United States v. Van Allen

Citation208 F. Supp. 331
PartiesUNITED STATES of America v. John VAN ALLEN et al., Defendants.
Decision Date21 August 1962
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Robert M. Morgenthau, U. S. Atty., for the Southern Dist. of New York, for United States, Arthur L. Liman, Asst. U. S. Atty., of counsel.

Albert J. Ahern, Jr., Washington, D. C., for defendant, Roy B. Kelly.

Blalock, Lohman & Blalock, Houston, Tex., for defendant, Cecil V. Hagen, Jack B. Blalock, Houston, Tex., Marvin B. Segal, New York City, of counsel.

Brinsmade & Schafrann, New York City, for defendant, Gulf Coast Leaseholds, Inc.

Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendants, Jules Bean and Singer, Bean & Mackie, Inc., Milton R. Wessel, Samuel Myers, Nathan Lewin, New York City, of counsel.

Thomas H. Casey, New York City, for defendants, Milton J. Shuck and M. J. Shuck Co.

CASHIN, District Judge.

Defendants move to dismiss the indictment in the instant case on the ground that improper selection of the Grand Jury denied them of their right to a representative Grand Jury. They also move to suppress all evidence taken by the Grand Jury together with all leads and clues derived therefrom.

The Court set this matter down for a hearing commencing on April 11, 1962. The defendants presented to the court eight witnesses, including William J. Borman, Deputy Clerk in charge of jurors for the Southern District of New York, several eminent educators and authorities in the fields of political science, sociological research, and statistical analysis of voting and registration trends throughout the United States, and others. The hearings, which continued for four court days, were completed on May 15, 1962, and resulted in a transcript of several hundreds of pages of testimony.

The Grand Jury which returned the indictment in the present case was impanelled on December 8, 1959. The indictment was filed on March 24, 1960.

The defendants' motion, directed to the selection of the Grand Jury returning the indictment, attacks primarily the custom in this district of utilizing voting registration lists as the main source to obtain names for the list of qualified jurors, from which list the Grand Jury in the instant case was selected. Defendants contend that such use of registration lists, and the other procedures followed by the officials in this district in drawing the Grand Jury, result in a violation of federal law (28 U.S.C. § 1861, as amended by the Civil Rights Act of 1957, 71 Stat. 638), in that such practices operate to systematically pass over and thereby exclude from jury service those who have failed to register. Since, it is claimed, those persons who fail to register are, more likely than not, members of the lower economic and social classes, the juries which result are allegedly atypical "blue ribbon" or "purified" juries which are unrepresentative of the general community. The defendants contend that the panels selected are weighted in favor of the wealthy, the professional and the well-educated, and as such the December 8, 1959 Grand Jury is an unlawfully constituted body.

The Southern District of New York is the busiest district in the nation. It is consequently expedient for it to maintain a very large pool of qualified prospective jurors from which the necessary talesmen may be summoned for service. The list of qualified jurors contains approximately 22,000 names. Due to the fact that many of the persons on the list subsequently move away, die, become ill, or become otherwise unavailable for jury duty, the list must be constantly filled anew. Prior to the addition of new persons to the pool of qualified jurors, it is necessary to have a preliminary examination at which time it is determined whether the individuals are capable of serving and whether they meet the statutory qualifications. Persons are summoned for such examination by the sending out of qualification notices through the mail. The names of the persons who are to receive these notices are generally chosen from the most recent presidential voting registration lists of the Counties of New York, Bronx and Westchester, New York. The Grand Jury of December 1959, which returned the indictment under attack in the instant case, was selected from a pool of names from the 1956 presidential registration lists for Manhattan and the Bronx, and the 1957 registration list for Westchester. In the case of Westchester County, the registration lists utilized were restricted to the area south of White Plains, nearest to New York City. This was properly done to avoid unnecessary expense to the government, and to prevent the harrassment of jurors by obliging them to travel excessively long distances to the courthouse from the remote areas in which they live. Report of the Judicial Conference Committee on the Operation of the Jury System, The Jury System in the Federal Courts, p. 13 (1960).

The Boards of Elections of Bronx and New York Counties prepare a list of registered voters for each assembly district, with registered voters being listed by election districts for each of the assembly districts. The registrants' names appear in parallel vertical columns on successive pages, listed by street address. A certain key number is selected at random, usually the number 5 or 10, and qualification notices are made out addressed to every 5th or 10th name on each of the columns for the assembly district. Eventually, all the assembly districts are covered in rotation, and the process is later repeated with a different number when more names are required. Selections are thus made by this random process from all parts of the counties. Basically the same procedure is followed with the wards and towns of Westchester County nearest to the City of New York.

These voting registration lists are the source from which approximately 95% of the prospective jurors are chosen. Miscellaneous sources, such as recommendations, and in some years telephone directories and real estate listings, account for the remaining small percentage, which since 1950 has never exceeded 5%.

All these names are placed on postal cards which are placed on file and sent out periodically as the need arises. They request the addressee, the prospective talesman, to appear on a certain day so that inquiry as to his qualification to serve may be made. The response to this notice is about 97%. If a prospective juror, upon being summoned to the courthouse and questioned by the jury clerk or one of his assistants, demonstrates his competence within the meaning of 28 U.S.C. § 1861, that prospective juror is deemed to be qualified. Those who appear personally at the jury office are preliminarily interviewed to uncover physical infirmities, exemptions, serious hardship or other reasons for disqualification. If the prospective juror at the outset of the interview discloses that he is exempt from jury service, or disqualified, or pleads that such service would cause physical or financial hardship upon him, he would not be "qualified". Those who are not thereby disqualified are required to answer a questionnaire. The questionnaire elicits no information concerning the juror's race, politics, religion, or social connections. If the interview and the questionnaire information indicate that the prospective juror is qualified, his name would be added to the active list of jurors. History cards and wheel cards are made out and are maintained on file in the clerk's office.

The Petit Jury wheel from which a panel of prospective petit jurors is drawn usually contains between 2,400 and 2,900 wheel cards, and the Grand Jury wheel between 600 and 700 cards. The names in the wheel comprise qualified jurors (1) taken from the file of those jurors whose last jury duty was more than two years ago, (2) who were called for service but excused three months previously, (3) who were marked for service in the particular month by a judge hearing excuses, and (4) those new jurors who qualified for service in the immediately preceding month. From this wheel 75 cards comprising the panel were drawn. Notices were sent to the 75 talesmen on the panel to appear for the drawing of the Grand Jury on December 8, 1959. The names of those 75 persons on the panel were placed in the wheel, and 23 names were drawn by lottery and sworn in to comprise the Grand Jury of that date.

I come first to the defendants' objection to the use of registration lists to select jurors. It should be noted that since there is no available list containing the names of all members of the population residing in this district, it would be possible to propound arguments against any source which is utilized for the selection of jurors. For example, it could be argued that the use of telephone directories would tend to exclude the poor, because as a class they would not be able to afford as many telephones as those in better financial circumstances. The same objection could also be made to the use of realty lists. Conversely, executives and professionals could object to the use of labor union membership lists.

It should be obvious that no system can be devised for obtaining a perfectly representative source of names of prospective jurors. This is especially true in the Southern District of New York, within the limits of which resides undoubtedly the most heterogeneous population in the nation, almost 5,000,000 people of every creed, color, national origin, economic status, and political and social background. It is therefore not necessary that every jury contain representatives of all groups of the community; indeed, it has been recognized that this would be impossible and undesirable. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); United States v. Flynn, 216 F.2d 354 (2 Cir. 1954), cert. den., 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955); Young v. United States, 94 U.S.App.D.C. 54, 212 F.2d 236, 238 (1954).

Congress has wisely not prescribed the use of any...

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    ...Leonetti, 291 F.Supp. 461, 476 (S.D.N.Y.1968); United States v. Dennis, 183 F.2d 201, 217-218 (2nd Cir. 1950); United States v. Van Allen, 208 F.Supp. 331, 336 (S.D.N.Y.1962). We conclude, in sum, that petitioner's arguments about the character of the grand jury are — singly in some instanc......
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