US v. Levasseur, Crim. A. No. 86-180-Y.

• Decision Date: 05 January 1989
• Docket Number: Crim. A. No. 86-180-Y.
• Parties: UNITED STATES of America v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Barbara J. Curzi-Laaman, Richard Charles Williams.
• Court: U.S. District Court — District of Massachusetts

704 F. Supp. 1158

UNITED STATES of America v. Raymond Luc LEVASSEUR, Patricia Gros Levasseur, Barbara J. Curzi-Laaman, Richard Charles Williams.

Crim. A. No. 86-180-Y.

United States District Court, D. Massachusetts.

January 5, 1989.

COPYRIGHT MATERIAL OMITTED

Robert Mueller, Washington, D.C., Michael Loucks, Boston, Mass., and William D. Braun, Washington, D.C., for U.S.

Peter Avenia, Gombiner & Avenia, New York City, for Raymond Luc Levasseur.

Owen Walker, Boston, Mass., William Newman, Northampton, Mass., Lewis Gerwitz, Winthrop, Mass., and Elizabeth Fink, Brooklyn, N.Y., for Patricia Helen Gros.

Kenneth King, Jamaica Plain, Mass., William M. Kunstler, New York City, Elizabeth O'Connor Tomlinson, Buckingham, Pa., Ronald L. Kuby, New York City, for Thomas William Manning.

Elizabeth Fink, Brooklyn, N.Y., for Carol Ann Manning.

Steven Schlang, Northampton, Mass., Daniel Meyers, New York City, for Jaan Karl Laaman.

Linda Thompson, Springfield, Mass., for Barbara J. Curzi.

Robert J. Boyle, Brooklyn, N.Y., for Richard Charles Williams.

Barry P. Wilson, Wilson & Schneider, Boston, Mass., for Christopher Everett King.

MEMORANDUM AND ORDER ON VARIOUS PRE-TRIAL MOTIONS

YOUNG, District Judge.

The four defendants in this action are charged with violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. sec. 1962(c), conspiracy to commit such violations, 18 U.S.C. sec. 1962(d), and seditious conspiracy, 18 U.S.C. sec. 2384. A variety of pre-trial motions have been heard by the Court. Certain of these motions warrant written opinions. These are set forth herein. The orders which do not, in the Court's view, require written exposition are set out in the Appendix following this opinion.

I. The Challenge to the Venire

The defendants brought this motion to dismiss the jury pool, or alternatively, to reconstitute the pool through supplementation of the jury list on the grounds that the jury selection system employed by the Western Division of United States District Court for the District of Massachusetts (the "Western Division") violates their Fifth Amendment right to due process, their Sixth Amendment right to a fair trial, and the Jury Selection and Service Act of 1968, 28 U.S.C. secs. 1861 et seq. (the "Jury Selection Act").¹ Specifically, the defendants allege that the selection process results in a substantial underrepresentation of Blacks and Hispanics in the jury pool.

A. Juror Selection in the Western Division.

The selection of jurors for the Western Division is governed by the Plan for Random Selection of Jurors adopted by the United States District Court for the District of Massachusetts in 1980 and modified in 1986. Under the present plan, the Western Division draws jurors from Berkshire, Franklin, Hampden and Hampshire counties.² Prior to the 1986 modification, the Western Division also drew jurors from certain cities and towns in Worcester County.

The court randomly selects names from registered voter lists to establish an initial pool, termed the Master Jury Wheel. The Clerk selects, as necessary and at random, groups of potential jurors from the Master Jury Wheel. Each potential juror is sent a juror qualification questionnaire, which is reviewed by a judge to determine if that individual is qualified to serve. Those potential jurors deemed qualified, non-exempt,³ and unexcused⁴ form the Qualified Jury Wheel from which individuals will actually be called to serve on petit and grand juries.

B. Alleged Underrepresentation in the 1984 Qualified Jury Wheel.

The defendants presented the Court with data from the 1984 Qualified Jury Wheel Pool. That pool consisted of 2369 persons of whom 46 (1.94%) were Black and 22 (0.93%) were Hispanic, for a total Black and Hispanic representation of 2.87%. The 1986 Commonwealth of Massachusetts figures, for the cities and towns of the five counties from which the Western Division's jurors were drawn in 1984, reveal that 5.77% of the total population is Black or Hispanic.⁵ The government criticizes the defendants' statistics, first noting that this data is more than three years old. Moreover, the government argues, because the defendants studied the Qualified Jury Wheel rather than the Master Jury Wheel, any discrepancy may simply be the result of either a higher incidence of failure to return juror questionnaires or a higher incidence of legitimate disqualification among Blacks and Hispanics, not the result of underrepresentative voter lists.

This Court is satisfied with the figures proffered by the defendants, as corrected,⁶ for the purpose of its analysis. This Court has no evidence before it nor any reason to believe that the demographics of the voter registration lists in the Western Division have changed appreciably in this short period of time. Nor does this Court have any evidence or any reason to believe that any underrepresentation of Blacks or Hispanics, results from any failure on their part to return juror questionnaires or to be qualified by the screening judge.

C. Analysis Under Hafen.

Although this Court might reach a different conclusion were this a matter of first impression, the First Circuit's decision in United States v. Hafen, 726 F.2d 21 (1st Cir.1984), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984) — a case involving Sixth Amendment and Jury Selection Act challenges to the Eastern Division's plan — is controlling. The Hafen court held first that a defendant who challenges jury composition must pass a three-part test:

In order to establish a prima facie violation of the fair-cross-section requirement, 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.

Hafen, 726 F.2d at 23 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 1979).

The defendants satisfy the first prong of the Duren test: Blacks are a distinctive group for the purpose of a jury composition challenge, see Peters v. Kiff, 407 U.S. 493, 498-99, 92 S.Ct. 2163, 2166, 33 L.Ed.2d 83 (1972); Anaya v. Hansen, 781 F.2d 1, 6 (1st Cir.1986), as are Hispanics, see People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433 (1984) (plurality opinion), cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984); cf. Hernandez v. Texas, 347 U.S. 475, 479-80, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954) (holding that Mexican-Americans are a distinct class for the purpose of a jury composition challenge brought under the Fourteenth Amendment equal protection clause). However, under Hafen the defendants founder on the second point. The defendant in Hafen alleged that the selection process employed by the Eastern Division resulted in the underrepresentation of Blacks. The First Circuit employed an absolute disparity test in which the percentage of individuals who identified themselves as Black on the juror qualification form (1.71%) was subtracted from the percentage of the population of the Eastern District aged 18 and over that was Black (3.73%). The court's calculation resulted in an absolute disparity of 2.02% (3.73%—1.71%), a disparity that the court found did not satisfy the defendant's burden of showing underrepresentation. Hafen, 726 F.2d at 23-24.

The absolute disparity revealed by the defendants' figures in the instant matter is not sufficiently dissimilar to distinguish their case. The absolute disparity in the figures from the 1984 Qualified Jury Wheel is 2.90% (5.77%—2.87%). Given that the court cited decisions in other circuits approving absolute disparities as high as 10%, id. at 23, this Court concludes that, under Hafen, the absolute disparities alleged by the defendants are insufficient to establish that Blacks and Hispanics are underrepresented in the venires from which jurors are selected in the Western Division.

However, as Judge Selya is fond of saying, "Death and taxes, arguably, may be certain; statistics, though often a valuable predictive aid, usually are not." Reilly v. United States, 863 F.2d 149, 167 (1st Cir. 1988); Chang v. University of Rhode Island, 554 F.Supp. 1203, 1206 (D.R.I.1983) (same).

The defendants assert that a comparative disparity analysis rather than an absolute disparity analysis is more appropriate here. This analysis would focus on the percentage difference between the proportion of Blacks and Hispanics in the general population (5.77%) and the shortfall in Black and Hispanic representation (5.77% - 2.87% = 2.90%), demonstrated formulaically as follows:

group's proportion - group's proportion of population of jury pool × 100 __________________________________________ group's proportion of population In this case, the comparative disparity is 5.77% - 2.87% × 100 = 50.3% __________________ 5.77%

There is much to commend this approach. What under an absolute disparity test appears to be a small disparity, 2.90%, is revealed to have a substantial impact on Black and Hispanic representation on juries in the Western Division. Especially in such cases as this one where the distinctive group is significant yet small,⁷ only a comparative disparity analysis will afford sufficient protection to defendants' right to be tried by a cross-section of the community. Here, the comparative disparity of 50.3% indicates that Black and Hispanic representation on juries is less than half of what their proportion of the population suggests it should be.

While it does not rise to the level of a constitutional or statutory violation, the Court considers the fact that there is a 50.3% comparative disparity especially troubling for two reasons. First, it substantially impacts the right of Blacks and Hispanics to participate fully in the public...