KEADY, Chief Judge, Sitting by Designation.
In this consolidated proceeding the court must deal with motions of various defendants to dismiss indictments on the ground of statutory and constitutional deficiencies in the selection of grand and petit jurors in the Northern District of Georgia.
(a) Real Estate Defendants.
On March 20, 1980, the real estate defendants were indicted on several counts of criminal anti-trust violations; at arraignment on the following day, they pled not guilty. On July 17, the magistrate assigned to the case entered an order allowing three weeks following receipt of certain materials from the clerk's office for these defendants to file motions to dismiss the grand jury indictment because of alleged substantial departures in the administration of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. On August 18, the real estate defendants filed their original motion to dismiss the indictment which charged various deficiencies in the administration of the jury selection plan, to-wit:
In addition, defendants raise constitutional claims of race and, later, sex,
On November 25 this court, from the judge's home station in Mississippi, issued an order directing that the filing of further amendments, if any were to be made, must be accomplished by December 8. On that date the real estate defendants, without obtaining leave of court, further amended their motion to dismiss the indictment against them on the constitutional grounds that the plan of selection of grand and petit jurors for the Northern District of Georgia
It is the position of the real estate defendants that their latest amendment, filed December 8, was merely supplementary and added little, if any, new material to their previously filed motion to dismiss; or, in the alternative, that constitutional issues raised under Rule 12, F.R.Crim.P., may not be considered waived for failure to file timely. It is the government's contention that our November 25 order may not be properly taken as an invitation to real estate defendants to add new theories to an already wide-ranging challenge for which the defendants have heretofore taken nearly six months to prepare. The government asserts that the latest amendment of the defendants threatens to substantially protract these proceedings because the prosecution would require a significant amount of time to prepare to meet the issues raised in the amendment.
Real estate defendants, in their latest amendment, challenge the indictment on the following grounds:
The essence of the principal part of the new grounds alleged by the real estate defendants assails the adequacy of voter registration lists as a proper vehicle for providing a fair cross section of the community in the selection of grand and petit jurors; in other respects the amended motion brings forward certain defects alleged to exist in the administration by court personnel of the district's jury plan.
(b) Garbage Case Defendants.
In the companion case, CR 80-136, the prosecution is against the garbage case defendants, who were also indicted on several counts of criminal anti-trust violations. The essential facts of this case follow:
On June 5, 1980, defendants pled not guilty to an indictment which was returned against them on May 29, 1980. Also on June 5, the assigned magistrate imposed a deadline of July 11 for the filing of motions. On July 22 the magistrate conducted a hearing in the garbage case in which a lengthy discussion ensued as to the type and character of the motions which the garbage defendants stated they proposed to file to dismiss their indictment. It was acknowledged by all present, including the magistrate, that the results of the ongoing but uncompleted investigation of the real estate
Garbage case defendants, first before the magistrate and now before us, urge that it would have been highly disruptive to the clerk's office and its personnel for them to have started an investigation parallel to the one in progress by the real estate defendants; and they point out that a dual investigation might well have been a needless waste of time and money, depending upon which conclusions were reached in the real estate defendants' investigation. These defendants emphasized the fact that the information being gathered by the real estate defendants was kept confidential and that their attorneys refused to disclose results of their ongoing investigation. As previously stated, the garbage case defendants, within ten days after first having positive knowledge of the grounds of the real estate defendants' challenge, filed their own motion.
The several grounds of challenge raised by the real estate defendants, and adopted in toto by the garbage case defendants, were based on detailed in-depth investigation supported by affidavit of Donald Huprich, a law student who was employed by one of the firms representing the real estate defendants. It is evident that the deficiencies set forth in the motions to dismiss relate to subject matter not easily understood, nor likely to be immediately absorbed or comprehended by counsel for the garbage case defendants. As the record reveals, these allegations were made after a three months' investigation of the impanelment process and a review of every juror qualification questionnaire of persons who were deemed ineligible or who were excused by employees of the court.
On September 10 the magistrate ordered a hearing requiring attorneys for the garbage case defendants to show cause why their August 28 filing was not in violation of the court's timetable for resolution of pretrial matters. At this hearing the magistrate requested additional authority by way of memoranda or letter briefs filed by government and defense counsel from September 10 through October 14. The magistrate never issued a formal ruling,
With matters in this state, counsel for the garbage case defendants and for the real estate defendants commenced to coordinate their efforts. As early as September 24 they met with legal and statistical professionals with a view of employing experts to conduct a compositional study of the grand and petit juries for the entire district. On October 2 an Atlanta-based organization, known as the National Jury Project, was retained to make this study. On October 14, counsel for defendants moved the magistrate for access to additional records. Although the government's position was that further investigation was unnecessary because
The government seeks to dismiss the original and amended motions of the lead defendants on the ground that they were not timely filed within the requirements of 28 U.S.C. § 1867(a),
A separate and discrete issue is whether the defendants have filed motions which qualify under Rule 12(b)(1) and (2)
We first address the statutory requirements imposed by the Jury Selection Act, particularly 28 U.S.C. § 1867(a) and (d), and next consider the parameters of Rule 12 in the context of constitutional challenges to the jury selection process.
I. JURY SELECTION ACT
The settled law of the Fifth Circuit is that the time provisions of § 1867(a) and (d) must be strictly construed, and that ordinarily failure to challenge the proceedings on the ground of substantial failure to comply with the Act bars a defendant from raising the point. United States v. Merlino, 595 F.2d 1016, 1020 (5 Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980); United States v. Kennedy, 548 F.2d 608, 613 (5 Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); United States v. Hill, 480 F.Supp. 1223, 1227 (S.D.Fla.1979).
It is to be noted that in Merlino and Kennedy, and in United States v. De Alba-Conrado, 481 F.2d 1266 (5 Cir. 1973), challenges were first raised at or after voir dire examination. Nevertheless, it is apparent that the Fifth Circuit in Kennedy hinted that unusual circumstances might constitute a reasonable basis for excusing strict compliance with the seven-day rule.
Kennedy, at 613. This statement was alluded to by way of dicta in United States v. Hawkins, 566 F.2d 1006 (5 Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 150, 58 L.Ed.2d 151 (1978), where the court stated, in reference to Kennedy:
The district court, in Hill, regarded the expressions of Kennedy as justification for holding "it was never the intent of Congress to preclude the filing of a motion such as in the instant case ..., based on these particular [factual matters presented in Hill] circumstances and on the circumstances [presented in Hill] of counsel ...." 480 F.Supp. at 1228. Hill adhered to the proposition that the "legislative intent of utilizing § 1867 as a means for discouraging spurious challenges filed for dilatory purposes should be recognized.... [But] in the instant case ... the challenge is neither spurious nor the purpose dilatory." Id. The court found further from the particular circumstances presented that counsel could not have reasonably been expected to comply with the procedural prerequisites to the statutory challenge under the Act within the seven-day period and that an exception of reasonableness was thus imported to the
It is to be noted that the Jury Selection Act provides that "[t]he procedures prescribed by [§ 1867] shall be the exclusive means by which a person accused of a Federal crime ... may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title." § 1867(e). Notwithstanding the unequivocal provisions of the Jury Selection Act, it is clear that strict compliance with the time provisions of § 1867 is not jurisdictional in the sense that a district court loses power to act upon a challenge not filed within the seven-day period regardless of the circumstances. We hold that a showing of reasonableness, or exigent or compelling circumstances, authorizes the district court, in the exercise of sound discretion, to entertain a challenge filed out of time.
Since compliance with § 1867(a) and (d) is not jurisdictional in the strict sense of the word although the requirements of timeliness must be stringently observed, courts may, upon an adequate showing of reasonableness, or exigent and compelling circumstances, grant motions filed beyond the seven-day period which raise failure to substantially comply with the Jury Selection Act. With respect to the real estate defendants, it is clear that even prior to indictment and arraignment they engaged investigators to make intensive study of the clerk's jury records, which entailed examining, and closely inspecting, several thousand juror questionnaires. The magistrate assigned to the real estate defendants' case extended the time for filing of motions to quash their indictment, and their motions were filed within the deadline established. A different situation prevails as to the garbage case and other defendants who made their initial filings alleging substantial departures from the Act on and after August 28. It is evident that prior to August 18 — ten days before the garbage case defendants filed their motion to dismiss — all that the garbage case or other defendants could have made would be no more than a paper record, unsupported by factual averment, inasmuch as they had no knowledge regarding the information developed on behalf of the real estate defendants. Moreover, the circumstances indicate that the garbage case defendants, by withholding possibly unfounded motions, acted reasonably and prudently. Prominently contributing to this conclusion is the fact that the magistrate strongly indicated his disapproval of any motion which might challenge an indictment on the ground of illegalities in grand jury composition unless it was factually supported. The magistrate's position to this effect is clearly reflected in the transcript of his proceeding. An instance of a judicial officer discouraging utilization of a procedure otherwise available to defense counsel, may, we think, be properly regarded as a circumstance sui generis adequately justifying reasonable delay as a prudent course. It is the function of courts not to ignore realities disclosed by the record, although they may not have occurred with special design or intent to injure but which nevertheless affect counsel in the management of their clients' cases. Suffice it to say that from all circumstances shown, we hold that equitable considerations present here excuse the garbage case defendants from strict compliance with the time requirements of § 1867(a) and (d), and that they acted with reasonable diligence in raising the statutory challenges. Concerning other defendants in the consolidated case, most of whom are represented by the Atlanta Public Defender's office, actual notice of the grand jury challenge was received by this office on September 30, and motions were filed soon thereafter.
II. RULE 12(b) MOTIONS
Initially we judged the December amended motions of all defendants by the stringent time requirements mandated by § 1867 with respect to the filing of motion and supporting affidavit and concluded that all defendants knew or by the exercise of reasonable diligence should have known of the additional grounds of jury challenge at least several months prior to the filing of the December amendments. Therefore, it was our view that the December amendments should be disallowed as untimely under the Jury Selection Act and that Rule 12(b), F.R.Crim.P., did not protect defendants in the late filing of such amendments. Motions to reconsider this aspect of the court's ruling were timely filed and upon reflection, the court adheres to the view that the December amendments to dismiss filed by the defendants in this case, together with supporting affidavits, did not satisfy the strict requirements of § 1867(a) and (d) and, to that extent, is content to rely upon the reasoning originally stated, i. e., that there was no compelling circumstance or exigent condition which would serve to extend from August 18, or August 28, 1980, to December 1980 the time allowed for the filing of additional grounds of challenge, and, if only statutory grounds were alleged, the December amendments to dismiss would be disallowed.
Nevertheless, the court has reconsidered the applicability of Rule 12(b) to all cases before it and now concludes that the December amendments which raise constitutional claims of serious import that the procedures for selection of grand and petit jurors in the Northern District of Georgia violate the United States Constitution by failing to provide an adequate cross section of certain cognizable classes of citizens in the community, the claim being that the procedures utilizing the voter registration lists of the several counties comprising the judicial district, result in the underrepresentation, inter alia, of blacks, blue collar and service workers, and persons having less than a high school education, and the overrepresentation of white collar workers, the employed and persons having a high school education or better, are timely. It is our view that at least to the extent that these claims are of constitutional magnitude, the motions asserting them should be allowed, notwithstanding the lateness of filing. Our ruling in no way alters the trial schedule of the original motions to dismiss, set for January 5, 1981, and only requires the allowance of the garbage case, real estate and other defendants in the consolidated hearing to participate and rely upon constitutional grounds which have been previously bifurcated by this court from the evidentiary hearing to be presently conducted, and for the bifurcation or reservation of constitutional issues to be determined at a later date.
A brief analysis of the law relating to Rule 12(b) is in order. As originally adopted in 1946, Rule 12(b)(2) provided that defects and objections based on defects in the institution of the prosecution or in the indictment "may be raised only by motion before trial." Subsection (b)(3) provided "the motion shall be made before the plea is entered but the court may permit it to be made within a reasonable time thereafter." The motion had to include all defenses then available to the defendant, and failure to present an objection constituted waiver thereof, although the court for cause shown could grant relief from the waiver. In 1975, Rule 12(b) was amended to provide specifically that five classes of motions must be raised prior to trial, and defenses and objections based on defects in the institution of the prosecution or in the indictment comprise the first two classes. The amended rule provides in subsection (c) for a motion date, to be determined by local rule or by the court as may be set at time of arraignment or as soon thereafter as may
It is evident that while any motion attacking the legality of the grand jury composition under amended Rule 12 must be made before trial, the time for filing such motion was somewhat enlarged since it did not have to be filed before the plea or at arraignment but within such time "as soon as practicable" as the court may allow, either initially or by subsequent extension. The purpose of Rule 12 for having pre-trial defenses and objections of this type, even in situations requiring the taking of evidence, to be disposed of in advance of trial and without frustration of court calendars and inconvenience to jurors, witnesses and lawyers, is adequately served by liberal application of timeliness, especially where constitutional rights of defendants are implicated in the motion. Indeed, from briefs of counsel and our own research, we have found no case which so restricts Rule 12(b) motions in the stringent terms mandated by 28 U.S.C. § 1867(a).
We therefore hold that the strictures imposed by § 1867(a) and (d), as stated in the statute itself to constitute the exclusive method by which defendants in criminal cases may challenge substantial compliance with the Jury Selection Act, relate to those challenges of defects and irregularities which constitute substantial statutory departures, whether committed by court personnel or by judges in the administration of the jury selection plan or application of the Act, and that § 1867 does not reach or necessarily govern constitutional challenges to the selection of grand and petit jurors. Indeed, to give § 1867 such a broad reading would be to curtail sharply and unduly valued constitutional rights which the decisions of the United States Supreme Court have sought to maintain, short of an unequivocal, unambiguous waiver of right and without the presence of any factual basis for granting relief from waiver of such constitutional claim. The Jury Selection Act, which was adopted March 27, 1968, neither by its terms nor in the legislative history fairly implies that a curtailment of constitutional rights was intended, and we decline to give § 1867(a) and (d) such a strained interpretation.
There are cases which hold that a challenge to the jury not made until the day of trial comes too late, whether it is treated as a failure to comply with § 1867(a) or with Rule 12. For example, in United States v. Geelan, 509 F.2d 737 (8 Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975), the Eighth Circuit held a grand jury challenge first made on opening day of trial was disallowed as untimely. It is interesting that the Court nevertheless addressed the merits of the alleged constitutional claim by finding young adults 18-20 years of age do not constitute a cognizable group whose exclusion from the jury rolls amounted to an error of constitutional dimension.
Many cases, of course, followed the landmark holding in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), a decision on which government counsel has strongly relied here. But Davis is readily distinguishable since the defendant Davis made no attack upon the legality of the grand jury which indicted him until he made a motion to vacate sentence under 28 U.S.C. § 2255, filed almost three years after his conviction. The Court declared that the "necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of `cause' which that Rule requires." Davis, at 242, 93 S.Ct. 1582-83.
This brings us to whether all defendants in this consolidated hearing have waived the right to raise constitutional challenges contained in their most recent motion. We are still in the pretrial stage, concerned with preliminary matters which attack the procedures used by the court personnel in selecting grand and petit jurors and by judges charged with race and sex bias in the selection of grand jury forepersons and deputy forepersons. No trial date for these cases has been set, and none will have to be continued as a result of these present proceedings.
Other Rule 12(b) considerations should be placed in correct perspective, especially because they are not seriously disputed, if at all, by the prosecution. The garbage case defendants filed their original motion to dismiss on August 28, 1980. Magistrate Forrester held a show-cause hearing on September 10 as to why the filing of the first motion was not in violation of the magistrate's timetable for resolving pretrial matters. Counsel for defendants and the government submitted memoranda and letters directed to this issue through October 14. Meanwhile, counsel for garbage case defendants, on September 24, met with legal and statistical experts with a view of employing personnel to make a compositional study of the pertinent jury records. On October 2, the real estate defendants, and perhaps other indictees, employed the National Jury Project to make such study. Since the real estate defendants alone had been previously permitted to view the records,
Although further comment may be unnecessary, we note that several cases have elucidated upon the relief for "cause" exception in Rule 12. Obviously, it is a matter left to the discretion of the judge. Davis, supra, 411 U.S. at 245, 93 S.Ct. at 1584. Usually, this question has arisen in a post-trial setting. In United States v. Williams, 544 F.2d 1215 (4 Cir. 1976), the Fourth Circuit ruled that no "cause" was shown by a defendant who had been indicted for first degree murder on a military reservation and was convicted of second degree murder. After the conviction was affirmed on appeal, the defendant filed a § 2255 motion to vacate sentence, alleging for the first time that blacks had been deliberately excluded from the federal grand jury which indicted and the petit jury which convicted him. The district court dismissed summarily, relying on Davis. The appeals court first reversed, stating that the defendant should have had an opportunity to show "good cause" why he should be excused from Rule 12's waiver provision. The district court, after an evidentiary hearing, held that defendant had not been prejudiced on account of jury composition since there had been black representation on the petit jury and the jury selection procedures were otherwise proper. The Fourth Circuit agreed with this holding, acknowledging that though actual prejudice may be difficult to demonstrate in most cases, it is consistent with the notion that relief from Rule 12(b)(2) waiver is "an exercise of an extraordinary power" and must be regarded as an exception to the rule. Id. at 1218. See Throgmartin v. United States, 424 F.2d 630 (5 Cir. 1970.)
If it were here necessary to articulate relief from a Rule 12(b) waiver based on cause, presumed, if not actual, prejudice must be deemed to exist on the basis of facts, which, if shown to be true, would violate established constitutional principles that legally cognizable groups in the jury-eligible population may not be permissibly excluded from the jury selection process. The present defendants are an array of blacks, indigent whites, and other indictees representing wide-ranging economic status. So if their motion to challenge indictments on constitutional issues were disallowed, the effect of such a ruling would leave the defendants, if their positions are not mistaken, without a remedy for the government's violation of constitutional rights. See United States v. Jones, 322 F.Supp. 1110 (E.D.Pa.1971).
It is accordingly
That except in one case, CR 80-11 N, defendant James Atchley, the government's motions to dismiss the original and amended motions (except the December amendments) of the defendants in this consolidated action which challenge the deficiencies of the selection of grand and petit jurors in the Northern District of Georgia on statutory and constitutional grounds are denied and the government's motion to dismiss Atchley be and the same hereby is sustained.
That the government's motion to dismiss on statutory grounds the amended motions filed in December be and the same hereby is granted, but that, as to the constitutional claims raised in those motions, the government's motion is denied.
That in accordance with rulings made at the pretrial conference, Rule 17.1, F.R. Crim.P., the issues raised by the original motions challenging substantial departures in the application of the Jury Selection Act and the administration of the jury selection plan adopted by the Northern District of Georgia together with the first-raised constitutional claims of racial and sex bias on the part of the sitting judges and the selection of grand jury forepersons and deputy forepersons and gender discrimination in the granting of excuses for jury duty be set
DISPOSITION OF MERITS
In a nine-day evidentiary hearing beginning January 5, 1981, the court received evidence consisting of voluminous exhibits, live testimony, depositions and heard extended oral argument of counsel. All parties having since presented proposed findings of fact and legal memoranda, the court resolves issues submitted at the present hearing by incorporating herein findings of fact and conclusions of law.
It is helpful to restate the present contentions of the parties. Defendants' most prominent contention is that the sitting district judges of the Northern District of Georgia have impermissibly discriminated against blacks and women in the appointment of grand jury forepersons and deputies from January 1970 through February 1980, contrary to the fifth and sixth amendments to the United States Constitution. In addition to this constitutional claim, defendants urge that the indictments against them should be dismissed because of a variety of irregularities or failures resulting in substantial noncompliance with the Jury Selection and Service Act, as well as the district's plan for the selection and service of grand and petit jurors which was adopted by the district judges and approved by the Reviewing Panel of the Fifth Circuit. The prosecution's response, initially, is that the offices of grand jury foreperson and deputy in the federal prosecution system have no constitutional significance; but if this position is not well taken, it is claimed that defendants failed to make out a prima facie case of race or sex discrimination; and finally that any prima facie case of such discrimination was effectively rebutted by affirmative and unimpeached evidence offered by the prosecution. As for claims based upon alleged noncompliance with the statute and the district's plan pertaining to the selection and service of grand and petit jurors, the government argues that court personnel substantially complied with jury selection process mandated by law in all material respects and that the few deviations disclosed by the evidence were minor, only technical in nature, and of de minimus effect, considering the size and scope of the tasks imposed upon a large judicial district and the demonstrated diligence and good faith exhibited by court personnel in administering the plan.
We shall briefly set forth the essential, yet largely uncontradicted, evidence regarding the constitutional claim of the foreperson issue before entering into a detailed discussion of the evidence and law concerning the challenges of noncompliance which defendants make based upon the Act and the district's plan.
(a) The grand jury foreperson constitutional claim.
The Northern District of Georgia, comprising 46 counties, has four statutorily created divisions: Atlanta, Gainesville, Newnan and Rome. Grand juries are regularly convened at Atlanta; each grand jury ordinarily serves for 18 months, and there is usually more than one grand jury sitting at any particular time. Veniremen, or panel members, are proportionately drawn from the separate qualified wheels at the four divisions. Prior to July 1974, 36 persons — 20 from the Atlanta Division, 8 from the Rome Division, and 4 each from the Gainesville and Newnan Divisions — were customarily summoned for grand jury duty. Thereafter, the number of veniremen was increased to 50 — 33 persons are chosen from the Atlanta Division, 4 from Gainesville, 5 from Newnan and 8 from Rome.
During the relevant time period, 42 different grand juries for the district were empaneled, each consisting, as provided by law, of no more than 23 members. During this entire period, 43 foreperson appointments were made.
The record shows that the aggregate composition of all empaneled grand juries from January 1970 to February 1980 consisted of a total of 948 jurors, of whom 514 (54%) were white males, 288 (30%) were white females, 68 (7%) were black females and 49 (5%) were black males.
Defendants offered James Michael O'Reilly, an expert social scientist, who testified that he ascertained the jury-eligible population (18 and over) for the 46 counties in the Northern District of Georgia based on the 1970 United States Census, which he adjusted by 1978 Georgia estimates, arriving at a jury-eligible population of 1,409,200 whites and 312,047 blacks. He stated it was recognized by census and other population authorities that the 1970 United States official census, on a nation-wide basis, undercounted whites by 1.9% and blacks by 7.7%. Applying these national rates of undercount to each race, O'Reilly calculated that in 1978 the judicial district had a white jury-eligible population of 1,439,642 and a black jury-eligible population of 340,464 (19.1%). Using the same formula, O'Reilly ascertained for the Atlanta Division alone a white jury-eligible population of 942,258 and a black jury-eligible population of 269,896 (22.3%).
O'Reilly's statistical calculations were essentially unimpeached by Dr. Charles Wang, the prosecution's expert, who criticized O'Reilly's statistical methodology yet did not take serious issue with O'Reilly's conclusions.
Defendants also offered "theoretical evidence" through Dr. John McConahay, of Duke University, who testified as to group dynamics. His opinion was that though the influence of a leader of a group of less than ten may be minimal, as the size of the group increases, the influence of the leader is also likely to increase. McConahay drew a distinction between an "imposed leader," i. e., one appointed from an outside source, and the "emergent leader," i. e., one who naturally assumes a position of leadership within the group. This expert's opinion was that the influence of an imposed leader, as one appointed by a judge to be grand jury foreperson, is apt to be greater than that of other members of the grand jury. Since the foreperson might be perceived as having more expertise if chosen by the judge, he opined that a judge-appointed foreperson would likely exercise considerable influence over the grand jury's deliberations. This expert expressed no opinion as to the role of the deputy foreperson, other than that the position called for less of a leadership role. On cross-examination, McConahay acknowledged that the longer and more frequently the same group meets, the greater is the chance that a natural leader, which he termed a "socio-emotional leader," might emerge with lessening influence of the appointed leader. He readily conceded that under such circumstances an appointed foreperson might well have less influence over a period of time. This witness acknowledged that he had never served on a federal grand jury, had no knowledge of how often a particular grand jury might meet or how long it remains in session, and knew nothing of the manner in which it transacts business.
The defense offered United States District Judge Vining, who was allowed to express his views based upon six years' experience as district attorney in the Georgia state courts in dealing with state grand juries which selected their own forepersons in accordance with Georgia law.
All eight appointing judges testified that in selection of forepersons and deputies they examined and relied upon the juror questionnaires of persons summoned for grand jury duty, and they made no independent investigation of their qualifications. Except in rare instances, the appointing
The foregoing summary of the evidence is adequate to demonstrate that the issue of sex and race discrimination in the selection of forepersons and deputies is indeed a question of major constitutional import, provided the office of a federal grand jury foreperson has constitutional significance.
Id. 297 U.S. at 347, 56 S.Ct. at 483 (Brandeis, J., concurring, joined by Justices Stone, Roberts and Cardozo).
The Supreme Court has unswervingly held to this approach in resolving issues based upon both constitutional and statutory grounds. The rule was recently reaffirmed in Califano v. Yamasaki, 442 U.S. 682, 692, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176, 187 (1979), when the Secretary of the Department of Health, Education, and Welfare (HEW), as petitioner, sought to recoup erroneous overpayment made to social security beneficiaries. The recipients sued in federal court on claims that the Secretary's recoupment procedures were contrary to the recoupment statute, 42 U.S.C. § 404, and the Due Process Clause of the fifth amendment. Holding that the case was capable of resolution on statutory grounds, Justice Blackmun, writing for the Court, pretermitted consideration of the Due Process claim by stating:
Id. 442 U.S. at 692, 99 S.Ct. at 2553.
Since it is our view that the instant cases may be disposed of on grounds based upon the Jury Selection and Service Act, the district's judicially approved plan, and general law principles, we find it inappropriate to address the constitutional claims that the positions of forepersons and deputy forepersons of federal grand juries have constitutional significance where such grand juries are selected and drawn strictly in accordance with the statute and the district's plan. Similarly, we pretermit defendants' alternative constitutional claims that persons over 70 years of age are a "cognizable group," whose exclusion offends the Constitution and that optional excusals of females, and not males, having legal custody of children under 10 years of age amount to unconstitutional gender discrimination.
(b) Failure to comply with the Jury Selection and Service Act and the District Court's approved Plan.
Our analysis begins with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., which was enacted to effectuate definite policies clearly expressed within the Act itself:
28 U.S.C. § 1861. The Act's legislative history amplifies this policy:
S.Rep.No.891, 90th Cong., 2nd Sess. 9, reprinted in  U.S.Code Cong. & Ad. News 1792, 1792.
In order to achieve the cross-sectionality objective, the Act embodies two important general principles:
Id. at 1793. Random selection "virtually eliminates the possibility of impermissible discrimination and arbitrariness at all stages of the jury selection process, and thereby tends to insure that the jury list will be drawn from a cross section of the community," while the "objectivity principle" was intended to prohibit the then "widespread current practice of imposing qualifications above and beyond those specified by Congress." Id. at 1794 and 1795.
The Act expressly contemplates that in many respects each district court bears the responsibility of devising and placing into operation a written plan for random selection of grand and petit jurors to be drawn from a fair cross section of the community.
We therefore conclude that a violation of the district's Local Plan constitutes a violation of the Act if the Local Plan's provision not adhered to effectuates one of the two paramount purposes of the Act. See United States v. Tarnowski, 429 F.Supp. 783, 790 (E.D.Mich.1977), aff'd, 583 F.2d 903 (6 Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979).
A remedy is not provided for every violation of the Act or Plan. Rather:
United States v. Evans, 526 F.2d 701, 705 (5 Cir.) (emphasis original), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976). The Fifth Circuit has made clear that a determination of whether there has been substantial compliance with the Act "requires that the alleged violations of the Act be weighed against the goals of the statute." United States v. Smith, 588 F.2d 111, 115 n.22 (5 Cir. 1979); United States v. Carter, 568 F.2d 453, 455 (5 Cir. 1978); United States v. Davis, 546 F.2d 583, 589 (5 Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Thus, "[o]therwise technical violations of the statute constitute `substantial failure to comply' when they affect the random nature or objectivity of the selection process." United States v. Kennedy, 548 F.2d 608, 612 (5 Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977).
Once substantial noncompliance with the Act or Plan has been established, "the court [must] stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictments, whichever is appropriate." 28 U.S.C. § 1867(d). Furthermore, staying the proceedings or dismissing the indictments is "the exclusive means by which a person accused of a Federal
With these principles in mind, we turn to the specific issues of the statutory and plan challenges raised by defendants in the administration of the jury selection process in the Northern District of Georgia.
Jury selection challenges in the Northern District of Georgia are not strangers to the Fifth Circuit. United States v. Davis, supra; United States v. Kennedy, supra. In both cases, the Fifth Circuit was critical of the District's failure to comply with 28 U.S.C. § 1861 et seq., as well as the Local Plan adopted pursuant to the Act. A detailed discussion of the historical implementation utilizing computers may be found in Davis, and is reiterated here only to the extent necessary to understand this opinion.
Challenges Based on Randomness: Starting Numbers and Public Notice
During orientation on the new automated jury selection system in 1975, the General Services Administration (GSA) instructed the clerk's office on how to work in conjunction with the system's computer. Pursuant to the Act and the Local Plan, the district's procedure utilizes voter registration lists from each county within the district. The GSA program automatically selects names from computer tapes furnished by Georgia counties that themselves utilize automated systems. For those counties that rely on printed or written lists, the clerk's office is responsible for "red-lining" or checking names to be placed in the master wheel. Names are selected to assure proportionate divisional representation in the master wheel. The GSA then creates a master wheel computer tape in which the entire array of names is alphabetized and each name given a number. The tape also retains divisional identity for each name. The GSA and the clerk's office properly performed these selections from voter registration lists to master wheel.
In mid-1976, work began on the construction of four new qualified wheels, one for each division in the district. The GSA computer was utilized to address standard Juror Qualification Questionnaires, on a form approved by the Administrative Office of the United States, to each of the 59,352 persons whose names were contained on the four master jury wheels. The questionnaires were in turn mailed, with instructions to the addressees that they be completed, signed, dated, and returned to the clerk's office. Approximately 42,000 questionnaires were returned to the clerk's office as directed. Upon receipt, the returned questionnaires were screened by the jury clerk, Angela Turner, and two or three assistants to determine whether, under the requirements of the Plan and the Act, they should be included or excluded from the respective qualified wheels. Turner and her assistants performed the qualifying task after being instructed by the clerk of court Ben H. Carter, as to the proper bases for excusal, exemption, and disqualification under the Plan and Act. Carter was thereafter consulted only when specific questions concerning a particular individual arose. Then-Chief Judge Henderson was seldom consulted during the screening process, which took approximately six months. Of the 42,105 returned questionnaires, 11,875 were either disqualified, excluded, exempted, or excused; the remaining 30,230 were qualified by the clerk's office. When a prospective juror was qualified, this fact was noted on a computer-punched card that was returned to GSA, which fed the information from card to computer for recording on the master wheel tape. Thus, the qualified wheel consists of prospective jurors marked "qualified" on the master wheel computer tape; there is no separate tape or computer printout made up of only qualified jurors.
When the court requires a panel of qualified jurors, whether grand or petit, it sends an order to the clerk's office. For grand juries the clerk draws a proportionate number of potential jurors from each division. A grand jury panel usually numbers 50, of which 33 are picked from the Atlanta qualified wheel, 8 from the Rome qualified wheel, 5 from Newnan and 4 from Gainesville.
The GSA picks, as the first name from each divisional wheel, the prospective juror whose position in the qualified wheel corresponds to the starting number picked by the clerk's office. Thereafter the computer selects each qualified juror whose position falls one increment number farther down the list from the previous qualified prospective juror selected. For example, choosing from the Atlanta Division, with an increment number of 545 and a starting number of 123, the persons in the qualified wheel at positions 123, 668, 1213, and so on until the thirty-third person was chosen would constitute the portion of the grand jury panel drawn from the Atlanta Division's qualified wheel.
Each person whose name is selected from the computer is mailed a summons for service. Juror information cards are completed by the summoned individual, who is instructed to inform promptly the court if he or she has a reason for being unable to serve. Many people are excused by the jury clerk prior to reporting. When such an excuse is granted, the computer center is notified so that it may enter the information on the computer tape.
Before choosing the starting number, the clerk's office is required to post public notice of the event. Afterwards, notice of the starting number selected is to be posted. Since 1971, Angela Turner, the jury clerk who continues to serve under Ben H. Carter, the current clerk of court, has been in charge of this procedure as well as the qualification process. Turner rarely complied with the first notice requirement.
Even now, public notice is given for no more than a brief period of time prior to starting number selection. Notices are posted as soon as Turner receives an order for a jury from a judge, but she draws the
Although the Local Plan mandates use of "a drum or box containing numbered cards covering the same range of numbers as the `quotient'" to draw the starting number, see Local Plan at 90a, Turner and her assistants rarely followed it. In 1975, when the district commenced using the computerized jury selection system, Turner picked starting numbers by holding the beginning pages of a dictionary from page one to the increment number, then flipping the book open for a "random" number. She testified that she tried to vary from left to right within the pages held but admitted that she had a tendency to keep away from the end pages.
In 1976, Carter gave Turner a wheel and told her to use it instead of the "book" method. Nevertheless, Turner rarely resorted to the wheel because it did not contain the proper number of cards, i. e., from one to the increment number, whatever it might be at a particular drawing. Instead, being pressed for time, she began to use her own method to obtain starting numbers. The so-called "Turner" method entailed picking a number out of her head which, she testified, was always within the increment number. Although Turner denied that she had any favorite number, she did favor her own method over the "book," wheel, or any other method.
Turner sometimes asked her assistant, Allen Newman, for a starting number rather than select one herself. Newman was responsible for 15 to 20 of the starting number selections. He testified that Turner would ask him for a number between one and 100, irrespective of what might be the range of the increment number. However, at least after 1978, when the jury selection procedures of the district were previously challenged, Newman used the wheel when the increment number was less than the number of cards the wheel contained. At other times the assistant used his own variation of the "book" method by placing the dictionary on its back and letting it fall open. When necessary, he would continue this procedure until he obtained a number within the increment range.
Newman also testified, and Carter confirmed, that Carter directed Turner to use the wheel exclusively. Nonetheless, the jury clerk failed to change the number of cards in the wheel to match the increment range for each individual selection. Instead, Turner continued to do most of the selections according to her own methods. It took another warning by Carter, precipitated by the filing of the present motions, for Turner to commence using the wheel without exception and to select from the wheel starting numbers by use of discs, numbered from one to the increment number.
According to undisputed evidence, the jury clerk picked 92 starting numbers for grand and petit jury selections from the Atlanta Division qualified wheel during the period March 3, 1977, through April 9, 1980. Of these 92, six numbers accounted for 29 choices, or 32% of the 92. These numbers and their frequencies were: 69—5; 76—5; 77—3; 78—6; 88—4; 89—6. Another statistic reveals that the numbers 50 through 90, inclusive, accounted for 39 of the 92 choices, or 42%. Also, although increments
From March 8, 1978, to January 3, 1980, the jury clerk chose 59 total starting numbers for Atlanta Division petit juries and the Atlanta Division's portion of grand juries.
Dr. Wang was of the firm opinion that despite these nonrandom starting numbers, over the passage of time the likelihood that a particular juror would be chosen was approximately equal to that of any other person in the qualified wheel.
The importance of random selection of starting numbers stems from the fact that given a list of persons in the qualified wheel and records of selections to date, it would
Since we find as a fact that the jury clerk's starting number choices were not random, the selection process did not result in random panel choices for individual grand juries. For grand juries viewed one at a time, the chances for qualified wheel members to be picked were certainly not substantially equal. Although, as Dr. Wang testified, the starting number becomes immaterial after the passage of an indeterminate period of time, there is no way of knowing what duration of time is required to produce this inadvertent result of randomness. Moreover, the evidence does not show simply a single departure from the plan's requirement for selecting a starting number. On the contrary, nonrandom methods of selecting starting numbers were regularly employed in drawing grand and petit jurors many times over a period of several years.
Defendants contend that their indictments should be dismissed because the clerk's office has transgressed the requirements of random selection of starting numbers, as well as public notice of starting number drawings. That the Act and the Plan were violated by the use of nonrandom methods to select starting numbers and by the failure to post adequate notice is indisputable. The question we must determine is whether these deviations constitute substantial failure to comply with the Act and Plan. These violations, defendants urge, per se constitute substantial failure to comply with Act and Plan, warranting dismissal of the indictments. The government responds that "substantiality" must be measured by its effects on randomness. The government reasons that "over the passage of time," starting number selection results in randomly chosen grand jury panels because both petit and grand jurors are constantly drawn from the qualified wheel and are not replaced, thus altering their relative positions within the qualified wheel (the "nonreplacement factor," as termed by Dr. Wang). The government maintains no material consequences have flowed from nonrandom selection of starting numbers, making this violation of the Act and Plan merely technical. In addition, the prosecution urges such lack of notice did not affect ultimate randomness and that this deviation from the Act and Plan should also be regarded as minimal and insubstantial.
The Fifth Circuit has expounded on the issue of randomness in United States v. Kennedy, supra, and United States v. Smith, supra. In Kennedy, a case from the Northern District of Georgia, the jury clerk faced a shortage of prospective jurors during the July term of court. Instead of supplementing the number of July prospects available in the qualified jury wheel, the jury clerk solicited volunteers from jurors who had served during the June term. Three volunteers remained on Kennedy's panel when Kennedy's counsel, just prior to voir dire, orally objected on the basis of the "random selection rule." 548 F.2d at 610.
On appeal, the Fifth Circuit found that this method violated the Act in two respects. First, a list of the prior term's jurors did not constitute an alternative source list within the meaning of 28 U.S.C. § 1866(f),
The Fifth Circuit concluded that this failure to comply with the Act was substantial, the court reasoning that
Id. at 612 (citations omitted) (emphasis added). The conviction was nevertheless upheld because of the failure of defense counsel to properly raise the issue.
Though Kennedy's pronouncements on violations of the Act vis-a-vis substantiality are obiter dicta, they remain the most extensive Fifth Circuit discourse on the subject and are given added weight by the fact that they were cited with approval in United States v. Smith, supra. Smith considered whether supplementing a qualified wheel by returning to it "names of persons who had served more than two years previously and those who had been called but for some reason did not serve" amounted to a substantial violation of the Act. Id. at 113. It was contended that the clerk's office contravened § 1866(f),
After first construing § 1866(f) as merely directory, the Fifth Circuit inquired whether other subsections of § 1866 prohibited the challenged practice:
Id. at 114-15 (citations omitted). In a footnote to the quoted paragraph, the court stated that this practice did not significantly affect the inherent random nature of the selection process because "[t]he panels are still selected at random from a large group of names. The procedure used here would never produce a jury like that the Court condemned in United States v. Kennedy." Id. at 115 n.21. The court thus concluded that the clerk's actions were not prohibited by statute and that in any case, the slightly greater likelihood and opportunity of some persons in the qualified wheel to be selected more than once did not constitute substantial noncompliance.
Although neither Smith nor Kennedy is factually in point, they do stand for the proposition that violations of the Act or Plan in drawing starting numbers, to be actionable, need not necessarily manifest themselves in some resulting harm, and that transgressions must be evaluated in the light of the purposes of the Act. To determine whether these nonrandom procedures constitute a "substantial failure to comply," we must decide how important they are toward accomplishing the goals of the Act. When deviations from the Act are important, they can only be characterized as "substantial." The Plan itself emphasizes the importance of the random selection of the starting number as follows:
Local Rules, at 90a (emphasis added).
Under the facts of this case, it is appropriate to examine not only the methods used for selecting starting numbers, but the manner of providing public notice as well. Under 28 U.S.C. § 1866(a), "the clerk shall publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels." "Publicly draw" is defined by § 1869(k) to mean "a drawing which is conducted within the district after reasonable public notice and which is open to the public at large." Under the district's plan, "[r]andom drawings of starting numbers shall be publicly made ... at times to be publicly announced on the Court bulletin board." Local Plan at 90b.
Few cases deal with the discrete issue of public notice at any stage of the jury selection process.
Id. Thus, according to the rationale of the Fifth Circuit in both Dalton and Davis, lack of public access to the grand jury selection process constitutes a substantial violation of the Act if it masks deviations from its requirements.
Both Dalton and Davis involved challenges based on inaccessibility of the public to the jury selection process, while here we are concerned not with the place of the drawing or the accessibility of the public to that place but, rather, with the adequacy of the notice of the drawing given. A public drawing is, of course, meaningless unless the public is notified reasonably in advance of the time and place of the drawing. This much is recognized by the Act's definition of "publicly draw" under § 1869(k). We conclude that if notices of starting-number drawings are not reasonably adequate for the public to make use of the information contained in them, and in fact starting-number drawings did not comply with the requirements of Act and Plan such that they affected "the random nature and objectivity of the selection," then a substantial violation of Act and Plan has occurred.
We do not think that infrequent, simple, inadvertent deviations in random selection of starting numbers and adequacy of public notice should constitute a substantial failure to comply with the Act or the Plan and result in harsh consequences of dismissal of indictments. That a standard of perfection in achieving randomness was not contemplated by Congress is clear from the legislative history.
Davis practically compels this conclusion. Davis was decided in part on the assumption that the clerk's office had commenced to post proper notices of drawings and would continue to do so, the court stating:
546 F.2d at 588 n.17 (emphasis added).
Unlike the Fifth Circuit in Davis, we are not "left in the dark about the procedures employed behind closed doors," and we know that "improprieties"
Moreover, the clerk's office was cautioned a second time by the Fifth Circuit in Kennedy, decided only some two months after Davis. The Court of Appeals condemned the practice of soliciting "volunteer" jurors, concluding that this substantially violated the Act. Although the court ruled against the defendant, it warned the clerk's office that "had appellant properly preserved his objection to the practice, he would clearly have been entitled to relief." 548 F.2d at 612 (emphasis added). The clerk's office should have comprehended that it must follow the Plan by picking starting numbers by lot from a box or drum. Yet the jury clerk continued her nonrandom drawings despite warnings from the clerk of court to cease.
We are at a loss to understand why after two rebukes from the Fifth Circuit the clerk's office has continued to fail to comply with the express requirements of Act and Plan. That it has continued to do so highlights the need for adequate public notice to insure starting numbers were randomly selected in accordance with the Act and the Plan, and the public and litigants must have an opportunity to observe this process to insure that these abuses which have been the subject of judicial comment are no longer continued. We therefore find substantial violations of the Act and Plan have occurred by the regular utilization over an extended period of time of nonrandom selections of starting numbers, together with the persistent failure over a significant period of time to post the required notices.
Challenges Based on Objectivity: Exclusion Based on Disqualifications, Exemptions, and Excusals. 40
Of the 11,875 juror questionnaires which the jury clerks determined to be disqualified, exempt, or excused, and therefore excluded from the qualified jury wheels, defendants challenge that 1537 were erroneously excluded under the Act or Plan. To address the substantiality of this claim, the court has had to assume the tedious task of reviewing all of the questionnaires in issue. As previously stated, it is undisputed that the review of returned questionnaires for determination of excusals, exemptions, and disqualifications was performed largely by Turner, the jury clerk, and two or three assistants. The clerk of court apparently felt that he had gained familiarity with the requirements of the Plan in filling the 1973 master and qualified wheels by working closely with then-Chief Judge Sidney Smith concerning screening of the juror questionnaires. During the 1977 qualification process and as new qualified wheels were constructed, however, Carter, under then-Chief Judge Henderson, seldom, if ever, sought screening advice and contemporaneous approval of the Chief Judge or any other district judge. During this period, Carter was only occasionally consulted by jury clerks when they were unsure of whether a particular person should be excused, exempted, or disqualified.
Our analysis of the challenged questionnaires reveals exclusions from the qualified wheel which deviate from the Plan and Act in the following particulars:
1. Erroneous "Age" Excusals. The Plan provides that "all persons over 70 years of age at time of executing the jury qualification form" may be excused upon individual
2. Erroneous Disqualifications Based on Intradistrict Moves. Both the Act and the Plan provide that a person is qualified for jury service only if, inter alia, he "has resided for a period of one year within the judicial district." Plan at 89; 28 U.S.C. § 1865(b)(1). Although neither the Plan nor the Act disqualify individuals from service if they have not lived within a certain division of the court for one year, the clerk's office excluded at least 159 individuals because of interdivisional moves (both within and outside of one year prior to completion of the questionnaire) when these persons had resided within the district for one year prior to executing the questionnaire.
The Plan and Act provide for disqualification only if the prospective juror has not resided within the district for a period of one year. The voter registration lists provide the source for filling the master wheel; it is nowhere required that an individual be qualified to vote in the same division in which he resides, so long as his name was drawn from the voter registration list. We see no reason for disqualifying a person only because of an interdivisional but intradistrict change of residence. There is nothing in either the Act or the Plan to support the government's position in this respect. Any doubt must be resolved in favor of inclusion, not exclusion. Furthermore, the only reported decision on this topic fully supports our view that these exclusions were wrongful. In United States v. Rosenthal, 482 F.Supp. 867, 873 (M.D.Ga.1979), the court, faced with precise issue, summarily concluded:
Thus, while the court found that disqualifications based on intradistrict moves violates the Act, it held that the violation, based on number of persons affected, was not a substantial one.
3. Erroneous Excusals and Exemptions Based Upon Occupation. The Plan grants an optional excuse to "all ministers of the gospel and members of religious orders actively so engaged" and "all actively practicing attorneys, physicians, dentists, and registered nurses." Local Plan at 87-88. Furthermore, the following persons are exempt from service, and therefore automatically excluded from the qualified wheel regardless of request:
Id. at 88. Our review of the challenged questionnaires indicates that at least 72 persons were wrongfully excluded from the qualified wheel by reason of their occupation. The majority of these persons are registered nurses who did not request an excuse on that basis. The fact that these exclusions were intentional and not merely inadvertent is evidenced by the fact that in many instances the jury clerk underlined in red, for example, "registered nurse" on the questionnaire even though the prospective juror did not request an excuse on that basis.
4. Erroneous Excusals on the Basis of Having Previously Served on a Grand or
5. Other Exclusions Alleged to be Erroneous. Defendants also maintain that numerous other prospective jurors were excluded improperly from the qualified wheel by the clerk's office, largely because of insufficient medical documentation indicating the person was incapable of rendering satisfactory jury service. Since the medical disqualification, unlike the other grounds for exclusion previously discussed, allows some room for discretion on the part of the excusing official, we hesitate to substitute our subjective judgment for that of the clerk's office in many of these instances and find it unnecessary to do so.
The government contends that since the percentage of challenged questionnaires to mailed questionnaires is extremely small, defendants cannot establish substantial violations of the Act or Plan on grounds of objectivity. Our analysis of the applicable case law, however, compels us to conclude that a substantial statutory violation is presented when significant numbers of excusals, exemptions, and disqualifications have been wrongfully granted by jury personnel based on extra-statutory or plan considerations, especially when these actions are taken without the contemporaneous approval of a district court judge.
Section 1865(a), which was adopted in the Plan, provides in part as follows:
Thus, although a clerk may screen questionnaires and make recommendations to a district judge concerning exclusions from service, it is clear that § 1865 and the Plan contemplate active participation of a district court judge. It is no less clear that § 1865 requires that only competent evidence be used as a basis for disqualification, exception or excusal. The purpose of this requirement "is to prevent a disqualification from being made on the basis of subjective considerations, such as the unsupported opinion of the clerk or other such evidence that is not verifiable independently of personal feelings."  U.S.Code Cong. & Ad.News 1792, at 1803.
Several cases have discussed the question of whether usurpation of judicial functions
The court emphasized that
Id. (emphasis in original) (footnote omitted). Since defendants in that case failed to show that anyone was excluded from service on the basis of extra-statutory, subjective criteria, there was no substantial violation of the Act. Id. at 706-07. Thus, in Evans there was apparently no evidence of widespread, consistent and deliberate exclusion of persons from the qualified wheel as there is in the case sub judice.
The determination of excusals, exemptions and disqualifications of potential jurors by jury clerks was again discussed in United States v. Huber, 457 F.Supp. 1221 (S.D.N.Y.1978). In that case, however, there was apparently no evidence that persons were being wrongfully excluded from the qualified wheel by the clerks.
In United States v. Jenison, supra, the court found that the Act was violated since "prospective grand jurors were occasionally excused by jury section clerks without contemporaneous approval by a district court judge." Id. at 667. Notwithstanding violation, however, the court refused to dismiss the indictments because the excusals did not tend to frustrate the policies of the Act. In this regard, the court stated:
Finally, the Fifth Circuit has recently considered the question of whether delegation to jury clerks of judicial functions warrants dismissal of an indictment in United States v. Maskeny, 609 F.2d 183 (5 Cir.) (per Coleman, C. J.), cert. denied, 444 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980). While the court noted that Evans was not controlling since Maskeny involved exclusions of jurors rather than inclusions, it determined that dismissal of the indictments was not in order since defendants failed to show that "the clerk made erroneous determinations." Id. at 193 (emphasis in original).
These cases, in our opinion, stand for the proposition that a substantial statutory violation cannot be based solely on usurpation of judicial functions by jury personnel when there is no evidence that the clerk or his staff made erroneous determinations based on nonobjective, nonstatutory grounds. In the case sub judice, however, there is substantial evidence that the clerk's office made subjective, wrongful exclusions in a significant number of cases of prospective jurors based on nonstatutory grounds. These exclusions were granted because of the persistent failure to comprehend the specific objective criteria in filling the 1977 qualified wheels which both Congress and the district court deemed sufficient to warrant excusal, exemption, or disqualification. Of course, a certain number of clerical errors may be expected in any undertaking of the magnitude confronting the Northern District of Georgia. Nonetheless, this expectation may not justify or excuse the numerous and consistent wrongful exclusions which were the result of the application of nonstatutory and nonobjective grounds.
Erroneous Permanent Excuses by Jury Clerk After Summoning
Defendants challenge the practice of the jury clerk in permanently excusing from jury service persons summoned for grand jury duty. Specifically, they allege that the clerk made erroneous exclusions in 74 instances from 1978 until February 1980.
Our examination of joint exhibits 156 through 165 reveal that 10 grand juries were empaneled during the relevant time period. Five hundred persons were summoned for service; 45 summonses were returned to the clerk's office unserved.
Forty-one of the challenged excusals were based upon alleged "hardship" grounds. Fifteen of these individuals requested an excuse solely because of lack of transportation or fear of driving in downtown Atlanta,
Our concern with these challenged excusals is not so much with the fact that the jury clerk, rather than the district judge, granted hardship excuses; nor do we deem it appropriate to determine whether the district judge would have likewise granted such excuses. Rather, we find that these exclusions constitute serious violations of the Act and Plan since they were granted on a permanent basis when a temporary excuse, if any, was more appropriate.
The Plan is silent on the subject of hardship excuses. The Act, however, provides that "any person summoned for jury service may be (1) excused by the court, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person shall be summoned again for jury service." 28 U.S.C. § 1866(c). "Undue hardship or extreme inconvenience" is defined as follows:
28 U.S.C. § 1869(j).
The legislative history states:
 U.S.Code Cong. & Ad.News 1792, at 1804. In addition, the Fifth Circuit in Kennedy, supra, noted that "a prospective juror drawn from the qualified wheel cannot permanently escape service because of hardship or extreme inconvenience. Even if he or she meets the strict standard for the excuse, the prospective juror must serve as soon as the hardship or inconvenience terminates. 28 U.S.C. § 1866(c)." Id. at 612 n.6.
It is clear beyond peradventure, therefore, that the Act contemplates only temporary excuses for hardship reasons. Turner, however, permanently excused these individuals because she was of the opinion that their requests for temporary excuses could not be feasibly accommodated. In her view, someone was either permanently excused from the qualified wheel or was set over for another particular panel. Since grand juries were empaneled only four or
Turner was mistaken in her impression that temporary excusals could not be accommodated. Turner need only have provided the GSA with information relating to when a particular juror excused on hardship grounds would be able to serve. The computer then would have gone through the deferred names and picked any person who agreed to serve that month.
Similarly, Turner permanently excused from jury service all persons who were excused in court by the district court judge, regardless of the reason for the excuse.
Neither the Plan nor the Act grants an excuse for persons who have appeared in court to serve, but have not actually served, on a grand jury. Indeed, the Act makes a definite distinction between "appearing to serve" and "serving" by providing:
28 U.S.C. § 1866(e) (emphasis added). Like the Act, the Plan grants an optional excuse only if the individual "has served as a grand or petit juror." Local Plan at 88 (emphasis added). No excuse is available for those who have merely attended court for prospective service as a grand juror. The fact that the Act "contemplate that many persons who have been called but have not served may be called again" was recognized by the Fifth Circuit in Smith, supra, at 114.
Almost 50% of all persons summoned to serve on a grand jury were permanently excluded from the qualified wheel regardless of the reasons for which the excuse was granted. The practices of the jury clerk in permanently excluding from the qualified wheel virtually all persons who requested an excuse when summoned and virtually all persons who were excused in court by a district court judge, without regard to the reason for which a particular excuse was requested or granted, frustrate the Act's goal of granting exclusions from service on objective grounds only, and therefore constitute a substantial violation of the Act.
This case represents perhaps the most intensive and far reaching challenge of the administration of a federal judicial district jury plan since the adoption of the Jury Selection and Service Act 13 years ago. The record clearly discloses that both sides have undertaken close examination and scrutiny of hundreds of executed juror questionnaires and have closely studied the manner in which the Local Plan has been administered. Moreover, the arguments of able counsel have assisted the court in a penetrating analysis of the mechanics of administering the jury selection process in a large metropolitan district. It is beyond cavil, however, that Congress and the district court in devising its Local Plan emphatically and specifically address as matters of prime concern the need for obtaining a fair cross section of the community to serve as grand and petit jurors in the federal district courts, selected objectively through a random process. The painstaking and detailed care of Congress and the district court to devise specific methods to accomplish these goals would be whittled away if courts fail to require their observance by judicial officers as well as court personnel who are charged with the responsibility for administering the jury selection process. The rule of reason, which regards inadvertent, imperfect efforts as insubstantial, must require that the jury selection process not become infected with subjective extra-statutory standards, nor can the rule of reason allow authorized methods of randomness to be displaced by private whim.
For these reasons, the court will direct the entry of an order sustaining the motions to dismiss the indictments of the affected defendants without prejudice, of course, to reindictment by properly selected and drawn grand juries. The court is mindful of the public interest in the Northern District of Georgia in minimal interruption of the orderly processes of the federal criminal justice system; for that reason, the court has given priority to resolving this controversy as promptly as possible considering a lengthy record. Dismissal of the indictment is the remedy required by the Act for substantial noncompliance. However, the remedy here applied need not result in long delay of reindictment because the district's new master and qualified jury wheels must, by law, be filled not later than September 1, 1981.
Since new indictments are required, we see no basis for also granting the injunctive relief sought by the Federal Public Defenders Office, to make certain the requirements of the Act and Plan will be scrupulously followed in the future.
We wish to make clear that we do not believe that the jury clerk and her assistants
Our disposition of these cases on the foregoing grounds renders it unnecessary to consider the constitutional challenges raised by Rule 12(b) motions, F.R.Crim.P., previously bifurcated by this court on January 5, 1981.
(a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
411 U.S. at 241, 93 S.Ct. at 1582, 36 L.Ed.2d at 224.
The only case directly holding that constitutional significance attaches to the position of foreperson of federal grand juries is a district court opinion, United States v. Jenison, 485 F.Supp. 655, 661 (S.D.Fla.1979). That holding was premised on a view that the Supreme Court in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), which, although reversing the Court of Appeals, "had no disagreement with the Sixth Circuit's conclusion that `proof of discrimination in the selection of a grand jury foreman mandates the same remedy as does proof of discrimination in the selection of the grand jury.'" Jenison at 661. Jenison found the duties of the state grand jury foreperson indistinguishable from his federal counterpart. Id. Sitting as a district judge by designation, Circuit Judge Hatchett found statistical evidence pertaining to gross underrepresentation of blacks as forepersons (14.6% absolute disparity, 88% comparative disparity), and of women as forepersons (43% absolute disparity and 81% comparative disparity). All of the sitting judges in the Southern District of Florida testified that they made their selections of forepersons and deputies without regard to race or sex. It seems critical to the successful rebuttal of the defendants' prima facie case that the court ruled that "[i]t is within the [federal] judge's discretion to appoint the person he deems most qualified to the office of foreperson. See, Rule 6(c), Fed.R.Cr.P." Jenison at 666 (emphasis original). Rose v. Mitchell, supra, assumed, without deciding, that the foreperson of Tennessee's system, which permitted the grand jury foreperson to be appointed by the judge from the public at large and not from the veniremen chosen at random as were other members of the grand jury, had constitutional significance. Since the Sixth Circuit Court decision holding the Constitution was violated was reversed on appeal, the precedential value of that holding, at least as it appertains to the federal grand jury system, remains debatable. We are mindful that on two occasions, the Fifth Circuit, in two state prosecution cases, had assumed that "the right to a grand jury selected without regard to race applies fully when only the selection of the foreperson is at issue rather than the selection of the entire grand jury venire." Williams v. State of Mississippi, 608 F.2d 1021, 1022 (5 Cir. 1980) (construing Mississippi law). The same assumption was made in Guice v. Fortenberry, 633 F.2d 699, 703 n.6 (5 Cir. 1980) (interpreting Louisiana law).
Our reading of these cases, save for the Jenison decision, is that appointment by a judge under Rule 6(c) of a foreperson and deputy foreperson in a federal grand jury drawn randomly and from a fair cross-section of the community, pursuant to the mandates of 28 U.S.C. § 1861 et seq., and an approved district court plan, presents an issue of constitutional dimension which remains to be fully explicated and authoritatively decided by appellate authority for the guidance of district judges.
Assuming constitutional significance of the position, defendants rely primarily on Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), and Rose v. Mitchell, supra, as establishing the standard to be applied in determining whether an adequate showing of discrimination has been made. Although these cases were brought under the Equal Protection Clause of the fourteenth amendment, they are applicable here since "if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment." Johnson v. Robison, 415 U.S. 361, 364 n.4, 94 S.Ct. 1160, 1164 n.4, 39 L.Ed.2d 389, 396 n.4 (1974).
We view this deviation from statistical randomness as minimal. See note 36 infra. However, we do not agree with the government that United States v. Blair, 493 F.Supp. 398 (D.Md. 1980), so interpreted the Act under its randomness provisions. In Blair, the increment number used for selection from the qualified wheel was generally too small. Therefore, each jury panel contained too many names. The clerk eliminated excess names by dropping from the bottom of each panel persons whose names began with X, Y and Z. Although Blair discussed randomness, the court held, following Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and United States v. Test, 550 F.2d 577 (10 Cir. 1976) (en banc), that persons having surnames beginning with X, Y and Z do not constitute a "distinct group" in the community. 493 F.Supp. at 410. Thus, Blair's analysis is based upon the independent requirement of a fair cross-section of the community, or cross-sectionality, and not upon the Act's requirement of randomness.
When there is an unanticipated shortage of available petit jurors drawn from the qualified jury wheel, the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title.
546 F.2d 589 n.19.
It is also true that, to the extent that the bill does provide for random selection, it does not insist upon randomness in the sense in which that term might be understood by statisticians. Many districts may seek the aid of statisticians in developing systems of selection that do meet the standards of that profession, and they are encouraged to do so. No doubt such systems enhance the likelihood of attaining the cross sectional goal of the bill. But for reasons of administrative feasibility your committee did not deem it necessary to require the use of random selection in the statistical sense. It is sufficient for the purpose of this legislation if the plan adopts some system of selection that affords no room for impermissible discrimination against individuals or groups.
Thus, for example, the plan may specify selection of every 70th name from the voter list, or every name at the bottom of a page in the list, or all the names on the list, even though in certain cases statisticians might not agree that truly random selection would be the result. Likewise, in drawing names from the mastet (sic) and qualified jury wheels some similar processes may be designated. Under this definition of randomness, the plan may also permit courts to continue to use "rotation methods" or "jury pools" in assigning persons to grand and petit juries, provided that these methods, too, are free from any taint of impermissible discrimination against groups or individuals.... S.Rep.No.891, 90th Cong., 1st Sess. 16 n.9 (1967).
Like disqualified persons, those who are exempt are barred from jury service. 28 U.S.C. § 1863(b)(6). This category must include the following persons:
Although the Local Plan, under § 1863(b)(6), may provide for exemption of such other groups of persons as the district court finds would be in the public interest and consistent with the Act's purposes, the Northern District of Georgia has elected to exempt only the classes of persons required by the Act.
Persons excused from jury service are, on individual request, relieved of their obligation to serve on juries. The Act empowers the district to specify, in its Local Plan, groups of persons or occupational classes whose members shall be excused because jury service would entail undue hardship or extreme inconvenience to them, provided excusal would not be inconsistent with the purposes of the Act. The Act does not identify any such groups, but the district's Local Plan lists the following as those who should be excused from jury service:
Local Plan at 88.
Government's Exh. 93 shows that 16 persons over age 70 were included in the qualified wheel for the Gainesvill Division. Since two of these individuals had requested to be excused (Gov. Exh. 93 5 and 93 12), only 14 persons over age 70 were properly included.
Government's Exh. 94 shows that 31 persons over age 70 were included in the qualified wheel for the Rome Division. Since four of these individuals had requested to be excused (Gov. Exh. 94 2; 7; 9; 19) only 27 persons over age 70 were properly included.
Government's Exh. 95 shows that only 6 persons over age 70 were included in the qualified wheel for the Newnan Division.
Thus, while 159 persons were properly included in the qualified wheels for the Northern District of Georgia, 43 persons under age 70 were improperly excluded on the basis of age and 135 persons over age 70 were improperly excused, for a total of 188 wrongful exclusions based on age.
457 F.Supp. at 1231.
Neither is United States v. Gurney, 393 F.Supp. 688 (M.D.Fla.1974), contrary to our decision. In Gurney, the district court found that, with only one exception, exclusions were not based on nonstatutory or nonplan grounds. Id. at 705.
Persons should not, of course, be allowed to permanently escape jury duty because of failure to attend.