendant contends that the composition of the jury in this District violates 28 U.S.C. § 1861 et seq. and the Fifth and Sixth Amendments of the Constitution of the United States, because it is claimed that in Puerto Rico the English language requirements of 28 U.S.C. § 1865¹ result in jury panels which are not a "fair cross section of the community in this District."² Therefore, it is argued, Defendant is being held accountable in a felony offense by reason of an indictment returned by a grand jury, and is being tried before a petit jury, which are unrepresentative of the citizens of this community, all in violation of due process of law. A related but separate contention alleges that the procedures used in this District do not sufficiently guarantee that those jurors now serving in the pool be sufficiently competent in English to meet the mentioned statutory and constitutional requirements.

On this last question, Defendant has requested that the Court authorize giving all jurors in the pool, what is labeled by counsel "objective, standardized oral and written tests of English understanding" to determine the competency of jurors. On the first issue we are further asked "for a hearing pursuant to 28 U.S.C. § 1867(a), (d) and (f)", at which hearing it is requested that evidence be also allowed on the results of the proposed competency examination.

I.

Our departure point is thus to determine whether Defendant is entitled to a hearing under 28 U.S.C. § 1867.

The relevant sections of that Statute read as follows:

"(d) Upon motion filed under subsection (a), . . . of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. . . ."

We are thus required to analyze the sworn statement filed in support of the Motion to determine whether the facts alleged therein constitute a substantial failure to comply with 28 U.S.C. § 1861 et seq. To this effect we will accept the factual allegations as true, keeping in mind however that the burden is on Defendant to prove non-compliance with the statute. U. S. v. Smaldone, 485 F.2d 1333 (CA 10, 1973), cert. den. 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974), reh. den. 416 U.S. 1000, 94 S.Ct. 2414, 40 L.Ed.2d 777 (1974), reh. den. 417 U.S. 926, 94 S.Ct. 2635, 41 L.Ed.2d 230 (1974).

The supporting affidavit presented herein is a copy of one filed in the case of United States v. Union Nacional de Trabajadores et al, Crim.No. 164-73, which was before Chief Judge José V. Toledo of this District. In that case counsel for those Defendants, who are substantially the same defense counsel as in the present case, were allowed access and permitted to copy the juror qualification questionnaires. These are still available to counsel in the present case, and the information contained therein forms the basis for that affidavit.

The relevant highlights of that sworn statement are as follows:

The juror qualification questionnaires were mailed to prospective jurors drawn from the master jury wheel in 1973 and 1975. The master jury wheel contains all the names drawn from the voter registration lists as provided by the "Amended Plan for the Random Selection of Grand and Petit Jurors", prepared pursuant to 28 U.S.C. § 1861 et seq.

Out of 11,012 questionnaires sent out to persons drawn from the master jury wheel, 6,750 were either not returned or not delivered. Of the 4,262 questionnaires that were returned, 171 persons survived the English literacy requirement but were otherwise exempt from jury duty, and 569 persons were fully qualified to serve as jurors and have served or are available to serve as jurors. Of the returned questionnaires, 3522 were disqualified for insufficient English, which number constitutes 83% of the returned forms.

Based on these statistics, and the affidavit's own definition of "classes" in Puerto Rico,³ it is stated that the qualified jury pool is composed of 91.2% "upper class", 54.4% "middle class", and 9.7% "lower class" citizens as compared to 12.1%, 25.9% and 62%, respectively, for those same classifications in the total Puerto Rican population.

Further statistics in the affidavit show that even under Defendant's "class" definitions, all "classes" are represented in the jury panel, although admittedly not in the same proportion as are claimed exist in the total population. It is alleged that this under-representation of the "lower classes" results "almost exclusively from the English language requirement"⁴ which eliminates 90.3% of the "lower class" persons who return questionnaires, as compared to 41.1% eliminated from the "middle class" and 8.8% from "higher class."

The affiant also states that the questionnaires reveal that non-whites constitute only 11% of the qualified jury pool as compared with 20.2% of non-whites in the census population. It is again concluded . . "that the English literacy is disproportionately responsible for disqualification of non-whites as compared to whites." . . .⁵

Lastly, it is stated that "on the basis of inspection of the questionnaires and certain extrinsic information available to Defendants it is further alleged that the jury selection process has deliberately excluded, exempted or disqualified persons whose political views are antagonistic to the United States."

Defendant's contentions are thus reduced to a claim that the English language requirement causes substantial underrepresentation of (a) persons in "lower classes" and (b) persons who are "nonwhite", and that there is deliberate exclusion of those whose views are known to be antagonistic to the United States.

Under the circumstances in which it is raised, we consider this last allegation to be of the "red herring" variety. It is conclusionary and totally unsupported by any facts, and therefore fails to meet the muster of 28 U.S.C. § 1867(d). Thus, we are not required to give this contention any further attention herein.⁶

Turning now to the claimed underrepresentation caused by the English language requirements, let us analyze whether the factual allegations in the affidavit "constitute a substantial failure to comply with the provisions of this title 28 U.S.C. 1861 et seq.."

In looking at the declaration of policy contained in 28 U.S.C. § 1861 we find that it requires that grand and petit juries be "selected at random from a fair cross section of the community" and that "all citizens . . . have the opportunity to be considered for service." This does not mean that precise proportional representation of any particular group is required on the grand or petit panel, U. S. v. Jenkins, 496 F.2d 57 (CA 2, 1974), cert. den. 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); U. S. v. Ross, 468 F.2d 1213 (CA 9, 1972), cert. den. 410 U. S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); U. S. v. Greene, 160 U.S.App. D.C. 21, 489 F.2d 1145 (1973), cert. den. 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1974), reh. den. 419 U.S. 1041, 95 S.Ct. 530, 42 L.Ed.2d 318 (1974), but rather that the group from which they are selected be taken by chance (i.e., at random), from the community. As stated in the supporting affidavit, this was done in this case from the master jury wheel using the voter registration lists and thus, there is compliance with 28 U.S.C. §§ 1963 and 1864, U. S. v. King, 492 F.2d 895 (CA 8, 1974); U. S. v. Whitley, 491 F.2d 1248 (CA 8, 1974), cert. den. 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974); Hallman v. U. S., 490 F.2d 1088 (CA 8, 1973); U. S. v. Dellinger, 472 F.2d 340 (CA 7, 1972), cert. den. 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); U. S. v. Ross, 468 F.2d 1213 (CA 9, 1972), cert. den. 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); U. S. v. McDaniels, 370 F.Supp. 298 (E.D.La.,1973), aff'd sub nom. U. S. v. Goff, 509 F.2d 825 (CA 5, 1975); U. S. v. Kuhn, 441 F.2d 179 (CA 5, 1971); U. S. v. James, 453 F.2d 27 (CA 9, 1971); U. S. v. Arnett, 342 F.Supp. 1255 (D.C.Mass.,1970). There is no allegation or proof that this initial source list does not accurately represent the make-up of the community. It is this initial source that is intended to be protected by this statute. See U. S. Code Congressional and Administrative News, Vol. 2, 90th Congress, 2nd Session, 1968, p. 1794. U. S. v. Davis, 518 F.2d 81 (CA 10, 1975), cf. Rabinowitz v. U. S., 366 F.2d 34 (CA 5, 1966); U. S. v. Fernández, 480 F.2d 726 (CA 2, 1973); U. S. v. Guzmán, 468 F.2d 1245 (CA 2, 1972), cert. den. 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).

The statement of policy to the effect that all citizens be granted an opportunity to be considered for jury duty we understand to mean that individuals will be considered but can only serve if they also meet the qualification requirements for jury service contained in 28 U.S.C. § 1865. U. S. v. Torquato, 308 F.Supp. 288 (W.D.Pa., 1969). See U.S. Code Congressional and Administrative News, supra, at page 1798. Among those requirements are precisely the English language proficiency which Defendant claims brings about the alleged underrepresentation. Consequently it can not be...