United States v. Lucian Lamar Sneed

VANCE, Circuit Judge,

concurring in the result:

Assuming that defendant established a prima facie case of race and sex discrimination in the selection of the foreperson of the grand jury that indicted him, I agree with the majority that the government rebutted the inference of discrimination. I would hold, however, that no prima facie case was shown.

The majority stresses what it perceives as the practical effect of the government’s position, but in so doing it overlooks the logical fallacy of its own. We have stated that “[defendants ... may challenge only improprieties affecting the particular grand jury which indicted them.” United States v. Bearden, 659 F.2d 590, 601 (5th Cir. Unit B 1981) (emphasis in original), cert. denied sub nom. Northside Realty Associates v. United States, 456 U.S. 936 , *1338 102 S.Ct. 1993 , 72 L.Ed.2d 456 (1982). Thus, to obtain relief from his conviction through an equal protection challenge to the selection of grand jury forepersons, a defendant must prove that unconstitutional discrimination affected the appointment of the foreperson serving on the grand jury that indicted him. See Rose v. Mitchell, 443 U.S. 545, 551 , 99 S.Ct. 2993, 2997 , 61 L.Ed.2d 739 (1979). Statistical analysis is simply a means of shouldering this burden, and the statistics employed must be tailored to that end. When the judges in a given unit do not select forepersons independently on the basis of individually established criteria, the decisions of all the group’s members may fairly be considered together because there is nothing to distinguish the selection process of one from that of any other: the judges’ decisions are, in essence, fungible. On the other hand, when a single judge makes foreperson appointments completely isolated from his colleagues and on the basis of separately developed criteria, the selections of other judges are simply irrelevant to the defendant’s claim of discrimination. In the latter situation there is no connection between the decisions of the one and the decisions of the others that can serve as a basis for viewing the entity allegedly discriminating against the defendant as the group rather than the individual. No one would seriously contend that the selection patterns of the judges in the southern district of California are, without more, relevant in determining whether discrimination colored this particular foreperson selection in the northern district of Georgia. I can perceive no difference between that situation and the present one other than the fortuity of geographical proximity, and I cannot ascribe to that difference the stature of a principled distinction. I would hold that when a judge appoints grand jury forepersons independently of his colleagues, a defendant who challenges his conviction on the grounds of unconstitutional discrimination in the selection of the foreperson of the grand jury that indicted him must demonstrate a pattern of discrimination by the empaneling judge. 1

The majority maintains that the issue has been decided in favor of a broader focus by prior decisions of this circuit. It is apparent, however, that although these and other cases have utilized figures representing the selections of several judges, until now the issue has never been squarely decided by any binding authority.

In its only opinion confronting the grand jury foreperson issue, the Supreme Court concluded that the evidence was insufficient to establish a prima facie case, and it therefore did not need to decide when, if ever, the proper statistical focus is on the individual judge. The petitioners in Rose v. Mitchell introduced evidence on the race of grand jury forepersons in Tipton County, Tennessee for only scattered years from 1951 to 1973. The state judge who had empaneled the grand jury that indicted the petitioners in November 1972 had served from 1966 until the time of the state hearing in 1973. 443 U.S. at 568 , 99 S.Ct. at 3006 . The petitioners’ prima facie showing rested on the testimony of three Tipton County forepersons who had served, respectively, in the early 1950’s and occasionally thereafter; for five or six years beginning in 1961 or 1963 and occasionally thereafter; and from 1971 to 1973. The Supreme Court assumed without deciding that the relevant time period was 1951 to 1973 and held that the petitioners had not established a prima facie case for three reasons. First, the petitioners offered no evidence at all concerning many of these years. Second, the witnesses testified simply that they personally did not know of any black forepersons, without demonstrating that they would necessarily have known had there been any. Third, the petitioners failed to prove the number of *1339 forepersons selected during the period, without which evidence it could not be assumed that even a total lack of black forepersons would satisfy the substantial underrepresentation requirement. Id. at 570-72 , 99 S.Ct. at 3007-08 . Each of these deficiencies applied as well to the period from 1966 to 1973. 2 Since “complete statistical evidence,” Bryant v. Wainwright, 686 F.2d 1373, 1378 (11th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 2096 , 77 L.Ed.2d 305 (1983), was lacking both for 1951 to 1973 and for 1966 to 1973, the defendants’ prima facie ease failed whichever period was viewed. The Court’s use of the longer period thus does not suggest that the Court intended to reject as the proper object of scrutiny the selections of a single judge acting independently. 3

Nor has any eleventh or former fifth circuit case definitively resolved this issue. 4 In United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982) (per curiam), the eleventh circuit did not hold that the foreperson decisions of all the federal judges in the district must be examined in determining if a prima facie case of discrimination has been established. The court did not even address the issue of the relevant universe, nor did it need to do so in order to reach its result. The court merely recited the trial court’s figures and proceeded to hold that the prima facie case was rebutted. Id. at 1387-88 .

*1340 United States v. Holman, 680 F.2d 1340 (11th Cir.1982), was decided subsequently to Perez-Hernandez and cited that decision in its discussion of the grand jury foreperson issue. In considering the relevant appointments, the Holman court noted that defendants’ grand jury was the first empaneled by Judge Lynn C. Higby and that no evidence was presented that he had discussed the selection process with other judges in the district. With these observations the court expressly reserved the “serious question ... as to whether statistics dealing with selections by other judges during the past ten years indeed prove anything at all with regard to the instant appointment by Judge Higby.” Id. at 1357 n. 13. The court simply assumed that a prima facie case was shown and based its holding on its conclusion that any prima facie case was rebutted. Id. at 1357 .

The former fifth circuit’s en banc opinion in Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981) (en banc), lends support to the government’s position. Although there were two judges sitting in Madison Parish, Louisiana when the petitioners’ grand jury was empaneled, see id. at 502 , the court considered only the past foreperson selections of Judge Adams, who empaneled the grand jury that indicted the petitioners. See id. at 502, 503-05 ; id. at 509 (Reavley, J., dissenting). 5 The court described the judge’s fifteen year tenure as “the relevant period” for evaluating the defendants’ prima facie case, id. at 503-04 , and it did not consider earlier appointments by other judges.

The uncontradicted evidence in this case was that Judge Vining did not discuss his foreperson selections with any other district judge. The grand jury that indicted defendant was the second empaneled by Judge Vining. Because “two foreperson selections are not an adequate basis on which to compute reliable statistics necessary for a presumption of race or sex discrimination,” Bryant, 686 F.2d at 1379 , I would hold that defendant has failed to establish a prima facie case under Rose v. Mitchell.

. Since the relevant universe consists solely of the appointing judge's decisions only when that judge utilizes an independent selection process, the majority’s prediction that adoption of the government's position would "make it nearly impossible for a federal defendant to make out a prima facie case of foreperson selection discrimination no matter how egregious the statistics might be” is unnecessarily bleak.

. The appointing judge in Tipton County during that period apparently selected forepersons for a five county area, see id. at 568, 99 S.Ct. at 3006 , but no evidence was presented concerning any past forepersons in the other four counties.

. Defendant argues that because in several cases involving equal protection challenges to grand jury selections the Supreme Court has looked to the acts of several jury commissioners and judges, we are bound to do likewise. See Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977); Eubanks v. Louisiana, 356 U.S. 584 , 78 S.Ct. 970 , 2 L.Ed.2d 991 (1958); Hernandez v. Texas, 347 U.S. 475 , 74 S.Ct. 667 , 98 L.Ed.2d 866 (1954); Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164 , 85 L.Ed. 84 (1940); Norris v. Alabama, 294 U.S. 587 , 55 S.Ct. 579 , 79 L.Ed. 1074 (1935). In none of the cited cases, however, is there any indication that the persons whose decisions were scrutinized acted independently pursuant to independently distilled criteria.

. In Bryant v. Wainwright the majority ruled that the petitioners failed to establish a prima facie case of race or sex discrimination in the appointment of Palm Beach County, Florida forepersons because under the facts the ten selections presented in evidence did not constitute a sufficiently large sample. 686 F.2d at 1378-79 . As with Rose v. Mitchell, this deficiency could not have been cured by looking only to one judge’s selections, and thus the court did not tacitly reject the latter approach.

Defendant heralds as his "most direct authority” Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm’rs, 622 F.2d 807 (5th Cir.1980), cert. denied, 450 U.S. 964 , 101 S.Ct. 1479 , 67 L.Ed.2d 613 (1981). The plaintiffs in Ciudadanos Unidos alleged that they had been discriminatorily excluded from consideration for grand jury service because of their membership in certain classes of persons, and they sought injunctive and declaratory relief. Id. at 812. See generally Carter v. Jury Comm’n, 396 U.S. 320, 329-30 , 90 S.Ct. 518, 523-24 , 24 L.Ed.2d 549 (1970) (finding no jurisdictional or procedural bar to such an attack). The defendants contended that no live case or controversy existed because each set of commissioners compiled only one grand jury list and because no members of one list automatically carried over to the next. 622 F.2d at 819-21 . The court acknowledged that "[ejach compilation of a grand jury list is concededly a discrete act,” id. at 820 , yet determined that a case or controversy existed because the plaintiffs had alleged a pattern of discrimination by earlier jury commissioners and that the current commissioners would continue the pattern. See id. at 820-22 .

In contending that under Ciudadanos Unidos we must view cumulatively all foreperson selections in the northern district of Georgia, defendant has failed to appreciate the significance of the postural differences between that case and the present one. Petitioner here is a criminal defendant seeking relief from an alleged discrete past act of discrimination — that which occurred in selecting the foreperson of the grand jury that indicted him. The petitioners in Ciudadanos Unidos, on the other hand, were plaintiffs challenging a series of allegedly discriminatory acts, both past ones and threatened future ones. In Ciudadanos Unidos any discrimination by any set of jury commissioners, though acting independently, constituted discrimination against the plaintiffs. Because here Judge Vining selected his forepersons independently, any possible discrimination by other judges in the northern district of Georgia was neither discrimination against defendant nor relevant to showing discrimination against defendant by Judge Vining.

. Three foreperson selections during this time had been made by other judges. Guice v. Fortenberry, 722 F.2d 276, 278 (5th Cir.1984).