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