ROSENBERG, District Judge.
Motions were here made by both defendants challenging compliance with jury selection procedures and to dismiss the indictment because of non-compliance in assembling a Grand Jury as provided by the Act of Congress. The defendants were indicted by a Grand Jury of 21 persons. The indictment was dated and filed February 27, 1969.
At the argument and hearing on the motions in open Court the Act of Congress, March 27, 1968, Pub.L. 90-274, 28 U.S.C. §§ 1861-1866, was introduced into evidence, as was the Plan adopted by the United States District Court for the Western District of Pennsylvania, and as the same was approved by the Circuit Panel.
Counsel for the defendants charge that while the Plan sets forth a voting population of 1,695,571, the basic figure should be 2,323,911. To support this contention counsel for the defendants introduced into evidence the United States Census of Population 1960 Pennsylvania General Population Characteristics, United States Department of Commerce, Bureau of Census Report. Counsel referred specifically to pages 40-230 through 40-247 to indicate that in 1960 the population of the over twenty-one year olds residing in the counties comprising the Pittsburgh division was 2,323,911 and the number residing in the counties comprising the Erie division was 323,554 for a total of 2,647,465 within the Western District of Pennsylvania. Counsel then attempts to persuade us that the difference in the figures as indicated by the 1960 Census Report and the figures utilized by the Western District indicates an irregularity and as such an obvious noncompliance with the statute.
The difficulty with counsel's arguments is that he did not show and candidly admitted that he could not show what happened during the period from 1960 through 1968, as to how many more persons became twenty-one years of age in that period; how many of the previously included persons became deceased; how many persons moved away or how many persons came into Pennsylvania, or other factual situations which might have been involved, and which would have caused demographic variations during the time interval in question. Furthermore, counsel has given no proof whatsoever of how many persons twenty-one years of age or older registered or failed to register as they may have been eligible in 1968.
The Act of Congress provides that the Plan adopted by each District shall
"(2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division."
The Plan of the United States District Court for the Western District of Pennsylvania provides as follows:
"Voter registration lists represent a fair cross section of the community in the Western District of Pennsylvania. Accordingly, names of grand and petit jurors serving on or after the effective date of this Plan shall be selected at random from the voter registration lists of all of the counties within the relevant division."