US v. Yonkers Contracting Co., Inc., 87 Cr. 0559 (GLG).

• Decision Date: 28 March 1988
• Docket Number: No. 87 Cr. 0559 (GLG).,87 Cr. 0559 (GLG).
• Citation: 682 F. Supp. 757
• Parties: UNITED STATES of America, v. YONKERS CONTRACTING COMPANY, INC.; Maybrook Industries, Inc.; Sullivan Highway Products, Inc.; Dutchess Quarry & Supply Co., Inc.; Edward J. Petrillo, Jr.; Nicholas F. Badami; Patrick W. Reardon; and Edmund V. Caplicki, Defendants.
• Court: U.S. District Court — Southern District of New York

682 F. Supp. 757

UNITED STATES of America, v. YONKERS CONTRACTING COMPANY, INC.; Maybrook Industries, Inc.; Sullivan Highway Products, Inc.; Dutchess Quarry & Supply Co., Inc.; Edward J. Petrillo, Jr.; Nicholas F. Badami; Patrick W. Reardon; and Edmund V. Caplicki, Defendants.

No. 87 Cr. 0559 (GLG).

United States District Court, S.D. New York.

March 28, 1988.

Ralph T. Giordano, Dept. of Justice, Antitrust Div., New York City (Rebecca Meiklejohn, Geoffrey Swaebe, Jr., Robert Einstein, of counsel), for U.S.

Berman Paley Goldstein & Berman, New York City (David R. Paley, of counsel), for Yonkers Contracting Co., Inc.

Burke & McGlinn, Suffern, N.Y. (Patrick T. Burke, of counsel), for Maybrook Industries, Inc. and Nicholas F. Badami.

Patterson Belknap Webb & Tyler, New York City (Frederick T. Davis, of counsel), for Sullivan Highway Products, Inc. and Patrick W. Reardon.

Shea & Gould, New York City (Ronald H. Alenstein, of counsel), for Dutchess Quarry & Supply Co., Inc.

Baden Kramer Huffman & Brodsky, P.C., New York City (William M. Brodsky, of counsel), for Edward J. Petrillo, Jr.

Stillman, Friedman & Shaw, New York City (Charles Stillman, of counsel), for Edmund V. Caplicki.

OPINION

GOETTEL, District Judge:

The defendants in this case have been charged with criminal violations of the antitrust laws with respect to asphalt-paving contracts in Orange County. They have moved to dismiss the indictment on grounds that there were an insufficient number of blacks and Hispanics (referred to occasionally hereinafter as "minorities") on the grand jury which voted the indictment. They contend that this underrepresentation violates the Jury Selection and Service Act, 28 U.S.C. §§ 1861-77 (1982) (the "Jury Act"), and the Fifth and Sixth Amendments to the United States Constitution. They also move for an order enjoining their trial by a petit jury similarly selected.

This motion originally was filed last summer. The defendants, however, requested extensive discovery concerning the jury rolls, and that request was granted as a matter of right. Test v. United States, 420 U.S. 28, 29-30, 95 S.Ct. 749, 750-51, 42 L.Ed.2d 786 (1975). Following the submission of further briefs and affidavits by the defendants, the Government submitted its opposition papers in the fall. Numerous subsequent, similar submissions were made by the Government and the defendants. The defendants argued that an evidentiary hearing should be held or that, at a minimum, the decision of this motion should await Judge Motley's decision in United States v. Biaggi, 680 F.Supp. 641 (S.D.N. Y.), in which an evidentiary hearing had been ordered and at which certain of the defendants' experts in this case would be testifying. Judge Motley issued a forty-three page opinion on February 29, 1988 denying the defendants' motion. It appears, therefore, that this matter is ripe for a decision.

These cases,¹ and United States v. Biaggi, are not the first to raise these issues in this district. Indeed, it has become a rather common ploy in criminal prosecutions.² We hasten to remind the defense bar, however, before it becomes too enamored with this "cutting-edge" defense technique, that challenges to jury-selection procedures in this district have yet to be successful.³ This motion, likewise, is meritless; but, because so many grounds are alleged, some extended discussion is necessary.⁴

FACTS

There are certain facts that are not in dispute or have been clearly established.

Despite being the largest district in the United States in terms of case volume and number of judges, the Southern District of New York, until October, 1983, had only a single place of sitting—the historic United States Courthouse in Foley Square. The district includes New York County (essentially the borough of Manhattan), Bronx County, and the six counties immediately north of New York City—Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan.⁵ In October, 1983, a small branch of the court was opened in White Plains, New York, which is the county seat of Westchester County. A number of considerations supported the decision to open a branch of the court closer to the geographic center of the district. One such reason was to accommodate jurors and litigants from the more northerly counties who otherwise had to travel many hours to reach Foley Square, which is in the southernmost part of the district.

The opening of the White Plains courthouse required new jury lists for that court and some change in the method of drawing jurors for Foley Square (to be discussed infra in more detail). The grand jury that returned this indictment was impanelled and sat in the Foley Square courthouse during the transition period. At the conclusion of the transitional period and as presently constituted, there are two separate jury wheels—one for Foley Square and one for White Plains. Foley Square gets all prospective jurors who are residents of New York and Bronx counties. White Plains draws all prospective jurors who are residents of Sullivan, Orange, and Dutchess counties. Prospective jurors from Westchester, Putnam, and Rockland counties are assigned to both courthouses, with 90% being sent to Foley Square and 10% to White Plains. During the transitional period of about two years, from late 1983 to late 1985, however, Foley Square received prospective jurors from all eight counties in the district, while White Plains received a portion of those residents in the six counties north of New York City.

The Southern District's jury plan, which covers both courthouses and both jury rolls, uses voter registration lists to obtain prospective jurors. The voter registration lists used are those from presidential election years, which historically are the years having the highest voter registrations. As will be discussed below, however, there is a necessary time lag before the new voter registration names can be incorporated into the master jury wheel.

There are more minority persons living in the two New York City counties (New York and Bronx) than there are in the six northern counties, both in absolute numbers and in percentage of the population. In addition, as will be discussed more fully below, the minorities in question (blacks and Hispanics) apparently tend to register to vote less often than other citizens, with the result that the jury lists do not exactly mirror the population of the district.

Not all persons who are on the jury rolls are necessarily eligible for jury service. Persons who do not speak or understand the English language are disqualified. 28 U.S.C. § 1865(b)(2) & (3) (1982). This results in some Puerto Ricans (who are U.S. citizens by birth) being rejected for jury service.⁶ Moreover, there is a one-year residency requirement that theoretically excludes more transient groups. Id. at § 1865(b)(1).⁷

A. THE JURY PLAN FROM WHICH THE GRAND JURY WAS CONVENED

Initially, we will consider the defendants' claim that the grand jury panel which indicted the defendants was drawn in violation of this district's Amended Plan for the Random Selection of Grand and Petit Jurors (June 20, 1985) ("Amended Plan").⁸ This grand jury panel was selected from the last reel (reel 5) of the 1980 master jury wheel, a reel containing about 3100 names. It had been filled by the court on July 15, 1985. This grand jury was impanelled on August 12, 1985. The reel used, therefore, assigned jurors to Foley Square from all eight counties in the district. Many of the upstate jurors, however, few of whom were minority persons, were assigned to the White Plains court. The effect of this was to increase the percentage of minorities in the reel used at Foley Square. For that matter, had the next year's reels based on the 1984 presidential election been used, and the matter heard in White Plains, as defendants argue should have occurred, the minority representation would have been much less. (Since the defendants argue, in their other challenges, that minorities were underrepresented on their grand jury, their argument here cuts in the opposite direction.)

The defendants argue that the intent of the amended plan was to create new master wheels for each of the courts after the next presidential election (November 1984), and that the existing wheels could only be used until that time. Since the new master jury wheels were not created until mid-1985 and were not used until approximately September, the defendants maintain that the jury wheels being used for a period of almost a year were improper. They argue that there does not appear to be any reason why the court could not assign jurors commencing with the presidential election of 1984 consistent with the amended plan. There is a reason and it is quite obvious: namely, that mechanically it takes a period of time to transcribe the names from the presidential election voter lists and create the new master wheels. Indeed, the jury plan submitted by the defendants as an exhibit on the motion, recognizes these mechanical realities and provides that "the master wheel shall be emptied and refilled by not later than September 1 following the date of each Presidential Election." Plan for Random Selection of Grand and Petit Jurors, article III(B), at 6 (Jan. 25, 1984) ("Original Plan").⁹

Defendants argue that there is no proof that the plan dated June 19, 1985 (and filed June 20, 1985) was ever approved by this circuit's Judicial Council. For these purposes, it has the same provisions as earlier approved by the Judicial Council. As noted above, this grand jury was selected from the 1980 presidential election voter lists as provided by the original plan (which also provided that the wheels need not be refilled until September following the presidential election), which plan was approved by the Judicial Council and went into effect on July 26, 1983.

B. THE CLAIM THAT THE JURY ARRAY DOES NOT PRODUCE A FAIR CROSS SECTION OF THE COMMUNITY

Defendants claim that the jury array...