Appendix — Test v. United States

o

Supreme Court, U. S$.

k1LED

APPENDIX AUG 5 1974

R..CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-5993

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI FILED DECEMBER 27, 1973

WRIT OF CERTIORARI GRANTED JUNE 17, 1974

No. 73-5993

JOHN E. TEst

Petitioner,

—_—V.—

UNITED STATES OF AMERICA,

Respoudent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

INDEX

Chronological List of Relevant Docket Entries

Plan of the United States District Court for the District of

Colorado for the Random Selection of Grand and Petit

Jurors, Filed October 4, 1968

Order Modifying Plan [for Random Selection of Jurors],

Filed April 25, 1972. senda

Defendant's Motion to Dismiss Indictment Because of De-

nial of a Fair and Impartial Jury, Filed January 2, 1973

Defendant’s Motion to Inspect, Copy and Reproduce the

Master Jury Wheel and Qualified Jury Wheel, and Exhibit

A attached thereto, Filed January 2, 1973

Transcript of Proceedings:

Excerpt of snmetines on Defendant's Motions, Filed June

7, 1973 . aw

Page

a)

13

i7

ii INDEX

Minute Order of the District Court, Filed January 24, 1973.

Opinion of the Court of Appeals, Filed November 1, 1973 .

Judgment of Court of Appeals, Filed November 1, 1973

Order Denying mand vad Court of am Filed No-

vember 26, 1973 .

Order granting motion for leave to aemeeil in forma pauperis

and granting petition for writ of certiorari - aa

6

37

1

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

October 26, 1972

January 2, 1973

January 23, 1973

February 27, 1973

February 28, 1973

April 6, 1973

—United States Grand Jury for the Dis-

trict of Colorado returned indictment

against Defendant for alleged viola-

tion of 21 U.S.C. § 841(a) (1).

—Defendant’s Motion to Dismiss Indict-

ment Because of Denial of a Fair and

Impartial Jury, and Motion to In-

spect, Copy and Reproduce the Master

Jury Wheel and Qualified Jury Wheel,

and Exhibit A filed in U.S. District

Court for the District of Colorado.

—Hearing in District Court on Defend-

ant’s Motions, and Order entered

denying opportunity to inspect master

and qualified jury wheels, and deny-

ing Motion to Dismiss Indictment.

—Tria!l to jury commenced.

—Jury returned verdict of guilty.

—Judgment of conviction entered, and

Deferdant sentenced to custody of

the Attorney General for eighteen

months.

April 13, 1973 —Defendant’s notice of appeal filed.

November 1, 1973 —Opinion and judgment of the Court of

Appeals for the Tenth Circuit.

November 26, 1973—Rehearing denied in the Court of

Appeals.

2

PLAN OF THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLORADO FOR THE RANDOM SELECTION

OF GRAND AND PETIT JURORS

Filed October 4, 1968

Pursuant to the Jury Selection and Service Act of

1968, Public Law 90-274 the following Plan is hereby

adopted by the Court subject to approval by a reviewing

panel and to such rules and regulations as may be adopt-

ed from time to time by the Judicial Conference.

APPLICABILITY OF PLAN

The District of Colorado is hereby divided into divi-

sions for jury selection purposes, pursuant to section

1869 (e) of the Act, as follows:

DENVER DIVISION, consisting of the counties of:

Adams Gilpin Phillips

Arapahoe Grand Sedgwick

Boulder Jefferson Summit

Chaffee Lake Teller

Clear Creek Larimer Washington

Denver Logan Weld

Douglas Morgan Yuma

Elbert Park

GRAND JUNCTION DIVISION, consisting of the coun-

ties of:

Archuleta Hinsdale Montrose

Delta Jackson Ouray

Dolores La Plata Pitkin

Eagle Mesa Rio Blanco

Garfield Moffat Routt

Gunnison Montezuma San Juan

San Miguel

3

and PUEBLO DIVISION, consisting of the counties of:

Alamosa Custer Lincoln

Baca E! Paso Mineral

Bent Fremont Otero

Cheyenne Huerfano Prowers

Conejos Kiowa Pueblo

Costilla Kit Carson Rio Grande

Crowley Las Animas Saguache

MANAGEMENT OF THE PLAN

This Plan shall be managed by the Clerk of the Court

under the supervision and contrel of the Chief Judge

or in his absence or inability to perform his duties as

such, the District Judge who is present, in the District

and who is next in precedence shall perform such duties.

RANDOM SELECTION FROM VOTER LISTS

Voter registration lists represent a fair cross section

of the community in the District of Colorado. Accord-

ingly, names of grand and petit jurors serving on or after

the effective date of this plan shall be selected at random

from the voter registration lists of all the counties within

the relevant division. Where necessary, on direction of

the Chief Judge, from the voter list or city directories

or telephone books.

The selection shall be accomplished by drawing a

starting number by lot and, commencing therewith on

the voter registration list of each county in the division,

selecting that name with the remaining names to be

selected in multiples as ordered by the Chief Judge to

produce the number ef names required for the Master

Jury Wheel. If, for example, the starting number drawn

at random was number 25 and the ordered multiple was

50, the names selected in each county would be numbers

25, 75, 125 and so on throughout the county’s voter

registration list.

MASTER JURY WHEELS: The Clerk shall main-

tain a master jury wheel for each of the divisions with-

in the district; he shall also maintain a Grand Jury

4

wheel for the district. The names of ail persons ran-

domly selected from the voter registration lists of the

counties in a division shal] be placed in the master jury

wheel for that division. The minimum number of names

to be placed initially in these master jury wheels shall

be as follows:

1) Denver Jury Division. Four Thousand names or

at least one-half of one per cent of the total registered

voters for the designated counties, whichever is the

greater.

2) Pueblo Jury Division. One Thousand names or

at least one-half of one per cent of the total registered

voters for the designated counties, whichever is the

greater.

3) Grand Junction Jury Division One Thousand

names, or at least one-half of one per cent of the total

registered voters for the designated counties, whichever

is greater.

The Chief Judge may order additional names to be

placed in the Master Jury Wheels from time to time as

necessary.

Names shall be obtained for the Grand Jury Wheel

from the three Qualified Jury Wheels of the respective

divisions on « pro rata basis.

The Master Jury Wheel for the Denver Jury Division

shall be emptied and refilled as herein provided between

March 1 and September 30 in every odd numbered year

beginning in 1971.

The Master Jury Wheels for the Pueblo and Grand

Junction Jury Divisions shall be emptied and refilled

as herein provided every three years between March 1

and September 30 beginning in 1972.

COMPLETION OF JUROR QUALIFICATION FORM

The Clerk shall mail to every person whose name is so

drawn a juror qualification form, with instructions to

fill out and return the form, duly signed, and sworn to,

by mail within 10 days as provided by § 1864.

In any case in which it appears that there is an omis-

sion, ambiguity, or error in a form, the clerk shall re-

5

turn the form with instructions to the person to make

such additions or corrections as may be necessary and

to return the form within ten days.

Any person who fails to return a completed juror

qualification form as instructed, after further notice from

the Clerk, may be summoned, on direction of the Chief

Judge, by the Clerk tu appear forthwith before the Clerk

to fill out the qualification form.

EXCUSES ON INDIVIDUAL REQUEST

The district court hereby finds that jury service by

members of the following occupational classes or groups

of persons would entail undue hardship or extreme in-

convenience to the members thereof, and the excuse of

such members will not be inconsistent with the law,

and shall be granted upon individual request:

1) Persons over 70 years of age.

2) Actively engaged members of the clergy.

3) Women who have legal custody of a child or chil-

dren under the age of 10 years.

4) Actively practicing attorneys, physicians, dentists,

and registered nurses.

5) Persons who have served as a grand or petit jury

in a state or federal court within the past two

years.

6) School teachers in public, parochial, or private

schools actively teaching.

7) Sole proprietors of businesses.

8) Any person who resides more than 100 miles or

two hours travel time from the place of holding

court if called to serve on a petit jury.

9) Any person who resides more than 49 miles from

the place of holding court if called to serve on a

grand jury.

10) Persons who have the sole care of others who are

under disability.

11) Persons who do not have transportation available

to attend court sessions.

6

EXEMPTION FROM JURY SERVICE

The district court hereby finds that exemption of the

following groups of persons of occupational classes is

in the public interest and would noc be inconsistent with

the Act, and accordingly member: of such groups are

barred from jury service:

1) Members in active service in the Armed Forces

of the United States.

2) Members of the fire or police departments of any

State, district, territory, possession or subdivision

thereof.

3) Public officers in the executive, legislative, or ju-

dicial branches of the Government of the United

States, or any State, district, territory or pos-

session or subdivision thereof, who are actively

engaged in the performance of official duties.

Public officer shall mean a person who is either

elected to public office or who is directly ap-

pointed by a person elected to public office.

DETERMINATION OF QUALIFICATIONS,

EXCUSES, AND EXEMPTIONS

(a) The Chief Judge on his initiative or upon rec-

ommendation of the clerk shall determine solely on the

basis of information provided on the juror qualification

form and other competent evidence whether a person is

unqualified for, or exempt, or to be excused from jury

service. The clerk shall enter such determination in the

space provided on the juror qualification form and the

alphabetical list of names drawn from the master jury

wheel. If a person did not appeal in response to a sum-

mons, such facts shall be noted on said list.

(b) In making such determination the Chief Judge

shall deem any person qualified to serve on grand and

petit juries in the district court unless he—

(1) is not a citizen of the United States twenty-

one years old who has resided for a period of one

year within the judicial district;

7

(2) is unable to read, write, and understand the

English language with a degree of proficiency suf-

ficient to fill out satisfactorily the juror qualification

form;

(3) is unable to speak the English language;

(4) is incapable, by reason of mental or physical

infirmity, to render satisfactory jury service; or

(5) has a charge pending against him for the

commission of, or has been convicted in a State or

Federal court of record of, a crime punishable by

imprisonment for more than one year and his civil

rights have not been restored by pardon or amnesty.

QUALIFIED JURY WHEEL. The Clerk shall main-

tain separate qualified jury wheels for each division in

the district, and shall place in such wheels the names

of all persons drawn from the master jury wheel and

not disqualified, exempt, or excused pursuant to this

Plan. He shall insure that at all times at least 300

names are contained in each such wheel. Names drawn

from the qualified jury wheel shall not be made public

until the panel of jurors have been summoned and have

appeared at the courthouse provided that the Chief Judge

may order the names made public at an earlier date, or to.

be kept confidential in a case or cases when the interests

of justice so require.

ASSIGNMENT TO PANELS

The panel of jurors summoned as petit jurors shall

report in the jury assembly room. When a petit jury

pool is used their names shall be placed in a jury wheel

and sha!l be drawn therefrom at random in the number

required by each of the respective judges holding court.

Those so drawn shall report in that judge’s courtroom.

Those not selected to serve on a case, “left-over” jurors,

shall return to the jury assembly room to be available

for further assignment or to be excused on Order of the

Chief Judge.

8

GRAND JURY PANEL

Names of persons for grand jury panels shall be pub-

licly drawn at random from the Qualified Grand Juror

Wheel of the District of Colorado as directed by the

Chief Judge. Names placed in this wheel shall be ob-

tained from the three Qualified Juror Wheels of the re-

spective divisions on a pro rata basis.

JUROR QUALIFICATION FORM

The Jury Qualification Form prescribed by the Ad-

ministrative Office of the United States Courts and ap-

proved by the Judicial Conference of the United States

shall be used.

Pending the approval of a proper form by the Ju-

dicial Conference of the United States, the attached un-

official questionnaire shall be used.

EFFECTIVE DATE: This Plan shall become effec-

tive after approval by the reviewing panel of the Judicial

Council of the Tenth Circuit as such time thereafter

as the panel shall direct.

DATED at Denver, Colorado, this 3rd day of Septem-

ber, 1968.

/s/ Alfred A. Arraj

ALFRED A. ARRAJ,

Chief Judge

/s/ Hatfield Chilson

HATFIELD CHILSON,

Judge

/s/ William E. Doyle

WILLIAM E. DOYLE,

Judge

9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

IN THE MATTER OF

JURY SELECTION PLAN

ORDER MODIFYING PLAN

Filed April 25, 1972

The Jury Selection Plan of the Court was approved by

the Reviewing Panel of the Judicial Council of the Tenth

Circuit on September 18, 1968. It appears that Congress

has enacted into law a reduction of the minimum age

for Federal Jury service to age 18, and that our present

plan should be modified to include a full representation

of names of persons 18 years of age or older from the

voters registered for the 1972 General Election, so that

they may be adequately represented and included in the

Qualified Jury Wheels, not later than October 1, 1973.

It is, therefore,

ORDERED, subject to the approval of the Review

Panel of the Judicial Council] of the Tenth Circuit, as

follows:

1. That the Jury Selection Plan be modified by the

repeal of that portion which reads as follows:

“The Master Jury Wheel for the Denver Jury

Division shall be emptied and refilled as herein

provided between March 1 and September 30 in

every odd numbered year beginning in 1971.

The Master Jury Wheels for the Pueblo and

Grand Junction Jury Divisions shall be emptied

and refilled as herein provided every three years

between March 1 and September 30 beginning in

1972.”

2. That the Jury Selection Plan be modified and

amended by the adoption and inclusion of the following:

“The Master Jury Wheel for the Denver Jury

Division shall be emptied and refilled as herein

10

provided between January 1 and September 1 in

every odd numbered year beginning 1973.

The Master Jury Wheels for the Pueblo and Grand

Junction Jury Divisions shall be emptied and refilled

as herein provided every four years between Janu-

ary 1 and September 1, beginning in 1973.”

3. That this modification of the Jury Selection Plan

shall become effective upon the approval of the Review

Panel of the Judicial Council] of the Tenth Circuit.

DATED at Denver, Colorado, this 25th day of April,

1972.

BY THE COURT:

/s/ Alfred A. Arraj,

ALFRED A. ARRAJ

Chief Judge

United States District Court

PRESENT:

Alfred A. Arraj, Chief Judge

Hatfield Chilson, Judge

Fred M. Winner, Judge

Sherman G. Finesilver, Judge

11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Action No. 72-CR-352

UNITED STATES OF AMERICA, PLAINTIFF

v8.

JOHN E, TEST, DEFENDANT

MOTION TO DISMISS INDICTMENT BECAUSE OF DENIAL

OF A FAIR AND IMPARTIAL JURY

Filed January 2, 1973

COMES NOW the above-named defendant, by and

through his attorney, Walter L. Gerash of Gerash, Ger-

ash & Davis, and moves this Honorable Court to dis-

miss the above-numbered indictment because the Grand

Jury and Petit Jury arrays systematically exclude por-

tions of the community, thus denying the defendant a

fair and impartial jury and a jury of his peers.

AS GROUNDS THEREFOR, defendant states:

1. He is presently 28 years of age.

2. On information and belief, the master lists for the

grand and petit juries in question are formulated from

the voter registration lists of the State of Colorado, and

said lists exclude in disproportionate numbers persons

with Spanish surnames, students and blacks, thus vio-

lating 28 U.S.C. § 1962 and the defendant’s rights under

the Fifth and Sixth Amendments to the United States

Constitution.

3. On information and belief, the class of persons

who actually served on the Grand Jury in question and

will serve on the petit jury systematically excluded and

will exclude those persons under the age of thirty-five,

with Spanish surnames, of the Negro race, and students,

all in violation of 28 U.S.C. § 1862 and the defendant’s

12

rights under the Fifth and Sixth Amendments to the

United States Constitution.

4. That 28 U.S.C. § 1865 (b)(1) citing the qualifica-

tion that prospective jurors must reside within the judi-

cial district within a period of one year violates the due

process clause of the Fifth Amendment of the Constitu-

tion of the United States of America.

WHEREFORE, defendant prays this Honorable Court

to dismiss the above-numbered indictment for the above-

stated reasons, or, in the alternative, to afford the de-

fendant an evidentiary hearing at which time the de-

fendant will present proof of non-compliance with 28

U.S.C. § 1861 et seq.

GERASH, GERASH & DAVIS

Suite 2317, 1700 Broadway

Denver, Colorado 80202

222-8574

By /s/ Walter L. Gerash

Attorneys for Defendant

John E. Test

13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Action No. 72-CR-352

[Caption Omitted in Printing)

DEFENDANT’S MOTION TO INSPECT, COPY AND REPRODUCE

THE MASTER JURY WHEEL AND QUALIFIED JURY WHEEL

Filed January 2, 1973

COMES NOW the above-named defendant, by and

through his attorney, Walter L. Gerash of Gerash, Ge-

rash & Davis, and moves this Honorable Court to enter

an order allowing him to inspect, copy and/or reproduce

the Master Jury Wheel and the Qualified Jury Wheel

of the District Court pertaining to the Grand and Petit

Juries in the instant indictment.

AS GROUNDS THEREFOR, defendant states:

1. It is necessary to inspect such lists in order to

present evidence at a hearing in conjunction with mov-

ant’s Motion to Dismiss Indictment Because of Denial

of a Fair and Impartial Jury, filed herein.

2. The opportunity to inspect and copy such lists is

provided in the Jury Selection Act, 28 U.S.C. § 1867(d),

and is necessary to the vindication of defendant’s rights

under the Fifth and Sixth Amendments to the United

States Constitution.

3. A sworn statement concerning non-compliance with

28 U.S.C. § 1961 et seq. is attached to this motion as

“Exhibit A.”

WHEREFORE, defendant prays this Honorable Court

to enter an order permitting him to inspect, reproduce

and copy the records or papers used by the Clerk of the

Disirict Court in connection with the selection process

of the Master Jury Wheels and the Qualified Jury

14

Wheels of the Grand and Petit Juries in the instant

case.

GERASH, GERASH & Davis

Suite 2317, 1700 Broadway

Denver, Colorado 80202

222-8574

By /s/ Walter L. Gerash

Attorneys for Defendant

John E. Test

15

DEFENDANT'S EXHIBIT “A”

Filed January 2, 1973

STATE OF COLORADO )

) ss.

CITY AND COUNTY OF DENVER )}

WALTER L. GERASH, being first duly sworn upon

oath, deposes and says:

On November 8, 1972, in the District Court in and

for the County of Boulder, State of Colorado, in the

case entitled People of the State of Colorado v. Florencio

J. Granado, Criminal Action No. 5738, an all-day hear-

ing was conducted. This hearing was based on a motion

to quash the petit jury panel on the grounds that the

voter registration lists plan of selecting jurors system-

atically excludes persons with Spanish surnames, youths

under 30, students and workers. Prior to the hearing

the District Attorney confessed the inspection of the

qualified jury list.

At the hearing witness Marcela Trujillo, an expert

in romance languages, identified a certain amount of

Spanish surnames frem the 8,000 qualified jury list. She

testified that from the 8,000 there were 150 with Spanish

surnames.

The 1970 U. S. Bureau of the Census figures disclosed

that Chicanos 18 and over represent 5.42 percent of the

total population of people in the age group in Boulder

County. Those 21 and older made up 5.34 percent of

the total population.

Then witness George Bardwell, a mathematician from

the University of Denver, testified that the percentage

of Chicanos on the jury list of 8,000 was 1.92 percent.

Professor Bardwell said that the probability of 1.92 per-

cent occurring by chance was as unlikely as getting six

straight royal flush hands in poker. The mathematician

further testified that people 18 to 30 years of age rep-

resented 41.30 percent of the general population of Boul-

der County while those people 20 to 30 years of age con-

16

stituted 31.7 percent, according to the United States

Census. However, the number of people in the 20 to 30

age group represented only 17.5 percent of the jury list.

If jury members were truly selected at random, Pro-

fessor Bardwell testified, that one can reasonably expect

figures of 36.9 and 45.3 percent between 18 and 30.

These scientific findings have statistically exposed the

voter registration lists as being unrepresentative of the

defendant’s peers. This is the voter registration list sys-

tem used by the present plan of the United States Dis-

trict Court for the District of Colorado. There is prob-

able cause to believe that there is the same systematic

exclusion in the United States District Court and a

hearing should forthwith be held after the qualified list

is given to defendant’s attorney for inspection so that

a full fair hearing can be held.

The presiding judge also felt that there is systematic

exclusion but denied the relief because the Supreme Court

of Colorado stated that the voter registration list system

should continue a hear and refused to give full force and

effect the existing legislation that called for supplement-

ing the voter registration lists with other lists by March

of 1972.

/s/ Walter L. Gerash

WALTER L. GERASH

|Jurat and Certificate of Service Omitted in Prirting)

17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

72-CR-352

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

JOHN E. TEST, DEFENDANT

EXCERPT OF TRANSCRIPT OF HEARING ON MOTIONS

Filed June 7, 1973

Proceedings before the HONORABLE ALFRED A.

ARRAJ, Chief Judge, United States District Court for

the District of Colorado, beginning at 8:30 a.m., on the

23rd day of January, 1973, in Courtroom A, United

States Courthouse, Denver, Colodaro.

APPEARANCES:

J. TERRY WIGGINS, Assistant United States At-

torney for the District of Colorado appearing for the

Plaintiff.

WALTER GERASH, Attorney at Law, Denver, Colo-

rado, appearing for the Defendant.

[2] PROCEEDINGS

THE COURT: 72-CR-352, United States versus John

Test. Mr. Wiggins for the government and Mr. Gerash

for the defendant. The matter is before the Court on

several motions filed by the defendant. I shall go through

the motions myself and see what we need if anything in

the way of argument.

[8] Now, the only other two motions deal with the jury

selection process, and we have been through this several

times, Mr. Gerash.

18

MR. GERASH: Except I have a new wrinkle, Your

Honor.

THE COURT: All right. On the old wrinkles, there

is the same ruling.

MR. GERASH: Well, the Court is going to be very

surprised.

THE COURT: All right.

MR. GERASH: I had an opportunity to raise this

issue at the Tenth Circuit Court of Appeals, but un-

fortunately, the Tenth Circuit reversed it on a different

ground, so I have never gotten to the Tenth Circuit on

this issue. However, the Court will please note that my

affidavit that I attached to my motion to inspect pur-

suant to 28 USC 1867(d), which in my opinion makes

it mandatory for the Court to allow us to inspect and

says “shall,” but there is required an affidavit.

Now, basically, without my rereading my affidavit, I

tried a case before Judge Scott, entitled People versus

Florencio Granada. Granada was charged with assault-

ing a [9] police officer with his own pistol, and I had

a one-day hearing before Judge Scott. Boulder uses the

voter registration lists or they did at that time, and they

have not been supplemented by the Supreme Court as

they should have been in January of 1972.

The Supreme Court pursuant to the statute at that

time—it says that the Supreme Court or the court shall

supplement these lists by various other methods like—

THE COURT: You are talking about the state law.

MR. GERASH: Right.

THE COURT: All right.

MR. GERASH: But the reason that it is appropriate

here is that Bolder County uses the voter registration

lists, which the federal plan uses here. So, what hap-

pened, here’s what we did.

First, we went to the population census, in 1970 and

we found out that in Boulder County as to Chicanos,

Spanish surnamed people, there were about 5.42 percent

total population, and those 21 and older were 5.34 per-

cent of the total penulation, U. S. Census.

Then we went to the 8,000 qualified list, of the quali-

fied list, that is after throwing off people who had fel-

ad

19

onie. and people who are elderly and so forth. We find

only 1.92 percent of Spanish surnamed, and the mathe-

matician, George Bardwell, from the University of Den-

ver and University [10] of Colorado, where he taughi

also, stated that the probabilities of this disparity oc-

curring by chance was as unlikely as getting six straight

royal flush hands in poker. In other words, the prob-

ability of that happening is ten to the 38th power, so,

therefore, there is a high probability that this federal

plan that uses the voter registration lists apropos to

Spanish surnames, that these persons will be woefully in-

adequately represented.

Now, in Peters versus Kiff, this Supreme Court—now,

we are not talking about the Warren Court or the Holmes

Court, but this court, this Supreme Court—in Peters

versus Kiff stated that my client does not have to be

one of the minority group excluded. He can be Anglo,

White, but he is entitled to a cross-section of the com-

munity, so we have standing.

Now, also Professor Bardwell in analyzing the sta-

tistics as to age, also found that people 18 to 30 repre-

sented 41.3 percent of the general population of Boulder,

and that 20 to 30 constituted 31.8. However, when he

looked at the qualified list based on the voter registration

system, only 17.5 of the youth were represented, so they

were under-represented at least 40 percent, and this be-

ing a drug offense and utilization of drugs being an epi-

demic in the high schools and in the communities, we feel

the jurors from 18 to 30 would have a more sympathetic

attitude toward the defendant in this case, so it is a very

real thing, very real thing.

[ll] Professor Bardwell stated that the voter registra-

tion list absolutely excludes so much that in that case it

was three straight royal flushes in a row that young

people from 20 to 30 would be under-represented.

So I have before the Court my affidavit that shows

probable cause for this Court to be suspicious enough

for me to analyze the jury, the qualified list, so I can

show this Court by scientific evidence that Chicanos,

Spanish surnamed people and young people are syster-

atically excluded by the voter registration system.

20

Now, this Court and Judge Winner, and I believe it

was Judge Chilson—

THE COURT: Doyle.

MR. GERASH: Yes, Doyle, and Judge Chilson. In

fact, Judge Chilson in the Cordova case, which we even-

tually won in the Tenth Circuit on a different ground,

but in that case I made the argument to him and he

said and you said to me, “Well, how can we supple-

ment? How can we change it?” Well, I am ready to

tell the Court that.

THE COURT: All right, tell me.

MR. GERASH: All right, I am ready to tell the Court

that this federal government has the income tax returns

of almost all persons who work in this country, and I

think they can easily give us the income tax return and

we can choose from the income tax returns. They are

all IBM. We can get [12] the names. We can go to the

University of Boulder. They can go to the U. S. Census.

It is all patterned, and if we can’t get them, we can

supplement them with the University of Colorado, Uni-

versity of Denver, Metro State College. We can get the

young people. We can go to the people who drive cars

now even, young people. We can go to the registration

at the motor vehicle bureau. They have them all on IBM

systems. We can use the city directories. In fact, my

old affidavit said that Mr. Erickson stated that any

system that uses the voter registration list systematically

excluded at least half of the young people and minority

people and he gave the reasons, but this is an actual

court hearing.

Judge Scott thinks I am right, and the reason he

didn’t grant me my relief, and unfortunately I won the

case or else it would be in the Supreme Court, and it

seems like I can never get a high body to review it,

but I will, but anyhow, Judge Scott said that, “You

made your case, but since the Supreme Court postponed

the utilization of the supplementing of the list until ’73,

what am I going to do? They said they would do that

and it seems to me they would not overrule themselves.”

So I never had it resolved, but what I am trying to

say is my affidavit before the Court, and I am on all four

oe

21

squares, I have presented to this Court my affidavit. My

affidavit has tested the voter registration system and has

[13] found it horribly wanting by scientific evidence,

Your Honor. All I ask is the same thing to—all I want

is the qualified list.

THE COURT: How can you tell that a person is

black?

MR. GERASH: I am not talking about blacks.

THE COURT: Just Chicanos?

MR. GERASH: Absolutely, because the government

does it by the Spanish surname system of analysis and

I can tell with language experts like I did in Boulder

which ones are Spanish surnamed and which ones are not

and I can tell it absolutely and I can tell the age be-

cause the ages are given by the jurors in their applica-

tions and I can tell when young people have been sys-

tematically excluded.

THE COURT: We know that so far in our jury se-

lection there have been no jurors between the ages of 18

and 21. I am putting that on the record. There will be

starting this year, because we got the new registration

lists from '72. That’s the last one, and the young people

that registered will be a part of the overall reservoir.

aoa yo PR pao will be fine.

: Of names, so they are going to be in.

MR. GERASH: That will be woos me

THE COURT: It is not going to help you. I con-

cede to you, Mr. Gerash, that there are not—the per-

centage of Chicanos selected for jury service under the

system that we [14 utilize is less than the proportion of

population of the Chicano people in any given county—

I wouldn’t say in any given county, but in most, so we

concede that. We are starting with that, so what you

are looking at, the master jury wheel will prove. It will

prove what we concede, so the record shows that.

MR. GERASH: But, Your Honor, what I want to

show is that it is not a miniscule amount. It is a very

substantial amount, and since this Court has the power

or had the power since 1968 to supplement the list, to

supplement the list—

22

THE COURT: We cannot get your income tax, a copy

of your income tax return, Mr. Gerash. There is no way

that I know of that our court can get that unless it is

involved in a litigation, but we can’t write to the Treas-

ury and say, “Furnish a copy of all the income tax lists,”

and also that’s a ridiculous suggestion in my opinion be-

cause then you come back and say that the blacks and

Chicanos are the low-income people. They don’t earn

enough to file a tax return, therefore you are not getting

them.

MR. GERASH: The poor people pay most of the taxes

in this country.

THE COURT: Well, not income taxes. They may

pay sales taxes, but they don’t pay most of the income

taxes.

MR. GERASH: Another thing I would like to point

out, the further invidiousness of the voter registration

system [15] is this, if you don’t vote in the election,

either gubernatorial, congressional or presidential elec-

tion, you are purged from the list and we found that over

—almost as high as 25 to 30 percent of the people have

been purged from the lists.

THE COURT: Now, wait, you are not—we do not

have the list after the election. We get the list prior

to election time, so we get the registered voter. Whether

he votes or not, he is in this, if he was registered.

MR. GERASH: But, but I mean the new list, though,

he is automatically purged from the voter registration

list.

THE COURT: But he can reregister.

MR. GERASH: Right, but if he doesn’t, in other

words, if he is disenchanted with the electoral process, it

says therefore he can’t be a juror. I don’t think that

necessarily follows. He is a member of the community

and pays his taxes, and I have some statistics on that,

but what I am trying to say is certainly that in the

1970 election in fact, which was an election where a lot

of people didn’t vote, those persons have been purged.

Now, I do not know if you are still operating from

the ’68 list or the ’70 election, but if you are operating

under the ’70 election, those who did not vote in the ’70

23

election were purged, and if they didn’t reregister they

would not be on the ’70 list, and if you are still operating

under the ’68 list, certainly, there is going to be a lot of

young [16] people who were, you know, like 20, who

are four years—who have to be 25 vears of age, so

automatically you are going to lose people from 21

through 25.

What I am trying to say, Your Honor, is that I have

established probable cause through my affidavit that I

would like to look at and make a record to at least have a

hearing. I want to put my foot in the door to have a

hearing. The Courts have united for whatever reason,

but I think if I can amass a statistical analysis and

convince this Court, and I think my client is entitled to

a fair hearing, because we are under the grand jury

system, and if I can show that the composition of the

grand jury is woefully inadequate to deny my client a

consideration of his peers, then the indictment is no

good, and in fact I am not unique, Your Honor.

_I have in my hand United States versus Gray, Mo

lino, Thomas, Queros and Queros, C-iminal Action No.

72-279, in the District Court for the Western District

of Oklahoma, and several professors representing the

Indians, native Americans, who were arrested for pos-

sessing stolen goods from Washington, D.C., when there

was a sit-in at the Bureau of Indian Affairs, and they

have raised these same issues, perhaps a little more

uniquely specific to their jurisdiction. I painted a broader

picture. I haven’t gotten down to some of the unique

problems, but just one problem that is raised is this,

the Supreme Court of the United States [17] says that

you can’t exclude a person from voting because he has

a small residency. The act says you have to live in the

jurisdiction for one year. In other words, this jury se-

lection act, that part of it that states that he must

live in the jurisdiction for one year, is unconstitutional

because the Supreme Court said that you can vote if you

reside thirty days in—

THE COURT: Well, if our jury act is unconstitution-

al, you have no problems. Your motions are denied. You

can get it reversed on the grounds—

24

MR. GERASH: Well, that’s later, but I want to look

at the qualified jury list in order to have a hearing. In

r words, I want a hearing.

OTHE COURT: You are not going to have a hearing

in this ease. If you want to look at the jury list some

time, we will hire some extra help and you come down

and you can peek at it all you want to, but it’s not going

to be had in this case. I have told you that we concede

that the percentage of jurors that are black or Spanish

in surname is not a pro rata percentage that those groups

bear to the total population. We concede that.

MR. GERASH: All right.

THE COURT: That’s on the record. —

MR. GERASH: My position is, though, if I can show

it is so overwhelming, it is a violation of due process, and

I [18] can’t do it. I have nothing to go up to the Tenth

Circuit on if I lose this case to show that it is substantial.

THE COURT: Well, it is denied and we would wel-

come you to put in writing your suggestions as to how

the jury plan that’s in existence, and you have a copy

of it, you have been furnished a copy—if you will put

them in writing, we will explore them. We are search-

ing, frankly, for ways to supplement our list, and for

your information I have compiled and I have in my hand

here the population from the 1970 census in each county

in each jurisdiction in the State of Colorado, _and I

also have the number of Spanish surnamed people in each

county, and I also have the number of blacks in each

county in excess of 500. The census doesn’t have it

below that, and I paid for the book myself to get this

information.

MR. GERASH: Your Honor, for your edification I

think and help, and also for the record, the American

Criminal Law Review, Volume 10, No. 4, Summer of

1972, put out by the ABA, American Bar Association—

that’s in a symposium on the grand jury—this is sum-

mer, "72—the American Criminal Law Review has a

fantastic article on jury selection, mathematical method,

on Page 771, “Jury Selection, Mathematical Method,” by

David Kairys, and in his analysis he gives a little back-

ground, and what is very fascinating is that he states

25

this at Page 797. He says, “The source, Voter Registra-

tion List. No source may be used which is discrimina-

tory against a [19] cognizable group. Most courts con-

sidering the issue have held that voter registration lists

are a proper source for judicial selection,” citing the

cases. “However, voter lists may not be used when they

are actually a subterfuge for discrimination. Moreover,

some courts have suggested that voter lists are per se an

unconstitutional source since they are not representa-

tive of a cross-section of the community and they ex-

clude many persons who are statutorily qualified for

jury service,” and they cite the cases of Pullam versus

Green, 396 F 2d 251, at 255, a Fifth Circuit case of

1968.

THE COURT: Well, I am familiar with those cases.

I have your citations.

MR. GERASH: But, however, they also cite a United

States Department of Commerce, Bureau of Census, Pop-

ulation Characteristics, Voting and Registration in the

Election of November, 1968, Series P-20, Number 192,

1969, and there they cited a detailed federal report which

compares the characteristics of registered voters with the

characteristics of the whole population, factually sup-

porting the conclusion that voter lists are discriminatory.

This is the United States Government figures, U. S. De-

partment of Commerce, and also it says the report also

disclosed that those of lower incomes, educational and

job level, as well as those under 35 years of age, were

under-represented and this is precisely what my figures

showed before Judge Scott in the Bou!’er case of People

(20) versus Granada, and it is not just a theoretical

quibbling that youth and Spanish surnames are under

represented. It is substantial and it goes to the vitiating

of a fair trial.

THE COURT: All right, Court is in recess.

(Whereupon, at 9:10 o’clock a.m., the proceedings

were concluded. )

[Reporter’s Certificate Omitted in Printing]

26

MINUTE ORDER OF THE DISTRICT COURT,

JANUARY 24, 1973

Filed January 24, 1973

{Caption Omitted in Printing)

Motion to Inspect, Copy, and Reproduce the Master

Jury Wheel and Qualified Jury Wheel

Ordered: Arrangements could be made for defendant

through attorney Walter L. Gerash to do so, but denied

as to an issue in this case.

Chief Judge Alfred A. Arraj

United States District Court

es ee oe

27

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SEPTEMBER TERM, 1973

No. 73-1337

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

JOHN E. TEST, DEFENDANT-APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(District Court No. 72-CR-352)

Filed November 1, 1973

James L. Treece, United States Attorney, and J. Terry

Wiggins, Assistant United States Attorney, Denver,

Colorado, for Appellee

Louis M. Fischer, Denver, Colorado and Walter L. Ger-

ash, Denver, Colorado, for Appellant

Before CLARK,* Associate Justice; SETH and McWIL-

LIAMS, Circuit Judges.

PER CURIAM:

* Associate Justice, United States Supreme Court, Retired, sitting

by designation.

28

Appellant John E. Test stands convicted by a jury on

a one count indictment charging him with knowingly

and intentionally distributing a controlled substance, to

wit: Lysergic acid diethylamide (LSD) in violation of

2* U.S.C. § 841. On his appeal Test presents several

questions but only two have substance, i.e., (1) Was Test

eatrapped as a matter of law and (2) Did he have the

specific intent required by the statute. We have con-

cluded that neither point has merit and, therefore, af-

firm the conviction.

1. Facts and Circumstances:

John Test first met Peter Brophy, the Government in-

former, in October, 1971, as a customer at Brophy’s fish

market, Seafood Limited, located in the Happy Canyon

Shopping Center in Denver, Colorado. During the next

several months Test and Brophy developed a friendship.

Test performed odd jobs at Seafood Limited and he and

Brophy drank beer together occasionally; Test was in-

vited to Brophy’s home and met his wife. It appears

that at various unspecified times Brophy told Test that

he had prior dealings in smuggling marijuana from

Mexico to California, that he was a pilot and had used

a plane to bring the contraband into the United States,

and that he had invested his illegal profits in Seafood,

Limited. None of Brophy’s accounts of his trafficking in

illicit drugs was true.

By February 24, 1972, the relationship having con-

tinued, Brophy told Test that he would like to have a few

tablets to give some friends; and Test obligingly pro-

121 U.S.C. § 841 provides in pertinent part:

“(a) Unlawful acts.

Except as authorized by this subchapter, it shall be unlaw-

ful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a con-

trolled substance”.

21 U.S.C. §812 specifies that Lysergic acid diethylamide is a

Schedule I controlled substance.

29

duced seven tablets in a tinfoil packet which he said

were “probably mescaline and acid.” Brophy turned the

tablets over to Agents Ercole and Lochridge of the Bu-

reau of Narcotics and Dangerous Drugs; and a labora-

tory test revealed that they were LSD cut by a large

amount of stearic acid. Test denied giving the tablets

to Brophy. On March 13, 1972 Brophy called Agent Al-

len of the Bureau and arranged for Allen to come to

Seafood Limited to meet Test. Neither Brophy nor Test

had met Allen previously. Allen posed as Tom Stone

a ski instructor at Aspen and former associate of Bro-

phy in the drug traffic in California. Allen testified

that he told Test that he wanted to buy some cocaine

and that Test told him “he had a connection for cocaine

who could sell pound quantities . . .” quoting a price of

$11,000 per pound. They discussed the purchase of ap-

proximately two to five pounds. In addition Test said

he could supply . . . marijuana, hashish, LSD and

amphetamines.” No sale or distribution was made at this

meeting.

A second meeting between Agent Allen and Test

curred on March 15, 1972. While Brophy’s part in the

meeting is somewhat hazy, it appears that he overheard

a lot of the talk” but was not an active participant.

Test told Allen that “there would be a delay in the de-

livery of the cocaine” but that “he had been successful

in reducing the price of cocaine from $11,000 to $10,500”

and that he “had access to 40 pounds of marijuana

which he would be willing to sell for $145 a pound.” As

to cocaine, the two discussed a purchase price of $42,000

for four pounds. Apparently both parties then endeav-

ored to make a showing of good faith. Agent Allen dis-

played $15,000 in Government funds (Test claimed it

was $50,000) in the ee of his car. Test gave Allen

a marijuana cigarette saying that he ho h j

smoking it. When it became apparent, pty

Test could not produce any cocaine, Allen said: “I have

to show my people something” and asked Test “if he could

get any other substances.” Test replied “that he might

be able to get him some mescaline.”

30

Subsequently, on March 27, 1972, Brophy contacted

Agent Allen to set up a meeting for the purchase of 3,000

tablets of what was alleged to be mescaline. Allen met

Test the next day at Seafood Limited. The sale was

made inside a Government car parked in the shopping

center parking lot. Allen paid Test $450 and received

approximately 1000 tablets in a plastic bag. Test told

Allen that the tablets “were stamped out by his friends”

and that “he could get 50,000 tablets more.” He testified

that he had purchased the tablets two days earlier from

two friends in Pine, Colorado paying $400 for them and

leaving him a $50 profit on the deal.

Agent Allen testified that when he purchased the tab-

lets, he believed them to be LSD. “Most of the drugs,”

he said, “that we have encountered that have been re-

ferred to us, chocolate mescaline as they were called, in

fact turned out to be LSD.” Subsequent laboratory analy-

sis of the actual 1,018 brown tablets received by Agent

Allen disclosed that they contained LSD cut by phen-

cyclidine (PCP). The Government’s expert witness, Mr.

Ruybal, a forensic chemist with the Bureau of Narcotics

and Dangerous Drugs, testified at the trial that he had

analyzed more than five hundred separate samples of

drugs denoted as mescaline but that they normally did

not contain mescaline but were usually LSD by itself,

PCP by itself, or LSD cut by PCP. He stated that PCP

was a normal cutting agent for LSD.

2. Entrapment:

Test asserts that he was unquestionably entrapped as

a matter of law and should, therefore, have been acquitted.

His claim is based on Brophy’s alleged exploitation of

their friendship to set him up for the drug deal with

Agent Allen, Brophy’s false stories of his prior drug ex-

ploits, his introduction of Agent Allen under false pre-

tenses, Agent Allen’s repeated requests for the produc-

tion of drugs, and his showing of a large sum of money

despite the fact that Brophy and Allen knew Test had no

prior criminal record but kept after him on the theory

that he might have known some large drug traffickers.

31

Entrapment is a “relatively limited defense.” United

States v. Russei!, 411 U.S. 423 (1978). Entrapment as

a matter of law is the more limited in terms of its avail-

ability. It is rudimentary that entrapment as a matter

of law can only be found where it appears unmistakably

clear to the trial judge that undisputed evidence estab-

lishes that the criminal design originated with Gov-

ernment agents, was the product of their creative ac-

tivity and was implanted in the mind of an otherwise

innocent person totally lacking the requisite predisposi-

tion to commit the crime. Sorrelis v. United States, 287

a (1932), Sherman v. United States, 356 U.S. 369

In Sorrells, supra, the Supreme Court stated that when

a defendant claims entrapment:

“The Government in such a case is in no position to

object to evidence of the activities of its representa-

tives in relation to the accused, and if the defend-

ant seeks acquittal by reason of entrapment he can-

not complain of an appropriate and searching in-

quiry into his own conduct and predisposition as

bearing upon that issue. If in consequence he suf-

fers a disadvantage, he has brought it upon himself

by reason of the nature of the defense.” 287 U.S.

at 451, 452.

In line with this concept, this court has exhaustively seru-

tinized the record examining the conduct of informer

Brophy, ef Special Agent Allen as well as the conduct

and predisposition of Test. Construing the evidence in

the light most favorable to the Government, as we are

required to do, Glasser v. United States, 315 U.S. 60, 80

(1942), we are not persuaded that the conduct of the

Government’s agent and informer was so improper, over-

zealous or otherwise offensive as to amount to entrap-

ment as a matter of law. As the Supreme Court said

in United States v. Russell, supra: “Sorrells and Sher-

man both recognize ‘that the fact that officers or em-

ployees of the Government merely afford opportunities

or facilities for the commission of the offense does not

defeat the prosecution,’ 287 U.S., at 441; 356 U.S., at

32

372. Nor will the mere fact of deceit defeat a prosecu-

tion, see, e.g., Lewis v. United States, 385 U.S. 206, 208-

209 (1966), for there are circumstances when the use

of deceit is the only practicable law enforcement tech-

nique available.” At 435-436. ;

Here, Test contends he was tricked and enticed by his

friend Brophy—their friendship exploited. There is no

evidence in the record which conclusively establishes that

Brophy was a paid Government informer when he first

met Test. Nevertheless it is true that Test’s friendship

with Brophy had a bearing of Test’s delivery of the

seven tablets on February 24, 1972. However, Test was

not indicted or convicted for this distribution. Brophy

did utilize his friendship with Test to introduce him to

Agent Allen but thereafter played a decidedly unobtru-

sive role in the course of events leading up to Test’s

transaction with Agent Allen on March 28th. Neither

this mere introduction nor his actions as a go-between

for Allen and Test in arranging their meeting rises to

the level of entrapment as a matter of law. Nor can

Test successfully argue that his friendship with Brophy

had such a compelling spillover effect on him vis-a-vis

his relationship with Agent Allen that he was rendered

powerless to distinguish between right and wrong or to

refuse to cooperate with Agent Allen. Allen’s requests

for the production of drugs are a judicially acceptable

tactic especially since the solicitations involved here were

met with very little, if any, firm reluctance on Test’s

part. Furthermore, there is no evidence that Allen

threatened, cajoled or browbeat Test. Indeed, Test vol-

unteered extensive information about his drug connec-

tions, what types and quantities of drugs were avail-

able and presented Allen with various options and al-

ternatives. Nor was Agent Allen’s display of cash a fatal

flaw in the case when viewed in the context of the ne-

gotiations at that point. It was merely a showing of

good faith. Test’s quid pro quo was the gift of a mari-

juana cigarette. Finally, all the evidence concerning

Test’s continuous pattern of illicit drug activities and

his state of mind as revealed by his highly significant

admissions at the trial is convincing proof that he was

Pend. meee

33

no cats-paw for Brophy but was in reality a drug traf-

ficker. He fails to qualify as the “unwary innocent”

victimized by a pernicious criminal scheme wholly man-

ufactured by law enforcement officers. Sherman v. United

States, supra, at 372. His lack of a prior criminal record,

contrary to his claim, is not exculpatory.

Although the trial judge found, and we agree, that

there was no entrapment as a matter of law in this case,

the Government, citing Martinez v. United States, 373

F. 2d 810 (10th Cir. 1967), contends that Test was not

entitled to have the entrapment issue submitted to the

jury because he plead not guilty to the offense charged.

Whether or not this be so as a general rule,* a matter

we do not reach, it is clear that the Government’s case

here was in no wise prejudiced by the submission because

the jury found with the Government.

3. Specific Intent:

Test’s second line of defense is that he lacked the

specific intent required by the statute to commit the

offense for which he was convicted. He claims a judg-

ment of acquittal should have been entered on the grounds

that he did not knowingly and intentionally distribute

LSD, “although he may have had the intent to distribute

mescaline.” At the trial Test testified that he told Agent

Allen that he “might be ible to get him some mescaline,”

that subsequently he “purchased the mescaline” for $400,

that he sampled the tablets to be sure they were not

LSD, and that he dispensed over one thousand tablets

to Agent Allen on March 28, 1972, two days after he

purchased them, for $450. He stated he knew LSD was

illegal but “wasn’t sure” about mescaline.

Unquestionably it is the province of the jury to pass

upon guilt or innocence. Sinclair v. United States, 279

U.S. 749, 765 (1929). Where, as here, an essential ele-

ment of the offense charged is the specific intent to com-

mit it, the issue of intent is to be submitted to the jury.

Screws v. United States, 325 U.S. 91, 106-107 (1945).

* See, Sorrells v. United States, 287 U.S. at 439, 451-452.

- 34

Whether or not Test new the character of the substance

he was distributing or that his distribution was an illegal

act is not for this court to say. It is the jury’s function

and duty to weigh the conflicting evidence and draw rea-

sonable inferences therefrom in making its judgment.

And any claimed ignorance of the law on Test’s part is

no excuse. United States v. International Minerals &

Chemical Corporation, 402 U.S. 558 (1971).

Ye believe that was substantial credible evidence be-

fore the jury, both direct and demonstrative, from which

it could justly reach its verdict, and we are bound to

sustain it. Glasser Vv. United States, supra, at 80. To

hold otherwise would precipitate a headon collision with

the Seventh Amendment. U.S. CONST, amend. VII, At-

lantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,

et al., 369 U.S. 355 (1962).

We have closely examined appellant’s other conten-

tions and find no merit in them. Accordingly, the judg-

ment of conviction is affirmed.

A ffii-med

35

SEPTEMBER TERM—NOVEMBER 1, 1973

Before Honorable Thomas C. Clark, Associate Justice’,

Honorable Oliver Seth and Honorable Robert H. McWil-

liams, Circuit Judges

No. 73-1337

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv.

JOHN E. TEST, DEFENDANT-APPELLANT

This case come on to be heard on the record on appeal

from the United States District Court for the District

of Colorado and was argued by counsel. On considera-

tion whereof, it is ordered that the judgment of said

court is affirmed. It is further ordered by this court that

John E. Test, appellant, surrender himself to the cus-

tody of the United States Marshal for the District of

Colorado in execution of the judgment and sentence

imposed upon him within ten days from and after the

date of the filing of the mandate of this court in said

district court.

Howard K. Phillips,

Clerk

s/ Leon M. Islbeck

Deputy Clerk

36

Before Honorable Thomas C. Clark, Associate Justice’,

Honorable Oliver Seth and Honorable Robert H. McWil-

liams, Circuit Judges

(* Of the Supreme Court of the United States, Retired.)

No. 73-1337

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v,

JOHN E. TEST, DEFENDANT-APPELLANT

(November 26, 1973)

Tio matter comes on for consideration of the petition

for rehearing filed by the appellant.

Upon consideration whereof, the petition for rehear-

ing is denied.

/s/ Howard K. Phillips,

HOWARD K. PHILLIPs,

Clerk

37

SUPREME COURT OF THE UNITED STATES

No. 73-5993

JOHN E. TEST, PETITIONER,

Vv.

UNITED STATES

On petition for writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit.

On consideration of the motion for leave to proceed

herein in forma pauperis and of the petition for writ

of certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted limited to question 1

presented by the petition which reads as follows:

“1, Does the Jury Selection and Service Act of

1968, 28 U.S.C. § 1861 et seq., require that a de-

fendant be provided access to jury lists and other

jury records upon the filing of a sworn statement

in compliance with 28 U.S.C. § 1867(d) in support

of a motion to quash the jury and upon the presen-

tation of a prima facie claim of constitutional dim-

ension, i.e., the systematic exclusion of Mexican-

Americans from the jury array?”

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