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United States v. Zirpolo


decided: February 19, 1971.


Kalodner, Seitz*fn* and Aldisert, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

A federal grand jury in Newark, New Jersey, returned a nine-count indictment charging two conspiracies and seven substantive violations of 18 U.S.C. § 1952.*fn1 The indictment became the target of more than 40 pretrial defense motions, one of which sought dismissal on the basis of alleged systematic exclusion of and discrimination against women in compiling the grand jury lists. The district court denied this motion, United States v. Zirpolo, 288 F. Supp. 993, 1014 (D.N.J.1968), on the strength of its prior decision in United States v. American Oil Co., 286 F. Supp. 742, 745 (D.N.J.1968):

"There has been no showing of any exclusionary procedure directed at a cognizable class forming a component of a fair cross-section of the community. Both men and women are represented in substantial numbers on all jury lists, even if disproportionately."

Though several grounds for reversal are assigned in these appeals, we address ourselves solely to the contention that the procedure utilized in the selection of the grand jury which returned the indictment is violative of federal law.

The procedure for grand jury selection in the District of New Jersey, Newark vicinage,*fn2 at the time in question is not in dispute. As set forth in the brief of appellant Colonial Pipeline Company, and accepted by the government:

The clerk of the court maintains on file cards approximately 10,000 names collected from voter registration and organization membership lists of nine counties in the Newark area. The cards are segregated, within each county, by sex. When directed by the Court to draw a panel of grand jurors, the jury official proceeds as follows:

a. 350 names are taken from the segregated file drawers by county and sex in order to provide the following distribution of potential grand jurors * * * Men, 246; Women, 104.

b. The 350 cards are shuffled and deposited into the jury wheel.

c. From the jury wheel, 100 names (in the case of a regular grand jury) or 125 names (in the case of a special grand jury) are then drawn by the jury commissioner and the deputy clerk, and a typewritten list prepared showing the names in the order drawn. The persons are then summoned to appear for jury duty.

It is conceded that women comprise approximately 52.5 percent of the New Jersey population over 21 years of age.

In selecting the grand jury which returned the instant indictment, the names of 93 men (74.4 percent) and 32 women (25.6 percent) were drawn; 51 men and 20 women were excused, resulting in a revised grand jury panel of 42 men and 12 women. The actual grand jury was composed of the first 23 persons -- of whom 5 were women -- whose names remained after striking the names of those excused or unavailable.

Although this is the first time this selection procedure has been before us for review, the practice was the subject of exhaustive treatment by the New Jersey District Court in United States v. American Oil Co., supra. See also 249 F. Supp. 130 (D.N.J.1965), 253 F. Supp. 783 (D.N.J.1966). One explanation for the procedure was offered:

The Clerk of this Court has explained that the same general pattern is disclosed in the selection of grand and petit jurors, and that the panels drawn are initially weighted in favor of men. The object of this practice is stated to be not to exclude or limit women from participating on juries, but to achieve a better balance of men and women on juries in the light of the experience, over a period of at least 24 years, that more men than women request to be and are, for valid reasons, excused from jury service.

249 F. Supp. at 132.

Assuming that a weighted balance between the sexes was the objective of this unusual practice, we note that the aggregate statistics of the twenty regular and special grand jury panels drawn from April, 1958, through February, 1966, showed more women, 63.3 percent, requesting excuses than men, 50.2 percent, resulting in revised jury panels in the proportion of 76.6 percent men and 23.4 percent women.*fn3 Moreover, a review of the history of the selection procedure supports an alternate conclusion that there was never any rational explanation for the practice and that, "like Topsy, it just grew."*fn4 Indeed, interviews in 1966 with veteran federal judges, including members of this court, disclosed no recollection of how the practice of disproportional representation originated.*fn5

The government suggests that appellants may not be heard to complain without proof of prejudice. But the Supreme Court has heretofore disposed of the contention that prejudice must be demonstrated. In Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 265, 91 L. Ed. 181 (1946), it stated:

But reversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection. The systematic and intentional exclusion of women, like the exclusion of a racial group, Smith v. Texas, 311 U.S. 128 [61 S. Ct. 164, 85 L. Ed. 84], or an economic or social class, Thiel v. Southern Pacific Co., supra [328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181] deprives the jury system of the broad base it was designed by Congress to have in our democratic society. It is a departure from the statutory scheme * * * The injury is not limited to the defendant -- there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.

Conceding that a total exclusion of women, condemned in Ballard, would have invalidated the indictment, the government presses the argument enunciated in United States v. American Oil Co., supra, and relied upon by the court below, that a percentage exclusion of qualified females is not unlawful.

Basic tenets of our common law, as well as the provisions of the federal grand jury statutes, compel us to reject this conclusion. It has been a tradition in our law that a "proper jury * * * developed in harmony with our basic concepts of a democratic society and a representative government * * * [must be] a body truly representative of the community. Smith v. Texas, 311 U.S. 128, 130, [61 S. Ct. 164, 85 L. Ed. 84]." Glasser v. United States, supra, 315 U.S. at 85, 62 S. Ct. at 472. The insistence that the jury be "drawn from a cross-section of the community" is a uniquely "American tradition," Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 1181 (1946); the English "limitations * * * in the historical common law concept of the jury as a body of one's peers do not prevail in this country." Glasser, supra, 315 U.S. at 85, 62 S. Ct. at 472. And, although we cannot guarantee that the jury as finally selected will truly reflect this democratic standard, we do require that prospective jurors be selected "without systematic and intentional exclusion" of any group. Thiel, supra.

Whether the exclusion be total, as in Ballard, or only partial, as here, in denying representation to a substantial percentage of women, the ultimate objective of achieving a true cross-section of the community is ill-served. Any deliberate interference -- irrespective of purpose*fn6 -- with a random jury selection from a list of all qualified citizens cripples the cross-section ideal.*fn7 In Thiel, supra, invalidating a verdict in a civil action because day laborers were excluded from a federal jury panel, the Court cautioned:

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographic groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.

328 U.S. at 220, 66 S. Ct. at 985.

Thus, while a particular grand or petit jury need not "be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group," Swain v. State of Alabama, 380 U.S. 202, 208, 85 S. Ct. 824, 829, 13 L. Ed. 2d 759 (1964), the law requires that the "standards and designs prescribed by Congress be followed." Rabinowitz v. United States, 366 F.2d 34, 59 (5 Cir. 1966).

Prior to 1957 there was little uniformity in the selection of federal jurors. The divergent laws of forty-eight states imposed different standards of eligibility for federal jury service. The 1957 Civil Rights Act amendment to the jury service provisions of the Judicial Code of 1948 was designed to eliminate this diversity and to divest the federal system of those inequities which inhered in certain state practices.*fn8 It provided: "any citizen of the United States who has attained the age of twenty-one years * * * is competent to serve as a grand or petit juror." 28 U.S.C. § 1861. In establishing uniform standards of competency for federal jurors, "Congress was enacting a Civil Rights Act and intended to confer an additional civil right, i. e., the right to be a federal juror," Rabinowitz, supra, 366 F.2d at 54.*fn9 The New Jersey jury commissioner and the clerk denied this right to a substantial segment of qualified women citizens of the Newark vicinage.

In addition, 28 U.S.C. § 1863 provided:

(a) A district judge for good cause may excuse or exclude from jury service any person called as a juror.

(b) Any class or group of persons may, for the public interest, be excluded from the jury panel or excused from service as jurors by order of the district judge based on a finding that such jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.

(c) No citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color. * * *

As the Fifth Circuit ably expressed in Rabinowitz, supra, 366 F.2d at 53: "It would seem anomalous for Congress to create elaborate procedures for the district judge to excuse or exclude persons from jury service and at the same time to silently vest broader discretion in the unregulated hands of the clerk and the jury commissioner."

We find that the Newark practice made three unwarranted departures from the congressional schema: (1) it permitted the jury commissioner and the clerk to exclude or excuse from a jury panel those who by law were qualified to serve; (2) the criteria for exclusion were not those delineated with specificity in § 1863(b), and (3) there was no finding by a district judge of the statutory criteria; indeed the record is devoid of a rational explanation for the institution and continuation of the two-to-one male sex ratio.

Thus, the important consideration is not simply whether there was 100 percent or 50 percent exclusion of the female sex from the grand jury panel. Rather, the question is whether authority for the practice may be found in the statute. We conclude not only that the procedure was unauthorized, but that it constituted a patent violation of both the spirit and letter of federal statutory jury selection standards. The ineluctable result was "a less representative cross-section than a selection drawn from the statutorily qualified pool * * * [destroying] the 'right' to serve on juries which Congress intended to confer, as well as [destroying] the broad based cross-section Congress has designated for federal juries." Abbott v. Mines, 411 F.2d 353, 355 (6 Cir. 1969).

Any grand jury so selected has been improperly convened, and any indictment returned therefrom is void. Accordingly, any conviction based thereon shall not be permitted to stand. We conclude that because the procedure utilized to select the grand jury in the case at bar departed from the congressional mandate, the indictments were invalid, and the convictions will be reversed.

We recognize that the decision we reach here is at variance with two circuit decisions relied upon by the New Jersey District Court in American Oil Co., supra : Chance v. United States, 322 F.2d 201 (5 Cir. 1963) and King v. United States, 346 F.2d 123 (1 Cir. 1965). Technically, it is possible to distinguish Chance on the facts, for there the jury commissioner and the clerk performed no overt act to exclude any segment of the Florida community from participating on the federal grand jury. The majority reasoned that the Civil Rights Act of 1957 imposed no affirmative requirements on the officials in gathering names for the jury box and that "the law as it now stands places the officials under no mandatory or positive command; they are, on the contrary, controlled by one negative requirement: they may not discriminate, directly or indirectly." 322 F.2d at 205. Applying this standard to a procedure whereby the jury was selected from the list of all registered male voters and only those registered women voters who volunteered for jury duty, the court found no overt act of discrimination. Nonetheless, we prefer not to rest on this technical distinction and instead express our disagreement with the result reached by the majority in Chance ; we are more persuaded by the dissent of Judge, now Chief Judge, Brown which accepted the rationale of United States v. Hoffa, 196 F. Supp. 25, 31 (S.D.Fla.1961):

Could it be said in the present case that a jury panel from which all registered voters had been intentionally excluded was truly representative of the community? This Court does not think so. It is evident that a jury panel * * * [excluding] all women from jury service except the very few who registered for jury service in the State Courts, is not a fair representation of the community.

The grand jury was drawn from a panel which was selected contrary to the requirements of law; and since it is not necessary to show prejudice affecting any of the defendants, the indictment must be dismissed.

Moreover, it can now be said that there is questionable vitality to the panel decision in Chance in view of the later en banc decision of Rabinowitz, supra.*fn10

We have extreme difficulty with the laconic pronouncement in King, which treated in three paragraphs the propriety of excluding in a jury panel drawn from 29 cities and towns, including Boston, the names of all Boston citizens between the ages of 21 and 25 and over the age of 70. It was conceded that although these citizens were not qualified for jury service under Massachusetts law, the federal statute would have included them. The court commented that it need not reverse "simply to impress upon the district court the inadvisability of accepting the Massachusetts jury exemptions as appropriate in the federal court [where that court] has taken steps to assure that future juries will be drawn from the broader age bases." We are not impressed by reasoning which admits error, but washes it away with the suggestion of prospective regularity.

Because the invalidation of a grand jury selection process used in a federal judicial district carries with it potentially pervasive ramifications, we deem it important to consider the possible retroactive application of our holding. Of course, the great majority of criminal cases arising in the New Jersey District will not, in any event, be affected by the holding of this case. The Jury Selection and Service Act of 1968, P.L. 90-274, 82 Stat. 53, amending 28 U.S.C. § 1861 et seq., expressly prohibits the exclusion of women as a group from jury service. Moreover, even in those cases which arose prior to the adoption of the new federal jury standards, a challenge to the array of grand jurors must have been timely made; it is otherwise deemed to have been waived. Fed.R.Crim.Pro. 6(b); 12(b)(2), (3); Agnew v. United States, 165 U.S. 36, 17 S. Ct. 235, 238, 41 L. Ed. 624 (1897); Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114 (1912); United States v. Hoffa, 7 Cir., 367 F.2d 698, 709-710 (1966); Wright, Federal Practice and Procedure, Criminal § 102, at 159.

In passing on the question of retroactivity, the Supreme Court considers three factors:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, (1967); Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969); Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).

It is manifest that the considerations which require our rejection of the district court's former grand jury selection procedure are not grounded in the Constitution, Hoyt v. Florida, supra. Moreover, that procedure posed no demonstrated threat to the integrity of the fact-finding process. Only when such considerations are present is there a rational basis for retroactive application. E.g., Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to counsel), held retroactive in Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L. Ed. 2d 650 (1964); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (right to confront and cross examine witnesses), held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968) and Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968), held retroactive in Berger v. California, 393 U.S. 314, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (right to counsel on appeal), held retroactive in Smith v. Crouse, 378 U.S. 584, 84 S. Ct. 1929, 12 L. Ed. 2d 1039 (1964); Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1970) (right to counsel at sentencing), held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968); White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963) (right to counsel at preliminary hearings in which substantial rights may be adversely affected), held retroactive in Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968).

Generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively. The exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) was held not to be fully retroactive in Linkletter v. Walker, supra. The rule of Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1955), forbidding prosecutorial comment on the defendant's failure to testify was denied complete retroactive effect in Tehan v. United States ex rel. Shott, supra. Johnson v. New Jersey, supra, denied retroactivity to the landmark decisions of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. And this court in United States ex rel. Allison v. New Jersey, 418 F.2d 332 (1969), denied retroactivity to the doctrine of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), except as to those cases which were on final appeal on the date of the decision. United States ex rel. O'Connor v. New Jersey, 405 F.2d 632 (3 Cir.), cert. denied Yeager v. O'Connor, 395 U.S. 923, 89 S. Ct. 1770, 23 L. Ed. 2d 240 (1969).

The significant extent to which the court and administrators of the New Jersey district relied upon the prior state of the law is obvious. No defendant has ever tested the grand jury selection process by appeal to this court. It was, therefore, understandable that the district court was satisfied with the exposition of the law as set forth in American Oil, supra. Moreover, we have assumed throughout our deliberations that no suspect motive has underlain the development of this defective jury selection process. Had the reliance been less than absolute, a simple procedural change would no doubt have been instituted.

Finally, notwithstanding limitations on the applicability of this decision presented by the 1968 Act and Fed.R.Crim.Pro. 6(b) and 12(b), we are concerned that the application of full retroactivity could have a profound effect on the administration of criminal justice. Where a challenge to the jury selection process has been preserved and the statute of limitations has run, no new indictment could be returned. In cases in which the statutory limitation has not expired, reindictments and new trials would be required, creating serious, adverse effects on criminal trial calendars. The Supreme Court has relied on this factor in denying full retroactivity: United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) (line-up cases), held non-retroactive in Stovall v. Denno, supra ; McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) (on-the-record guilty plea colloquy), denied retroactive application in Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969).

All three considerations indicate that full retroactivity should not be accorded this decision. We therefore conclude that our decision, which invalidates the grand jury selection procedure utilizing a two-to-one ratio based on sex, shall apply only to those cases in which proper and timely challenges to the grand jury selection procedure were made and on which trials have not been had or, if trials have been completed, are on direct appeal on this date.

The judgments of conviction will be reversed.

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