be exclusive. See H.R. Rep. No. 1076, 90th Cong., 2d Sess. 13 (1968), reprinted in  U.S. Code Cong. & Admin. News 1792, 1802-03. Section 1865(b)(2) makes clear that capability to understand the English language is to be gauged according to the potential juror's ability to sufficiently fill out the juror qualification form, which, under 28 U.S.C. § 1869(h), requires the potential juror to provide certain personal information and to swear to, inter alia, his ability to understand English. While this standard may seem to be unduly low, it has been adopted to assure that, in accordance with the federal policy articulated in 28 U.S.C. § 1861, jurors represent a fair cross section of the community. See ABA Standards, supra, Commentary to § 2.1(b), at 55. Defendants have not contended that Polowyj does not meet this standard and was incorrectly determined to be qualified. See generally 28 U.S.C. § 1867 (challenges to compliance with jury selection procedures).
Aside from the initial juror selection process, defendants had their chance to assess Polowyj's ability to comprehend at the voir dire. As required (see Fed. R. Crim. P. 24(a)), they were afforded an opportunity to propose (through the court) questions to the jury panel which had not been asked by the court. That opportunity could have been used with respect to issues of jurors' comprehensive abilities. Indeed, determination of significant characteristics of potential jurors is the very purpose of voir dire. Having had their opportunity to assess the characteristics of the potential jurors, defendants chose Polowyj to be a juror in their case. That choice should be a binding one.
I have carefully studied the transcript of the in chambers proceedings in Bisher. It leaves me far short of a belief that Polowyj had any significant difficulty understanding the language. First, I note that when called into chambers Polowyj placed equal, if not greater, emphasis on his health reasons for seeking to be excused as he did on his asserted difficulty in understanding English. Accepting comprehension difficulties as one of his stated reasons, however, I can only echo Judge Broderick's comment that it is difficult to understand Polowyj's extreme delay in disclosing this comprehension difficulty to the court. If he was really in the dark as to what was happening, one would expect that he would have said so much sooner. Overall, Polowyj's stated reasons for seeking to be excused provoke deep skepticism. Unfortunately, it is not unknown for a person directly faced with the task of determining another's guilt or innocence to seek to retreat from that awesome responsibility. It is not hard to accept that such a reaction occurred here. Having fully considered the Bisher incident, I conclude that it is not sufficiently strong evidence to warrant further inquiry into Polowyj's understanding of the proceedings during trial of this case. At the time of trial, everyone believed Polowyj to be entirely capable to serve as a juror, and what has been presented does not cast sufficient doubt upon that ability to justify or require further inquiry.
Defendants' motion for a new trial based on the contention that one of the jurors did not sufficiently understand the English language will be denied.
ALFRED L. LUONGO / J.
This 20th day of December, 1977, for the reasons stated in open court following argument on November 18, 1977, and for the further reasons set forth in the foregoing Opinion, it is
ORDERED that the Motions of Raymond T. Pellegrini and Sebastian A. Barone for Arrest of Judgment, for Judgment of Acquittal, and for New Trial are DENIED. It is
FURTHER ORDERED that the defendants shall appear for sentencing at a date and time to be fixed.
ALFRED L. LUONGO / J.