US v. Douglas

• Decision Date: 07 October 1993
• Docket Number: Civ. A. No. 4:92-CR-141-Y.
• Parties: UNITED STATES of America v. Edd C. DOUGLAS, Eddie Franklin Douglas, Elbert Douglas, Jr., Arthur Jackson Douglas, Wesley James Wilson, Cynthia Tamplin, Altonio Oshea Douglas, Orpheus Hill, Burvon King, Jr., Mary Jane Fike, Chauncey Mosley, and James Weldon Campbell.
• Court: U.S. District Court — Northern District of Texas

837 F. Supp. 817

UNITED STATES of America v. Edd C. DOUGLAS, Eddie Franklin Douglas, Elbert Douglas, Jr., Arthur Jackson Douglas, Wesley James Wilson, Cynthia Tamplin, Altonio Oshea Douglas, Orpheus Hill, Burvon King, Jr., Mary Jane Fike, Chauncey Mosley, and James Weldon Campbell.

Civ. A. No. 4:92-CR-141-Y.

United States District Court, N.D. Texas, Fort Worth Division.

October 7, 1993.

COPYRIGHT MATERIAL OMITTED

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J. Michael Worley, Paul E. Gartner, Jr., Fort Worth, TX, for U.S.

Charles Friedman, Fort Worth, TX, for defendant Edd C. Douglas.

Gerald Goldstein, Cynthia Orr, San Antonio, TX, and John Linebarger (local counsel), Fort Worth, TX, for defendant Eddie Franklin Douglas.

William Ray, Fort Worth, TX, for defendant Elbert Douglas, Jr.

John Sweeney, Fort Worth, TX, for defendant Arthur Jackson Douglas.

Bryan Buchanan, Fort Worth, TX, for defendant Wesley James Wilson.

Leon Haley, Jr. (indictment through trial), and Louis Sturns (motion to dismiss), Fort Worth, TX, for defendant Cynthia Tamplin.

Don Gandy, Fort Worth, TX, for defendant Altonio Oshea Douglas.

Michael Berg, Fort Worth, TX, for defendant Orpheous Hill.

Michael Ware, Fort Worth, TX, for defendant Burvon King.

Richard Alley, Fort Worth, TX, for defendant Mary Jane Fike.

Bill Chambers, Fort Worth, TX, for defendant Chauncey Mosley.

Michael Heiskell, Fort Worth, TX, for defendant James Weldon Campbell.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS THE INDICTMENT PURSUANT TO 28 U.S.C. § 1861, ET SEQ.

MEANS, District Judge.

Pending before the Court is defendant Eddie Franklin Douglas's Motion to Dismiss the Indictment Pursuant to 28 U.S.C. § 1861, et seq., and for Discovery Concerning Jury Selection Pursuant to 28 U.S.C. § 1867(f), which was filed in the above-styled and numbered cause on August 13, 1993.¹ Prior to the filing of the motion, Defendant examined the jury clerk's records pursuant to § 1867(f), and to the extent that Defendant's motion requests discovery of those records,² it should be and is hereby RENDERED MOOT. A hearing was held regarding the motion to dismiss on September 1, 1993. After careful consideration of that portion of the motion, the response thereto, the evidence adduced at the hearing, and the applicable law, the Court finds that the motion lacks merit and should be denied.

Defendant's motion alleges that his constitutional rights were violated because the venire in this cause did not represent a fair cross section of the community.³ Specifically, Defendant argues that African-Americans were underrepresented on the panel. Defendant also complains that the alleged underrepresentation constituted a violation of his right to equal protection. Finally, Defendant argues that the method employed to select Defendant's venire violated this Court's Jury Plan and the Jury Selection and Service Act of 1968. See 28 U.S.C.A. §§ 1861-78 (West. 1966 & Supp.1993). The Court will address each of Defendant's arguments in turn.

I. ALLEGED CONSTITUTIONAL VIOLATIONS

As indicated, Defendant insists that his venire was not drawn from a fair cross section of the community. Defendant further alleges that his rights under the equal protection clause were violated by substantial underrepresentation of African-Americans on the venire. After careful consideration of each of these arguments, the Court finds that they lack merit.

A. Fair Cross Section Violation

1. Legal Framework

In order to prove, prima facie, a fair cross section violation,

the defendant must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); see also United States v. Hawkins, 661 F.2d 436, 442 (5th Cir.1981) (quoting Duren), cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982). Defendant need not show purposeful discrimination in order to establish a fair cross section violation; if the method of jury selection used results in systematic discrimination against a cognizable group, a violation is shown. Duren, 439 U.S. at 368 n. 26, 99 S.Ct. at 670 n. 26. Once the defendant demonstrates a prima facie case, the government must point to "a significant state interest that is manifestly and primarily advanced by those aspects of the jury selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group." Id. at 367-68, 99 S.Ct. at 670-71.

2. Analysis

After careful review of the evidence presented at the hearing, the Court finds that Defendant has failed to set forth, prima facie, a fair cross section violation. Defendant established the first requisite of a prima facie case, as there is no question that the group which he contends has been underrepresented, namely African-Americans, is a distinct group in the community. The evidence adduced at the hearing further establishes, however, that African-Americans have been fairly and reasonably represented on venires in the Fort Worth division.

In support of his claims, Defendant presented evidence that the African-American population in the Fort Worth division is approximately 10.4103 percent.⁴ That figure, which represents the percentage of African-Americans in the gross population of the division, is irrelevant for Sixth Amendment purposes, however, as the pertinent community for a fair cross section analysis is the pool of African-Americans in the division "who are eligible to serve as jurors." United States v. Brummitt, 665 F.2d 521, 529 (5th Cir.1981), cert. denied, 456 U.S. 977, 102 S.Ct. 2244, 72 L.Ed.2d 852 (1982); see also United States v. Apodaca, 666 F.2d 89, 92-93 (5th Cir.) (holding that the defendant failed to establish a prima facie case where he only introduced evidence regarding the percentage of blacks in the gross population rather than the percentage of blacks in the population that were eligible to serve), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 58 (1982).

Defendant also presented evidence, however, that in a sampling undertaken by the Administrative Office of the United States, ten percent of the qualified jurors who were "sampled" were African-American.⁵ Over the thirteen-month period preceding the selection of the venire in Defendant's case, African-Americans represented 7.66 percent of those persons summoned to serve. Thus, the difference between the percentage of those qualified to serve on venires and those who actually were summoned to serve on them is only 2.34 percent. Such a disparity certainly falls within the permissible parameters and therefore fails to establish, prima facie, a fair cross section violation. See Duren, 439 U.S. at 362, 366-67, 99 S.Ct. at 667 (finding that a prima facie case of a fair cross section violation had been established when the evidence presented demonstrated a 39.5 percent underrepresentation); Hawkins, 661 F.2d at 442 (holding that a 5.45 percent underrepresentation "falls well within the limits set forth by the Supreme Court and in this Circuit").

B. Equal Protection Violation

1. Legal Framework

In order to make out the prima facie case of racial discrimination necessary to demonstrate an equal protection violation, the defendant must show that he is a member of a racial group capable of being singled out for differential treatment and that the government has purposefully discriminated against his racial group in the jury selection process. See Batson v. Kentucky, 476 U.S. 79, 94-95, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986); Duren, 439 U.S. at 368 n. 26, 99 S.Ct. at 670 n. 26; Castaneda v. Partida, 430 U.S. 482, 493-95, 97 S.Ct. 1272, 1279-81, 51 L.Ed.2d 498 (1977). Purposeful discrimination can be shown by proving that "in the particular jurisdiction members of the defendant's race have not been summoned for jury service over an extended period of time." Batson, 476 U.S. at 94, 106 S.Ct. at 1721. Because the issue is purposeful discrimination, however, a showing of absolute exclusion is not the only means by which a prima facie case can be established. Instead, Defendant may show that "members of his race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing `the opportunity for discrimination.'" Id. at 95, 106 S.Ct. at 1722 (quoting Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967)); see also Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280. Thus, the difference between a fair cross section violation and an equal protection violation is that with the former, the systematic underrepresentation, if sufficiently significant, proves the violation, whereas for the latter, the substantial underrepresentation, whether systematic or not, must have been caused by purposeful discrimination in order for a violation to be demonstrated. Once a prima facie case has been made,

the burden shifts to the State to explain adequately the racial exclusion.... The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties.... Rather, the State must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result."

Batson, 476 U.S. at 94, 106 S.Ct. at 1721 (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972)).

2. Analysis

Again, Defendant has satisfied the initial requirement for proving an equal protection violation: he is an African-American, and African-Americans constitute a cognizable group for equal protection purposes. Clearly, however,...