(D.C. Criminal No. 71-169) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Seitz, Chief Judge, Aldisert and Rosenn, Circuit Judges
The jury found the defendant guilty, with sufficient evidence, of both counts of armed robbery of a federally insured savings and loan association. The defendant appeals on three grounds.
First, the defendant contends that the district court erred in refusing to suppress the in-court identification testimony as being derived from an improperly conducted lineup. The lineup was not held until March 10, 1972, and the trial began on March 15, 1972. At the lineup the defendant was represented by counsel. The defendant was identified with some qualifications by bank employees. At a pre-trial suppression hearing, the defendant argued that he was conspicuous in the lineup in his hair style, clothes, age, weight, and height. Additionally, he maintained that he was prejudiced by the conducting of the lineup a few days before trial. The district court held the lineup had been properly conducted. We hold that these differences between the defendant and the other participants are insufficient to support a holding that the district court erred in its determination to admit the in-court identification testimony. Further, while not necessarily approving the holding of a lineup close to the time of trial, we find no prejudice to the defendant therefrom. The in -court identifications were positive and the bank employees had sufficient opportunity at the time of the robbery to observe the robber.
Secondly, the defendant argues that the district court abused its discretion in refusing the defendant's requests for a continuance. Prior to and throughout the trial, the defendant requested a continuance because of his inability to locate two alleged witnesses who he thought might be able to establish that he was working as a mover in Pittsburgh on the day of the robbery. His counsel represented to the court that the defendant elected to try to reach these alleged witnesses himself from the county jail and did not want his counsel to make these efforts. The district court denied the requests because the defendant was unable to inform the court when, if ever, these alleged witnesses would be found. Since the district court could not delay the trial indefinitely, we hold that the district court did not abuse its discretion in denying the requested continuance.
Lastly, the defendant on numerous grounds challenges the Jury Selection Plan of the Western District of Pennsylvania (Pittsburgh Division) (hereinafter cited as "Plan") pursuant to which Plan the defendant's jury was selected. The Jury Selection and Service Act of 1968 (hereinafter cited as "Act") established that the defendant had the right to be tried by a jury "selected at random from a fair cross section of the community [of the Pittsburgh Division]" (28 U.S.C. § 1861) and from which "no citizen [was] excluded . . . on account of race, color, religion, sex, national origin, or economic status" (28 U.S.C. § 1862). The Act required "each United States district court [to] devise and place into operation a written plan for random selection of . . . petit jurors that [would] be designed to achieve the [above-mentioned] objectives of sections 1861 and 1862." 28 U.S.C. § 1863(a). Congress determined that the principal source of names for the random selection should be either "the voter registration lists or the lists of actual voters." 28 U.S.C. § 1863(b)(2). The Act also provided: "The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 . . . ." Id. (emphasis added). The sole source of names for the challenged Plan was the voter registration lists, based on the representation in section 5 of the Plan that "voter registration lists represent a fair cross section of the community [in the District]." The Plan was adopted by the Western District and approved by a "reviewing panel" in accordance with 28 U.S.C. § 1863(a).*fn1
The defendant had the right to a jury " selected at random from a fair cross section of the community." However, he had no right to be tried by a particular jury which was itself "a fair cross section of the community";*fn2 nor did he have a right to a jury selected at random from the fairest cross section of the community. Thus, the defendant must establish that the voter registration lists from which the selection of his jury was made did not represent "a fair cross section of the community." We hold as a matter of law that the defendant has failed to sustain this burden.
(a) The defendant argues that Plan's reliance solely on the voter registration lists rendered the Plan invalid because "some other source or sources of names in addition to voter lists [were] necessary to [provide 'a fair cross section of the community'] and [prevent exclusion 'on account of race']." 28 U.S.C. § 1863(b)(2). He alleges blacks in the Pittsburgh Division do not register to vote. Thus, the voter registration lists failed to provide a fair cross section of the community and their sole use excluded blacks from jury service. The defendant suggests the Social Security rolls, Public Assistance rolls, and census as possible "other sources of names."
In reviewing challenges to an approved plan (28 U.S.C. § 1863(a)), we "require that prospective jurors be selected 'without systematic and intentional exclusion' of any group." U.S. v. Zirpolo, 450 F.2d 424, 428 (3d Cir. 1971); Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414, 423-24 (3d Cir. 1955), cert. denied, 350 U.S. 971, 100 L. Ed. 842, 76 S. Ct. 442 (1956). Similarly, the Fifth Circuit in Camp v. U.S., 413 F.2d 419, 421 (5th Cir.), cert. denied, 396 U.S. 968, 24 L. Ed. 2d 434, 90 S. Ct. 451 (1969) stated:
Use of [voter registration] lists as the sole source of names for jury duty is constitutionally permissible unless this system results in the systematic exclusion of a "cognizable group or class of qualified citizens. " (emphasis added).
Therefore, the defendant must establish that blacks in the Pittsburgh Division choosing not to register to vote were a "cognizable group" ...