United States v. Zirpolo, 18137-18142.

• Decision Date: 19 February 1971
• Docket Number: No. 18137-18142.,18137-18142.
• Citation: 450 F.2d 424
• Parties: UNITED STATES of America v. Walter ZIRPOLO, Robert E. Jacks, Colonial Pipeline Company, Karl T. Feldman, Glenn H. Giles, Ben D. Leuty, Rowland Tompkins Corporation, Bechtel Corporation, Gates Construction Corporation, Gates Equipment Corporation. Appeal of Robert E. JACKS, in No. 18137. Appeal of COLONIAL PIPELINE COMPANY, in No. 18138. Appeal of Karl T. FELDMAN, in No. 18139. Appeal of Ben D. LEUTY, in No. 18140. Appeal of ROWLAND TOMPKINS CORPORATION, in No. 18141. Appeal of BECHTEL CORPORATION, in No. 18142.
• Court: U.S. Court of Appeals — Third Circuit

450 F.2d 424 (1971)

UNITED STATES of America v. Walter ZIRPOLO, Robert E. Jacks, Colonial Pipeline Company, Karl T. Feldman, Glenn H. Giles, Ben D. Leuty, Rowland Tompkins Corporation, Bechtel Corporation, Gates Construction Corporation, Gates Equipment Corporation Appeal of Robert E. JACKS, in No. 18137 Appeal of COLONIAL PIPELINE COMPANY, in No. 18138 Appeal of Karl T. FELDMAN, in No. 18139 Appeal of Ben D. LEUTY, in No. 18140. Appeal of ROWLAND TOMPKINS CORPORATION, in No. 18141. Appeal of BECHTEL CORPORATION, in No. 18142.

Nos. 18137-18142.

United States Court of Appeals, Third Circuit.

Argued December 3, 1970.

Decided February 19, 1971.

Rehearing Denied July 1, 1971.

John E. Toolan, Toolan, Romond & Burgess, Perth Amboy, N. J., for Robert E. Jacks.

Warren W. Wilentz, Wilentz, Goldman & Spitzer, Perth Amboy, N. J., for Colonial Pipeline Co. (Jack Vickrey, Atlanta, Ga., Frederic K. Becker, Harold A. Kuskin, Perth Amboy, N. J., on the brief).

Adrian M. Foley, Jr., Pindar, Mc-Elroy, Connell, Foley & Geiser, Newark, N. J., for Karl T. Feldman (Kenneth F. Kunzman, Newark, N. J., on the brief).

Simon H. Rifkind, Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, for Ben D. Leuty (Paul J. Newlon, Jay Greenfield, John J. Barry, Alan L. Schlosser, New York City, on the brief).

Joseph E. Brill and Arthur P. Lawler, New York City, for Rowland Tompkins Corp. (John L. Pollok, New York City, on the brief.)

Paul Haerle, San Francisco, Cal., Shanley & Fisher, Newark, N. J., for Bechtel Corp. (Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., on the brief).

Sidney M. Glazer, Atty., Criminal Division, U. S. Dept. of Justice, Washington, D. C. (Will Wilson, Asst. Atty. Gen., on the brief), for appellee.

Before KALODNER, SEITZ^* and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

A federal grand jury in Newark, New Jersey, returned a nine-count indictment charging two conspiracies and seven substantive violations of 18 U.S.C. § 1952.¹ The indictment became the target of more than 40 pretrial defense motions, one of which sought dismissal on the basis of alleged systematic exclusion of and discrimination against women in compiling the grand jury lists. The district court denied this motion, United States v. Zirpolo, 288 F.Supp. 993, 1014 (D.N.J.1968), on the strength of its prior decision in United States v. American Oil Co., 286 F.Supp. 742, 745 (D.N.J.1968):

"There has been no showing of any exclusionary procedure directed at a cognizable class forming a component of a fair cross-section of the community. Both men and women are represented in substantial numbers on all jury lists, even if disproportionately."

Though several grounds for reversal are assigned in these appeals, we address ourselves solely to the contention that the procedure utilized in the selection of the grand jury which returned the indictment is violative of federal law.

The procedure for grand jury selection in the District of New Jersey, Newark vicinage,² at the time in question is not in dispute. As set forth in the brief of appellant Colonial Pipeline Company, and accepted by the government:

The clerk of the court maintains on file cards approximately 10,000 names collected from voter registration and organization membership lists of nine counties in the Newark area. The cards are segregated, within each county, by sex. When directed by the Court to draw a panel of grand jurors, the jury official proceeds as follows:

a. 350 names are taken from the segregated file drawers by county and sex in order to provide the following distribution of potential grand jurors * * * Men, 246; Women, 104.

b. The 350 cards are shuffled and deposited into the jury wheel.

c. From the jury wheel, 100 names (in the case of a regular grand jury) or 125 names (in the case of a special grand jury) are then drawn by the jury commissioner and the deputy clerk, and a typewritten list prepared showing the names in the order drawn. The persons are then summoned to appear for jury duty.

It is conceded that women comprise approximately 52.5 percent of the New Jersey population over 21 years of age.

In selecting the grand jury which returned the instant indictment, the names of 93 men (74.4 percent) and 32 women (25.6 percent) were drawn; 51 men and 20 women were excused, resulting in a revised grand jury panel of 42 men and 12 women. The actual grand jury was composed of the first 23 persons—of whom 5 were women—whose names remained after striking the names of those excused or unavailable.

Although this is the first time this selection procedure has been before us for review, the practice was the subject of exhaustive treatment by the New Jersey District Court in United States v. American Oil Co., supra. See also 249 F.Supp. 130 (D.N.J.1965), 253 F.Supp. 783 (D.N.J.1966). One explanation for the procedure was offered:

The Clerk of this Court has explained that the same general pattern is disclosed in the selection of grand and petit jurors, and that the panels drawn are initially weighted in favor of men. The object of this practice is stated to be not to exclude or limit women from participating on juries, but to achieve a better balance of men and women on juries in the light of the experience, over a period of at least 24 years, that more men than women request to be and are, for valid reasons, excused from jury service.

249 F.Supp. at 132.

Assuming that a weighted balance between the sexes was the objective of this unusual practice, we note that the aggregate statistics of the twenty regular and special grand jury panels drawn from April, 1958, through February, 1966, showed more women, 63.3 percent, requesting excuses than men, 50.2 percent, resulting in revised jury panels in the proportion of 76.6 percent men and 23.4 percent women.³ Moreover, a review of the history of the selection procedure supports an alternate conclusion that there was never any rational explanation for the practice and that, "like Topsy, it just grew."⁴ Indeed, interviews in 1966 with veteran federal judges, including members of this court, disclosed no recollection of how the practice of disproportional representation originated.⁵

The government suggests that appellants may not be heard to complain without proof of prejudice. But the Supreme Court has heretofore disposed of the contention that prejudice must be demonstrated. In Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181 (1946), it stated:

But reversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U.S. 128 61 S.Ct. 164, 85 L.Ed. 84, or an economic or social class, Thiel v. Southern Pacific Co., supra 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 deprives the jury system of the broad base it was designed by Congress to have in our democratic society. It is a departure from the statutory scheme * * * The injury is not limited to the defendant— there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.

Conceding that a total exclusion of women, condemned in Ballard, would have invalidated the indictment, the government presses the argument enunciated in United States v. American Oil Co., supra, and relied upon by the court below, that a percentage exclusion of qualified females is not unlawful.

Basic tenets of our common law, as well as the provisions of the federal grand jury statutes, compel us to reject this conclusion. It has been a tradition in our law that a "proper jury * * * developed in harmony with our basic concepts of a democratic society and a representative government * * * must be a body truly representative of the community. Smith v. Texas, 311 U. S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84." Glasser v. United States, supra, 315 U.S. at 85, 62 S.Ct. at 472. The insistence that the jury be "drawn from a cross-section of the community" is a uniquely "American tradition," Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); the English "limitations * * * in the historical common law concept of the jury as a body of one's peers do not prevail in this country." Glasser, supra, 315 U.S. at 85, 62 S.Ct. at 472. And, although we cannot guarantee that the jury as finally selected will truly reflect this democratic standard, we do require that prospective jurors be selected "without systematic and intentional exclusion" of any group. Thiel, supra.

Whether the exclusion be total, as in Ballard, or only partial, as here, in denying representation to a substantial percentage of women, the ultimate objective of achieving a true cross-section of the community is ill-served. Any deliberate interference — irrespective of purpose⁶—with a random jury selection from a list of all qualified citizens cripples the cross-section ideal.⁷ In Thiel, supra, invalidating a verdict in a civil action because day laborers were excluded from a federal jury panel, the Court cautioned:

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographic groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and

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