United States v. Rosenthal, Crim. No. 79-1-AMER.

• Decision Date: 20 November 1979
• Docket Number: Crim. No. 79-1-AMER.
• Citation: 482 F. Supp. 867
• Parties: UNITED STATES of America v. Harold ROSENTHAL a/k/a Allyn Milton Karr, George Rawls a/k/a Howard Kenith Leigh, Jorge Luis Valdes, Oscar Rivera Nunez, Orlando Rengel, Sixto Granados Enriquez, Avoro Martin, Norman Downs, Howard "Sonny" Hawkins, Ned Ames, James Patrick Herman, Roger E. Beckman, Brian J. Brinker, James Sever, William D. "Bill" McCain, Leonard Bonnell Steele, Fredrick Francis Haussman, James Albert Costello, Henry Newton Coley, III, James Conway Trammell.
• Court: U.S. District Court — Middle District of Georgia

482 F. Supp. 867

UNITED STATES of America v. Harold ROSENTHAL a/k/a Allyn Milton Karr, George Rawls a/k/a Howard Kenith Leigh, Jorge Luis Valdes, Oscar Rivera Nunez, Orlando Rengel, Sixto Granados Enriquez, Avoro Martin, Norman Downs, Howard "Sonny" Hawkins, Ned Ames, James Patrick Herman, Roger E. Beckman, Brian J. Brinker, James Sever, William D. "Bill" McCain, Leonard Bonnell Steele, Fredrick Francis Haussman, James Albert Costello, Henry Newton Coley, III, James Conway Trammell.

Crim. No. 79-1-AMER.

United States District Court, M. D. Georgia, Americus Division.

November 20, 1979.

D. L. Rampey, Jr., U. S. Atty., Richard Nettum, Asst. U. S. Atty., Macon, Ga., for the U. S.

D. L. Middlebrooks, Jr., Pensacola, Fla., for Rosenthal.

Edward T. M. Garland, Atlanta, Ga., for Rawls.

Judith H. Mizner, Joseph S. Oteri, James William Lawson, Martin G. Weinberg, Oteri & Weinberg, Boston, Mass., Shelby Highsmith, Highsmith & Strauss, Miami, Fla., Brayton S. Dasher, Macon, Ga., for Valdes.

William V. Hall, Jr., Decatur, Ga., for Coley.

Jeffrey S. Weiner, Alan S. Ross, Weiner, Robbins, Tunkey & Ross, Miami, Fla., for Nunez.

R. David Botts, Harper, Wiggins & Botts, Atlanta, Ga., for Hawkins.

Don Wolff, Paul J. Passanante, Wolff, Frankel & Passanante, Clayton, Mo., for Herman.

Daniel V. O'Brien, St. Louis, Mo., for Brinker.

Robert A. Ciuffa, Daniel V. O'Brien, St. Louis, Mo., for Sever.

Paul M. Storment, Jr. Ltd., Belleville, Ill., for McCain.

S. Skip Taylor, Miami, Fla., Charles A. Murphy, Southfield, Mich., for Steele.

Robert C. Stone, Hollywood, Fla., for Haussman.

Claude W. Hicks, Jr., Macon, Ga., for Trammell.

Walter L. Brady, Jr., Robert J. O'Hanlon, Lee, O'Hanlon & Brady, St. Louis, Mo., for Beckman.

Albert M. Horne, Atlanta, Ga., for Ames.

OWENS, District Judge:

The defendants¹ George Rawls and Jorge Valdes first challenge the procedure by which grand jurors are selected in this court on the ground that the procedures do not assure that each county or similar political subdivision is substantially proportionally represented in the master jury wheel for the district or division. 28 U.S.C.A. § 1863(b)(3). They also allege that blacks, women and persons between the ages of 18 and 29 years are under-represented on the master and qualified wheels and consequently the procedures do not assure jury venires selected at random from a fair cross section of the community as required by the Sixth Amendment of the United States Constitution and the Jury Selection and Service Act of 1968, as amended, 28 U.S. C.A. §§ 1861, et seq.

The defendants were indicted by a grand jury of 23 persons, 17 or 73.9 percent of whom were white, 6 or 26.1 percent of whom were black, 14 or 61 percent of whom were men, and 9 or 39 percent of whom were women, for conspiracy to import into the United States and to distribute marihuana, cocaine, and other drugs. The grand jury consisted of four jurors from the Albany Division, three from the Americus Division, two from the Athens Division, two from the Columbus Division, eight from the Macon Division, three from the Thomasville Division and one from the Valdosta Division. The jurors were selected from a venire of 45 persons of whom 33 or 73.3 percent were white, 12 or 26.7 percent were black, 22 or 48.9 percent were men, and 23 or 51.1 percent were women.

A. THE SELECTION PROCESS

An insight into the methods of selecting grand and petit juries in this district is necessary to understand the issues involved. This district is composed of 70 of Georgia's 159 counties and is statutorily divided into seven divisions: Albany, Americus, Athens, Columbus, Macon, Thomasville and Valdosta. 28 U.S.C.A. § 90(b). Following the passage of the Jury Selection and Service Act of 1968, the active judges of this court adopted a plan for random jury selection (28 U.S.C.A. § 1863) and the plan and all amendments were approved by a Reviewing Panel comprised of judges of the Fifth Circuit Court of Appeals. A copy of the plan and amendments is attached hereto as Appendix I. The court, following the suggestion of Congress in 28 U.S.C.A. § 1863(b)(2), adopted the voter registration list of each county in the district as the source for prospective jurors and appointed the Clerk of the court as the supervisor of the plan.

As the plan operated in 1976 when the master and qualified jury wheels were constituted and as it presently operates according to its terms and the testimony of Clerk Walter F. Doyle, Sr. of this court, voter registration lists are obtained from each county every four years immediately following each presidential election. The present jury wheels were constituted after the November 1976 election. In order to obtain a sufficiently large master and qualified wheel, it was decided that the clerk would randomly select 2,500 names from each of the Albany, Americus, Athens, Thomasville, and Valdosta Divisions, and 5,000 names from each of the Columbus and Macon Divisons. These names were selected at random from the lists by use of a quotient obtained by dividing the total number of registered voters in the division by either 2,500 or 5,000. A starting number was selected at random from a range of numbers from one to the quotient numbers. Beginning with the starting number, the clerk or his designee counted down through the voter's list and designated each name corresponding to the starting number and the quotient. For example, in the Albany Division where the quotient was 26 and the starting number 12, the clerk selected the twelfth name on each county registered voter list for the Albany Division and selected every twenty-sixth name on the list following the starting number. The names so selected became the Master Jury Wheel. The clerk obtained the address for each person, had the name and address encoded on a Bibb County, Georgia, computer; the computer addressed the Juror Qualification Questionnaire forms;² and the clerk mailed the forms to each person. The questionnaire sought responses which would either qualify, disqualify, exempt, excuse, or exclude prospective jurors. The Act provides exemptions for persons in active military service, for members of a fire or police department, and federal, state, or local public officers actively engaged in performance of their duties. 28 U.S.C.A. § 1863(b)(6). In addition the plan provides five classes of individuals who may be excused if they so desire:

(1) ministers and members of religious orders;

(2) practicing attorneys, physicians, dentists, and registered nurses;

(3) anyone who has served on a federal grand or petit jury within the past two years; and

(4) women who have legal custody of a child or children under the age of 10 years; and

(5) persons over 70 years of age at the time of completion of the form or at the time they are called for service.

The questionnaires were either completed and returned, never returned or returned undeliverable by the Postal Service. From the responses to the completed questionnaires, the clerk or his designee determined those who were either qualified or statutorily disqualified, exempt or excused from service. The names of those who were qualified were encoded in the computer which printed out cards containing each person's name, address, occupation, age, sex, and race. These cards were placed in a box which became the Qualified Jury Wheel. It is from this wheel that grand and petit juries were and are being selected.

Under the plan grand juries are selected from the entire district. The plan provides that the clerk shall select a grand jury venire "by drawing a pro rata, or approximately pro rata, number of names at random from the qualified jury wheels of each division in the district." The clerk interpreted "pro rata" to mean that the number of names selected should be in proportion to the size of the master and qualified wheels so that the Macon and Columbus Divisions should have twice as many names in the grand jury venire as the other five divisions. The selection of the grand jury venires was conducted as follows: the qualified boxes from all seven divisions were gathered in open court and the clerk or his designee blindly drew one name each from the Albany, Americus, and Athens Divisions' boxes, two names from the Columbus and Macon Divisions, and one name each from the Thomasville and Valdosta Divisions so that nine names were selected. This process was done in rotation five times until 45 names were drawn — ten names each from Columbus and Macon and five names each from the other divisions. From this venire the first 23 names of those who had not been excused for hardship or removed because of death or other reasons were chosen by the court to serve as grand jurors.

Jurors for each division are selected randomly from the qualified box. The number of jurors for a particular venire is determined by the court and memorialized in an order to the clerk to draw that number of prospective jurors.

Beginning with the county registered voter lists the juror selection operates in a random and objective fashion. The defendants do not seriously question the random and objective operation of the plan nor have they presented evidence to show that any of the counties in this district discriminate against any group in voter registration or that any lists are presently unconstitutional or illegally drawn. The defendants rely solely on statistical disparity between the population of the district and divisions according to the 1970 census and the master and qualified wheels as drawn.

B. DEFENDANTS' ATTACK ON GRAND JURY SELECTION PROCEDURE

The defendants contend that the manner in which the grand juries are drawn does not assure that each county is "substantially proportionally represented" on the grand jury venires. 28 U.S.C.A. § 1863(b)(3).³ Defendants argue that some divisions and the counties encompassed in those divisions, are underrepresented and others overrepresented according to the number of...