# United States v. Randy K. Gometz > Court of Appeals for the Seventh Circuit · March 13, 1984 · 730 F.2d 475 URL: https://www.frixlaw.com/law-library/cases/9471966 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Randy K. GOMETZ, Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** March 13, 1984 - **Citations:** 730 F.2d 475 - **Precedential status:** Published - **Opinion:** Dissent by Cudahy - **Judges:** Cummings, Pell, Bauer, Wood, Cudahy, Eschbach, Posner, Coffey, Flaum - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471966 ## How later opinions describe it (automated extraction) - noting that “Congress, rather than disapproving the element of nonrandomness implicit in any form of self-screening, wanted people who lacked a sense of civic obligation not to serve on federal juries, unless the number of “no shows” was so great that the qualified jury wheel … - holding that voluntarism is not entirely precluded in the federal system ## Opinion text CUDAHY, Circuit Judge, with whom CUMMINGS, Chief Judge, joins, concurring in part and dissenting in part. 1 If the discrepancy alleged here were not striking, I would not propose to place limi *483 tations on the discretion of the court clerks to ignore nonresponse to jury questionnaires. But, based on the level of nonresponse which has been alleged, the courts have a clear duty, imposed by Congress, to determine the facts and enforce limitations if the facts warrant. The theory adopted by Judge Rosenn’s proposed panel opinion was simple: a 30% return rate of questionnaires, coupled with substantial underrepresentation of non-whites or other legally cognizable groups among those who returned questionnaires, would constitute a substantial failure to comply with the Jury Selection and Service Act. Because Gometz alleged these facts in accordance with 28 U.S.C. § 1867 , he is entitled to a chance to prove them. The basic principle of the Jury Selection and Service Act is that, beginning with a list which represents a fair cross section of the community in the district or division where the court convenes, jury panels and grand and petit juries are to be developed by a process of random selection. So long as the basic source list is adequate and the prescribed procedure is thereafter faithfully pursued, there can be no complaint merely because the ultimate panel produced by random selection is somehow unrepresentative in result. The relevant legislative history states: In short, the act attempts to achieve its cross sectional aim by insuring that the basic source list is adequate [as a community cross section] and that no procedure is employed that would impermissibly diminish the likelihood that a cross section will be attained. H.R.Rep. No. 1076, 90th Cong.2d Sess. 5 [“House Report”] reprinted in 1968 U.S. Code Cong. & Ad.News 1792, 1794 (emphasis supplied). The majority cites no authority for its conclusion that sending a single questionnaire which results in jury selection from a small minority of the community can under no circumstances be an impermissible deviation from the cross-sectional goal. With respect to the procedure for selecting the jury panel from a properly constituted (cross-sectional) source list, 28 U.S.C. § 1861 provides, that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. (Emphasis supplied). The majority admits and it is quite indisputable that selection on a basis of who returns a questionnaire and who does not is not random selection. The issue then becomes how egregious a condition of nonresponse must exist before “substantial noncompliance” with the Jury Selection and Service Act has been shown. The majority reaches the rather extreme position that nonresponse can never become a problem and that the lower limit on response is reached only if there are not enough potential jurors to fill the required places on juries. There is no authority whatever for this conclusion. The majority’s discussion of whether the clerks of court must resort to compulsory process to secure responses to questionnaires (and the suggestion of protesting citizens being dragged to the courthouse) is irrelevant. It is unlikely that raising a return rate from 30% to some more acceptable level would require compulsion. A simple reminder would probably be adequate to secure a much better return. And, in any event, the powers and proce *484 dures prescribed in 28 U.S.C. § 1864 to secure return of questionnaires suggest that Congress thought they might need to be resorted to under some circumstances. I agree with the majority that these compulsory methods were not provided to secure a 100% return of jury qualification forms but there is certainly nothing to suggest (particularly in light of the statutory powers provided him) that the clerk’s discretion to ignore the problem of non-return is unlimited. The government has not denied that only 30% of the questionnaires sent out have been returned. 2 This is far below the level suggested in any reported case which has been brought to my attention. See, e.g., United States v. Santos, 588 F.2d 1300, 1303 (9th Cir.) (87% response), cert. denied, 441 U.S. 906 , 99 S.Ct. 1994 , 60 L.Ed.2d 374 (1979); United States v. Carmichael, 685 F.2d 903, 912 (4th Cir.1982) (70% response), cert. denied, 459 U.S. 1202 , 103 S.Ct. 1187 , 75 L.Ed.2d 434 (1983); Broadway v. Culpepper, 439 F.2d 1253, 1257 (5th Cir.1971) (60% response). In the case before us almost three-quarters of the potential jurors have selected themselves out of the process. Gometz merely seeks an opportunity under these conditions to prove at a hearing that substantial nonrepresentativeness had resulted from this extreme degree of nonresponse. If nonrepresentativeness of the sample in some legally cognizable category is found to correlate positively with nonresponse, a nonresponse rate of 70% would almost certainly create a potential for substantial nonrepresentativeness of the persons selected for jury service. That is the simple proposition which Gometz has put, and I believe that he should have an opportunity to prove it if he can. His statistics may be incorrect and he may not be able to carry his burden of proof, but I do not believe that we can prejudge that matter here. The majority seems to suggest that the choices before this court are either to require 100% response with recourse to every sanction available in order to achieve it or, as noted, to accept a minimal response sufficient only to fill up the requisite juries. The black and white approach of the majority opinion is quite misleading. Under 28 U.S.C. § 1867 the touchstone of a defendant’s rights are a “substantial failure” to comply with the provisions of the Jury Selection and Service Act. Congress has delegated enforcement of the Act to the judicial branch through the procedures provided in 28 U.S.C. § 1867 (of which Gometz here has taken advantage) for challenge to jury selection methods. The applicable House Committee Report specifically “leavefs] the definition of ‘substantial’ to the process of judicial decision.” House Report at 5, reprinted in 1968 U.S.Code Cong. & Ad.News at 1794. Therefore, we judges are empowered to formulate standards to guide the clerks in their efforts to comply with the Jury Selection and Service Act. Common sense suggests that we need not require 100% return of jury questionnaires but, when the return rate drops as low as 30% so as to conspicuously impair the principle of randomness, it seems to me that we may reasonably find at least one prong of a “substantial failure to comply.” The defendant seeks a hearing to establish the second prong, substantial unrepresentativeness of persons in the jury pool. The majority thus ignores the statutory requirement of “substantial compliance,” as defined by the courts. “Substantial compliance” suggests some reasonable standard, less than 100% but appreciably greater than zero. In United States v. Santos, supra, the court said that “the clerk apparently believed that an 87% response to the questionnaires was sufficient. We do not disagree.” Id., 588 F.2d at 1303 . This statement does not suggest to me that the Ninth Circuit would regard a response rate of 30% or less as judicially unreviewable— *485 which seems to be the position of the majority. Similarly, in United States v. Carmichael, supra, the court stated at 685 F.2d at 912 : Finally, appellants argue that the Plan requires a 95% return rate of grand jury questionnaires and because the return rate for this grand jury was less — approximately 70% average — the fair cross section requirement of the Act was not met. A low return rate of questionnaires without some evidence that such rate caused underrepresentation of some group, does not amount to a substantial violation of the Act. Without other evidence, unfair cross section simply cannot be inferred. In the case before us, the return rate is not 70%; it is 30%. And, in any event, the Carmichael court does not suggest that even a 70% return is adequate; it merely notes the need for other evidence to establish the existence of an unfair cross section. Here, Gometz does not ask us to find that a 30% return is a per se violation of the Act. He simply seeks a hearing to demonstrate that this extremely low return rate has, in fact, resulted in unrepresentativeness. In Broadway v. Culpepper, supra, the Fifth Circuit said: In the posture of this record the showing that this voter list would produce a fair cross-section is itself inadequate. Out of 2,500 names only 550 were effectively available. And assuming, without deciding, that [all] of the 485 living and resident and the 500 returning but not signing the questionnaire were available, the fact remains that 40%' could not even be used in the process of selective or random choosing because 1,000 questionnaires were returned as undeliverable. A list — this constitutes the “universe”— which is only 60% useable is hardly a source reflecting the community from which a fair cross-section may be obtained unless there is proof — lacking here — that the composition of the 40%> remnant is comparable to the 60% available. 439 F.2d at 1257 . As Judge Rosenn noted in the proposed panel opinion, statistically speaking, the situation here is even worse than the one in Broadway, supra. Plainly, we cannot simply assume that the responding 30% of the population is characteristically and attitudinally a fair cross-section of the population. There are, as the majority points out, distinctions between Broadway and the instant case, but Broadway’s statistical analysis seems quite unexceptionable and in point. In principle, there is no difference between the case before us and United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865 , 98 S.Ct. 199 , 54 L.Ed.2d 140 (1977). In that case there was a deficiency in the number of jury prospects for a particular month and the jury clerk sought volunteers from the list of persons serving during an earlier month. Volunteering to serve as occurred in Kennedy , insofar as it affects randomness, is in principle no different than responding to a questionnaire. The Kennedy court said: We need not speculate as to what sort of biases will be reflected in the jury chosen on the basis of its members’ willingness to depart from their daily business and serve as jurors. It is enough to recognize that a substantial variable, not contemplated by the Act’s few, narrow categories of qualifications, exemptions, and excuses, has confounded the selection process. 548 F.2d at 612 (footnote omitted). In the case at bar, the 30%' of the jury list who responded to questionnaires are, in effect, volunteers. The 70%' who failed to respond are, in effect, non-volunteers. Gometz merely seeks an opportunity to show that this highly non-random process has resulted in substantial nonrepresentativeness of the jury wheel. Even if the language of the Jury Selection and Service Act were susceptible of two interpretations, mine and the interpretation the majority gives it (that Congress was indifferent to randomness in the opera *486 tion of the questionnaire system), we should opt for the interpretation that effectuates the plain Congressional intent. And there are clear expressions of Congressional commitment to random selection. We should thus decide what constitutes a substantial failure to comply with the Act in light of the overall Congressional purpose of randomness. The majority ignores that purpose, sweeping it under the rug by characterizing any attention to questionnaire return as “conscription.” Congress may not have intended a generally applicable system of “conscription.” But given the repeated references in the legislative history to the goal of “random selection” there is no doubt that Congress intended some reaction by the clerk to a response rate as extremely low as that alleged in this case. The majority’s references to Gometz’ sixth amendment rights are mystifying and lead away from the central problem of Congressional intent. This court has acknowledged that the Act may require a more perfect cross section than the constitution. See United States v. Dellinger, 472 F.2d 340, 365 (7th Cir.1972), cert. denied, 410 U.S. 970 , 93 S.Ct. 1443 , 35 L.Ed.2d 706 (1974). Whatever the relationship between the sixth amendment and the Act, Gometz has not made a sixth amendment claim and the majority’s discussion of the amendment serves merely to confuse. 3 Certainly the majority does not believe that Congress lacks power to prescribe jury selection standards more rigorous than the minimum intended by the framers. In summary, I do not think that any level of nonresponse constitutes a per se violation of the Act, but a 70% nonresponse coupled with a showing of substantial unrepresentativeness of the jury panel would so far depart from the principles of the Jury Selection and Service Act that a violation would be shown. The only thing that is before us now is whether a hearing should be provided in which the defendant would have the burden of showing the second prong of the requirements for a violation — substantial unrepresentativeness of the resulting panel in a cognizable category. This seems to me to be a minimalist view of our obligations to enforce the Jury Selection and Service Act. For these reasons, I respectfully dissent with respect to the claim based on nonresponse to questionnaires. . This case was originally heard by a panel consisting of Judge Posner, Senior Circuit Judge Max Rosenn of the Third Circuit, sitting by designation, and me. The proposed panel opin *483 ion was authored by Judge Rosenn. Judge Posner dissented from the panel opinion and I specially concurred. I am very much indebted to Judge Rosenn for providing the basic analysis followed in this dissent. For the panel, Judge Rosenn provided a careful discussion rejecting all of defendant's claims, including those involving jury selection, except the defendant’s claim requesting a hearing to determine whether there has been substantial underrepresentation of non-whites or other legally cognizable groups among those who returned questionnaires to the clerk of the district court. It is Gometz' theory that such substantial underrepresentation of non-whites or other legally cognizable groups coupled with a questionnaire return rate of only 30% would constitute a substantial failure to comply with the Jury Selection and Service Act. . The 30% figure is supported by an affidavit filed by Gometz’ attorney. A subsequent and unsolicited filing by the clerk of the court for the Benton Division after the en banc argument suggests that the statistics may be incorrect, but the government has not objected to them and certainly they must be accepted for purposes of this appeal. . In his reply brief, Gometz specifically disavowed any sixth amendment basis to his challenge to the jury pool and criticized the govcrnment for citing constitutional cases in response to his statutory arguments. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471966. Public record. Not legal advice.