Petition — Horton v. United States

Supreme Court, U. &

‘~ FILED

APR 27 1976

: ——

w?

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. €5-1567

BERNARD A. HORTON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEORGE W. REESE

Attorney for Petitioner

1802 Broadway

New Orleans, Louisiana 70118

(Telephone [504] 866-2703)

SCOFIELDS’ QUALITY PRINTERS. P O BOX 53096.N 0. 1A 70153 - 504/822 1611

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES:

Camp v. U. S., 413 F2d 419 (5th Cir. 1969) .......... 5

Labat v. Bennett, 365 F2d 698 (5th Cir. 1966) ....... 4

Thiel v. Southern Pacific Co., 328 U.S. 217, 66

i ED os cn cae ocho ns daveneuendbh baneens 4

STATUTES:

28 U.S. Code 1861 through 1869 ................. 2,5,6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

BERNARD A. H)JRTON,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE CHIEF JUSTICE WARREN

BURGER AND TO THE HONORABLE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Your petitioner, Bernard A. Horton, hereinafter

sometimes referred to as “Defendant” or “Appellant”

respectfully petitions this Honorable Court for a writ

of certiorari directed to the United States Court of

Appeals for the Fifth Circuit to review and reverse a

judgment of conviction and a sentence for a violation

of Section 7206(1) of Title 26, U.S. Code.

2

APPENDICES

A copy of the opinion of the United States Court of

Appeals for the Fifth Circuit, dated February 5, 1976,

attached hereto and marked “Appendix A”.

A copy of the judgment of the United States District

Court, dated February 12, 1976, attached hereto and

marked “Appendix B”’.

A copy of the Order of the United States Court of

Appeals for the Fifth Circuit, dated August 12, 1975, at-

tached hereto and marked “Appendix C”’.

Appendix D includes the first five pages of the Ran-

dom Jury Selection Plan, together with the final two

pages.

JURISDICTION

Jurisdiction is conferred on this Court by Section

7206(1) of Title 26, U.S. Code.

The judgment of the Co. *t of Appeals for the Fifth

Circuit was rendered on Fe. «ary 5, 1976, and applica-

tion for rehearing denied on March 8, 1976.

ONLY QUESTION PRESENTED FOR

REVIEW BY THIS PETITION

Whether the Random Jury Selection Plan for the

United States District Court, Eastern District of

Louisiana violates Sections 1861 through 1869 of Title

28 of the United States Code and the Sixth Amendment

3

to the Constitution of the United States in granting ex-

cuses from jury duty to “Persons actively engaged in

the operation of a one-man business.” See Appendix

D, page 21a. Appendix D includes the first five pages

of the Plan, together with the final two pages.

STATEMENT OF THE CASE

Defendant, Bernard A. Horton, was indicted by a

grand jury and convicted by a petit jury, all of the

members of which were selected in accordance with

the Random Selection Plan for the United States Dis-

trict Court, Eastern District of Louisiana and ap-

proved by the Fifth Circuit Court of Appeals.

This plan authorizes the excusal of ‘Persons active-

ly engaged in the operation of a one-man business”.

Appendix D, page 21a.

Petitioner attacked the Plan in the lower Court as

violative of the United States Constitution and Sec-

tions 1861 through 1869 of Title 28 of the United States

Code, but his conviction was upheld by the Fifth Cir-

cuit Court of Appeals.

ARGUMENT

Petitioner, in addition to being in disagreement with

the verdict in this case, applies for this writ because

the question presented cries for decision at the highest

level of legal and constitutional interpretation. The

question, baldly stated, is whether or not discrimina-

tion in criminal cases can only be recognized when it

4

operates against the lowly, the wage-earner or the

weak.

Petitioner is a lawyer, a “sole proprietor’ of his

business. Historically, he and his peers did not require

the judicial protection so acutely needed by the poor,

the wage-earner or the black.

A series of enlightened rules, too well known to re-

quire citatiof@l~““e riudefendant will be deprived of

a panel of his peers if he is black, if she is female, if he

is poor, if he is a wage-earner. Under the Plan under at-

tack here, a defendant may only suffer this depriva-

tion if he belongs to a somewhat faceless class iden-

tified as “persons actively engaged in the operation of

a one-man business”.

Certainly, if the class granted excuses were

wage-earners, regardless of the hardship on the wage-

earner, the Plan would be invalid legally or constitu-

tionally, for state or federal, grand or petit jurors.

Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984

(1946); Labat v. Bennett, 365 F2d 698 (5th Cir. 1966).

The only logical distinction possible between

““wage-earners’ and “sole proprietors” could be their

numbers.

The Appeals Court relies heavily on the fact that the

excusal of sole proprietors is not automatic. The ex-

cusals of wage-earners in Thiel and Labat are not

automatic excusais cases either. Those opinions and

others recognize the obvious fact that jury duty is an

5

onerous burden of citizenship and those who may, will

avoid it. Your petitioner and our government are en-

titled to their services.

The Appeals Court relied on Camp v. U.S., 413 F2d

419 (5th Cir. 1969), where registration lists were ap-

proved over the objection that all persons were not re-

quired to register. Petitioner has doubts about the

validity of Camp in view of other opinions, but itis not

necessary to contradict Camp. Persons who choose

not to register to vote cannot be identified by color,

sex, age, class or economic stratum. Sole proprietors

can.

The Appeals Court also relied on the recognized rule

that “the categorical exclusion of certain oc-

cupational groups from jury duty is permissible on

the bona fide ground that it [is] for the good of the com-

munity that their regular work should not be in-

terrupted.’ ” (Emphasis ours) Citing cases. Petitioner

agrees that this is the rule.

Two questions. First, are sole proprietors a “cer-

tain” occupational group? Answer — obviously not.

Second, is the sole proprietor excuse granted “for the

good of the community?” Answer — probably not, on

its face it appears to be granted for individual con-

venience.

In the same Plan, other excuses are validly

enumerated — doctors, attorneys at law, dentists,

ministers. It’s true that the rule is embodied in Section

1863, Title 28 that “any class or group of persons may,

for the public interest, be excluded... .”’, but, again, the

public interest is the issue.

6

The disruption of the public interest is difficult to

identify when a citizen is required to serve the judicial

system for a few days every year or two and we dis-

cover he or she is an accountant, abstractor,

acoustical consultant, actuary, adjuster, advertising

agent, air conditioning repairman, etc. or acontractor

in a thousand different specialties or a proprietor of a

thousand different specialties or a proprietor of a

thousand different types of retail outlets or service in-

dustries.

Petitioner was entitled to be indicted and tried by

jurors from the backbone of America. The vertebrae,

as groups, may be wage-earners, corporate execu-

tives, welfare recipients, educators and many others.

But, to exclude the contractors, the professionals, the

owners of small businesses leaves a vertebral gap that

is crippling to the American judicial system.

Finally, the Plan is clearly violative of Section 1862,

Title 28 of the United States Code which prevents dis-

crimination due to “economic status.” While no group

in America has the same economic status within

itself, probably no group is closer to an average than

sole proprietors.

While not legally essential to this argument,

petitioner notes that he does belong to the group which

has been excused from jury duty under the plan.

CONCLUSION

For the foregoing reasons, we pray, for certiorari,

reversal and romand.

Respectfully Submitted,

GEORGE W. REESE

Attorney for Petitioner

1802 Broadway

New Orleans, Louisiana 70118

Telephone (504) 866-2703

CERTIFICATE

I hereby certify that a copy of this petition has been

mailed, postage prepaid, by U S. Mail, to the Solicitor

General of the United States, Department of Justice,

Washington, D.C., and that a copy has been mailed,

postage prepaid, by U.S. Mail, to the United States At-

torney for the Eastern District of Louisiana, 500 St.

Louis Street, New Orleans, Louisiana, this ____ day of

April, 1976.

GEORGE W. REESE

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

ws

Bernard A. HORTON,

Defendant-Appellant.

No. 75-1530.

United States Court of Appeals,

Fifth Circuit.

Feb. 5, 1976.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before THORNBERRY, SIMPSON and MORGAN,

Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Bernard Horton was convicted by a jury

of willfully and knowingly subscribing false income

tax returns for the years 1968, 1969, and 1970. See 26

U.S.C. § 7206(1). Appellant's conviction followed from

his understating on his returns for the years in ques-

tion his gross receipts from the practice of law. The

present appeal challenges that conviction on three

grounds. We reject appellant's contentions and affirm

his conviction.

In response to appellant’s request pursuant to

F.R.Cr.P. 7(f) for a bill of particulars, the Government

2a

stated that it intended to establish appellant’s guilt by

the “specific item” method of proof. Appellant now

challenges the Government’s later introduction — in

Schedule VI and through the testimony of expert sum-

mary witness Rotolo — of evidence as to his total bank

deposits in 1968, 1969, and 1970. He argues that in-

troduction of this evidence created a fatal variance

between the Government's asserted method of proof

set out in the bill of particulars and the proof at trial

and, more specifically, that evidence of total bank

deposits is admissible only where the Government

proceeds under the ‘net worth” theory. To be con-

trasted with the specific item method of proof, the net

worth method hinges on a proven increase in the tax-

payer's net worth during the period in question in an

amount greater than that reported to IRS with the con-

sequent implication of unreported income. See, e.g.,

United States v. Meriwether, 440 F.2d 753 (5th Cir.

1971), cert. denied, 417 U.S. 948, 94S.Ct. 3074, 41 L.Ed.2d

668 (1974). The net worth method generates a cir-

cumstantial case laden with possibilities for error and

is, in turn, circumscribed in its use by a number of

limiting rules. See Holland v. United States, 348 U.S.

121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Merritt v. United

States, 327 F.2d 820 (5th Cir. 1964). For example, the

Government must establish opening net worth with

reasonable certainty and must investigate and show

false leads furnished by the taxpayer. E.g., Holland v.

United States, 348 U.S. at 135-36, 75 S.Ct. at 135;

Agoranos v. United States, 409 F.2d 833, 835 (5th Cir.

1969); Merritt v. United States, supra at 822-23.

The specific item method is, however, direct in its

operation. The usual strategy with the latter method is

—————_

3a

for the Government to produce evidence of the receipt

of specific items of reportable income by the defendant

that do not appear on his income tax return or appear

in diminished amount. United States v. Goldstein, 56

F.R.D. 52, 55 n.8 (D.Del. 1972); see Azcona v. United

States, 257 F.2d 462 (5th Cir. 1958); Lloyd v. United

States, 226 F.2d 9 (5th Cir. 1955). Appellant Horton's

prosecution presents a good example of the specific

item method of proof in income tax cases. Horton was

a lawyer in New Orleans with an extensive criminal

defense practice. Agents of IRS, working from rec-

ords supplied by appellant and from records in the

local court clerk’s office that showed those cases in

which appellant was attorney of record, derived the

namies of a large number of clients represented by

Horton during 1968, 1969, and 1970. The agents then

determined through a lengthy process of interviews

the amounts paid to appellant as legal fees by those

clients in the above years. Unfortunately for

appellant, the amounts his clients were willing to

testify to exceeded the amounts of gross receipts

stated on his income tax returns. Relying on the

testimony of appellant’s clients, the Government

successfully built its case and obtained aconviction.

We reject appellant’s argument that use of evidence

of total bank deposits created a fatal variance. In this

appeal, as was the case at trial, the Government

argues that evidence of total bank deposits was

properly admissible in corroboration of the testimony

of appellant’s former clients as to amounts paid him in

1968, 1969, and 1970. Many of the former clients called

by the Government possessed no documents or

receipts to substantiate their claims of payment to

appellant. The Government contends, correctly, that

4a

the evidence of total bank deposits corroborated this

unsupported testimony as to the fact of payment. The

corroborative feature of the bank deposits evidence

proceeds apace with the implication that appellant

handled and expended large sums of money, as would

be expected if the specific item testimony were true.

See United States v. McGuire, 347 F.2d 99 (6th Cir.

1965), cert denied, 382 U.S. 826, 86S.Ct. 59, 15 L.Ed.2d71

(1966); McKenna v. United States, 232 F.2d 431, 436-37

(8th Cir. 1956); United States v. Nunan, 236 F.2d 576, 588

(2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1

L.Ed.2d 665 (1957). For this reason, a,pellant’s fatal

variance argument is inapposite. The evidence of total

bank deposits during the years in question was

properly admissible as corroborative evidence in this

specific item prosecution and there was no variance.

Assuming for the purposes of argument only,

however, that a variance did exist between the method

of proof designated in the bill of particulars and the

Government's introduction of the total bank deposits

evidence, appellant has still failed to demonstrate that

the variance was fatal to the Government's case. The

purpose of the bill of particulars is to apprise the

defendant of the charges against him with sufficient

precision to enable him to prepare his defense, e.g.,

United States v. Bearden, 423 F.2d 805 (5th Cir. 1970),

cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68

(1971), and this purpose is particularly well-served in

complicated income tax prosecutions like the instant

one. The usual manner in which questions as to bills of

particulars reach this Court is on review of a district

court's denial of a defendant’s request for the bill. In

such cases, the standard of review is one of discretion;

viz., did the district court abuse its discretion? See,

»

ne —

5a

e.g., Buie v. United States, 420 F.2d 1207 (Sth Cir. 1969),

cert. denied, 398 U.S. 932, 90 S.Ct. 1830, 26 L.Ed.2d 97

(1970); Joseph v. United States, 343 F.2d 755 (5th Cir.

1965), cert. denied, 382 U.S. 828, 86 S.Ct. 65, 15 L.Ed.2d 73

(1966). In the instant situation, where a fatal variance

is argued, appellant must demonstrate that he was

taken by surprise by reason of the variance and that

such surprise prejudiced the preparation of his

defense. See United States v. Glaze, 313 F.2d 757 (2d

Cir. 1963); cf. Buie v. United States, supra. Appellant

Horton has not made and cannot make the requisite

demonstration. As early as the first day of trial, the

Government stated and defendant acknowledged in

their respective opening remarks that bank

statements and other documents connected with four

basic bank accounts used by appellant and his wife

would be introduced and analyzed. First Supplemen-

tal Record on Appeal, Vol. I at 7, 15. Appellant cannot

argue that the evidence of total bank deposits un-

reasonably impeded the adequate preparation of his

defense by reason of surprise.

Appellant also challenges the refusal of the district

court to give the jury an instruction limiting its con-

sideration of the total bank deposits evidence to cor-

roboration of the specific item testimony. The district

court relied on Azcona v. United States, supra, to sup-

port its denial of the requested instruction. This was

error. The Azcona opinion dealt with a district court's

denial of an additional bill of particulars in a specific

item prosecution; it did not address the problem of a

limiting instruction on corroborative evidence. We

hold that the district court erred in refusing the re-

quested instruction. However, we also find the error to

be harmless under the facts of the instant case. The

evidence against appellant was overwhelming, and

the bank deposits evidence was but an insignificant

portion of the Government’s total case. Moreover, the

colloquy that occurred between the Government, the

defense attorney, and the bench in the presence of the

jury when defense counsel objected to the introduction

of this evidence served as the functional equivalent of

a limiting instruction.

GOVERNMENT: Your Honor, we tender this

schedule into evidence as corroborative evidence,

not to be added to Exhibits 1 through 5 previously

admitted, but as separate corroborative evidence

to show the availability of cash as testified to by

witnesses who have testified previously.

DEFENSE: I object to the introduction of all of

this evidence as far as Schedule VI is concerned,

Your Honor.

THE COURT: Objection overruled; let it be ad-

mitted.

GOVERNMENT:

Would you give us the total amounts shown on

your schedules for the period we are concerned

with, Mr. Rotolo?

In 1968 the total deposits amounted to $31,-

511.80; in 1969, $52,499.25; in 1970, $43,835.99.

Now, did you prepare another schedule in con-

nection with all the preceding schedules?

Yes, sir. That's G-VII, I believe.

Would you identify that for us please?

©

o> O »-P

7a

THE COURT: Let me ask you first: These

amounts the witness has mentioned as being total

deposits, is it the government’s contention that

they represent the gross receipts on the books?

GOVERNMENT: No, Your Honor. Those

figures are only in corroboration of the witnesses

who have testified.

THE COURT: In 1970, for example, the un-

derstatement alleged here was $9,199.

THE WITNESS: That’s inclusive of all the

sources we used, Your Honor.

THE COURT: What?

GOVERNMENT: In other words, Your Honor,

we have introduced evidence of four types of

sources to indicate that $9,000 amount.

One of the important sources of that was the

testimony of witnesses, who did not have receipts

any longer that they paid, and we have intended to

show, by this corroborative evidence, that there

were bank deposits in this year of amounts which

will justify belief in those witnesses that what

they paid was received and deposited.

DEFENSE: And Ihave objected on the grounds

that I previously stated, Your Honor.

THE COURT: I just don’t want the jury to get

the impression that this is an addition to the $9,000

already mentioned. \

GOVERNMENT: Oh, no, sir.

THE COURT: All right; go ahead.

DEFENSE: Your Honor, also because of my

previous objection to Government Exhibit VI, on

the bank deposits, I also want to interpose an ob-

jection to Exhibit VII, where these figures are

carried over in an attempt to summarize the

figures, which I don’t think is proper.

THE COURT: Objection overruled. Go ahead.

Second Supplemental Record on Appeal, Vol. I at

1062-64. Accordingly, the district court’s refusal to

give the limiting instruction was harmless error. See

Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239,

90 L.Ed. 1557 (1946); United States v. Harbolt, 491 F.2d

78 (5th Cir. 1974).

As a second point of error, appellant attacks the

Government's use of prior statements by appellant's

clients, given to IRS agents at the time of their in-

vestigation, to refresh the memories of those

witnesses at the time of trial. Appellant’s contention is

answered by this Court’s opinion in Esperti v. United

States, 406 F.2d 148, 150-51 (5th Cir.), cert. denied,

Farinella v. United States, 394 U.S. 1000, 89 S.Ct. 1591,

22 L.Ed.2d 777 (1969).

es -

It is hornbook law that any writing may be used to

refresh the recollection of a witness. See Wigmore,

Evidence § 758. This is true even where the docu-

ment itself would be inadmissible as evidence.

Williams v. United States, 7 Cir. 1966, 365 F.2d 21.

Caution must be exercised to insure that the docu-

ment is actually being used for purposes of

refreshing and not for purposes of putting words

into the mouth of the witness. Such, however, is

within the discretion of the trial judge.

See Redfearn v. United States, 375 F.2d 767 (5th Cir.

1967). It must be borne in mind that the reliability and

credibility of witnesses is a matter for the trier of fact

— here, the jury. See Thompson v. United States, 342

F.2d 137 (5th Cir.), cert. denied, 381 U.S. 926, 85 S.Ct.

1560, 14 L.Ed.2d 685 (1965). Moreover, where the issue,

as here, is one of present recollection revived, the doc-

trine of contemporaneity has little application. See

Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40

L.Ed. 1118 (1895). We perceive no abuse of discretion in

the district court allowing the Government to refresh

the witnesses’ memories with their prior statements

to IRS agents.

As a final point of error, appellant challenges that

portion of the Plan for Random Selection of Grand and

Petit Jurors for the Eastern District of Louisiana

which excuses operators of “one-man” businesses

from jury duty upon request. We reject appellant's

argument. In the first instance, the exclusion of sole

proprietors is not automatic. On the contrary, it is

necessary for such persons to request that they be ex-

cused from jury duty. This element of choice makes

the present case analogous to that before the Court in

10a

Camp v. United States, 413 F.2d 419 (5th Cir. 1969),

where the use of voter registration lists to compile a

roster of potential jurors was approved. As the Court

stated in Camp, persons choosing not to register to

vote do not constitute a cognizable class capable of

systematic exclusion from juries. 413 F.2d at 421.

Likewise, sole proprietors requesting to be excused

from juries in the Eastern District of Louisiana do not

constitute a cognizable class systematically exclud-

ed from petit juries. See Labat v. Bennet, 365 F.2d 698

(Sth Cir. 1966); cf. Taylor v. Louisiana, 419 U.S. 522, 95

S.Ct. 692, 42 L.Ed.2d 690 (1975); Curry v. Estelle, 524

F.2d 981 (Sth Cir. 1975). The categorical exclusion of

certain occupational groups from jury duty is per-

missible on the “bona fide ground that it [is] for the

good of the community that their regular work should

not be interrupted.” Government of the Canal Zone v.

Scott, 502 F.2d 566, 569 (Sth Cir. 1974), quoting Mr.

Justice Holmes in Rawlins v. Georgia, 201 U.S. 638,

640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906). The exclusion

of sole proprietors upon request meets that standard.

The judgment of conviction in the instant case is in

all respects affirmed.

lia

APPENDIX B

THE UNITED STATES

v.

BERNARD A. HORTON 3 Counts

715 Topaz St.

New Orleans, La. 70124

INDICTMENT: 26 USC 7206(1)

False statement on tax returns

WED. FEB. 12, 1975

2PM

1.

RE-SENTENCING (3 COUNTS)

DEFT PRESENT

COURT AMENDS SENTENCE TO READ AS

FOLLOWS:

AS TO COUNT ONE ONLY:

DEFT IS COMMITTED TO THE CUSTODY OF THE

ATTY GEN FOR A PERIOD OF 2 YEARS, 6b MONTHS

OF WHICH HE IS TO SERVE IN A JAIL TYPE IN-

STITUTION AND THE BALANCE TO BE SUSPEND-

ED AFTER WHICH THE DEFT TO BE PLACED ON

PROBATION FOR A PERIOD OF 2 YEARS.

12a

IT IS FURTHER ORDERED THAT AS A SPECIAL

PROVISION OF PROBATION, THE DEFT PAY THE

FEDERAL INCOME TAX HE OWES DURING THE

PERIOD OF HIS PROBATION.

AS TO COUNTS 2 AND 3 ONLY:

THE SAME SENTENCE IMPOSED ON COUNTS 2

AND 3, TO RUN CONCURRENTLY WITH THE

SENTENCE IMPOSED ON COUNT 1.

DEFT RELEASED ON HIS SAME BOND PENDING

APPEAL.

DATE OF ENTRY FEB 13, 1975

13a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-1530

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERNARD A. HORTON,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Louisiana

ORDER:

IT IS ORDERED that appellant’s motion for leave to

proceed on the original typewritten record and

typewritten brief is granted.

/s/ CHARLES CLARK

UNITED STATES

CIRCUIT JUDGE

14a

APPENDIX D

United States District Court

Eastern District of Louisiana

PLAN FOR RANDOM SELECTION OF GRAND

AND PETIT JURORS PURSUANT TO THE JURY

SELECTION AND SERVICE ACT OF 1968

Filed: Dec. 20, 1972

The plan heretofore adopted by this Court for the

random selection of grand and petit jurors pursuant to

the Jury Selection and Service Act of 1968, Title 28,

United States Code, Sections 1861, et seq., approved by

the Judicial Council of the United States Court of

Appeals for the Fifth Circuit and filed on April 16, 1972

is, subject to the approval of the Reviewing Panel for

the Fifth Circuit, and to such rules and regulations as

may be adopted from time to time by the Judicial Con-

ference of the United States, hereby revoked and

rescinded, and the following plan, which incorporates

the revisions required by Public Law 92-269, April 6,

1972, is hereby adopted.

APPLICABILITY OF PLAN

This plan is applicable to the Eastern District of

Louisiana which comprises thirteen (13) parishes, to

which nine (9) judgeships are authorized and regular-

ly assigned.

15a

POLICY

It is the policy of the United States and of this Court

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 wherein the Court con-

venes. It is further the policy of the United States and

of this Court that all citizens shall have the opportuni-

ty to be considered for service on grand and petit juries

in the District Courts of the United States and shall

have an obligation to serve as jurors when summoned

for that purpose.

DISCRIMINATION PROHIBITED

No citizen shall be excluded from service as a grand

or petit juror in the District Courts of the United States

on account of race, color, religion, sex, national origin,

or economic status.

MANAGEMENT AND SUPERVISION OF

JURY SELECTION PROCESS

A Jury Commission is hereby established for this

District. The Jury Commission shall consist of the

Clerk, or a duly qualified Deputy Clerk designated by

the Clerk, and a Citizen Jury Commissioner to be

designated by the Court. The Citizen Jury Com-

missioner shall not belong to the same political party

as the Clerk, or designated Deputy Clerk, serving with

him. The Citizen Jury Commissioner shall reside, dur-

ing his tenure in office, in the Eastern District of

Louisiana. The Citizen Jury Commissioner shall

16a

receive compensation at the rate of $50 per day for

each day necessarily employed in the performance of

his duties, plus reimbursement, under standards

provided by law, for travel, subsistence, and other

necessary expenses incurred by him in the perfor-

mance of his duties.

The Jury Commission shall act under the supervi-

sion and control of the Chief Judge who is charged

with the overall supervision of this plan, provided

however that the Chief Judge may, from time to time,

by order duly filed in the Clerk’s Office, designate a

specific judge who is assigned to supervise the day to

day operation of this plan. The words “Chief Judge”

wherever used in this plan shall mean the Chief Judge

of this District, or in the event of his absence, disabili-

ty, or inability to act, the active District Judge who is

present in the District and has been in service the

greatest length of time. The word “Court” as used

herein, unless otherwise specifically indicated, shall

mean the Chief Judge of this District or such other Dis-

trict Judge as the Chief Judge has, by order, in accor-

dance with this plan, designated to supervise the

operation of this plan.

RANDOM SELECTION FROM VOTER

REGISTRATION LISTS

Voter registration lists, including any and all

federal registrars lists. represent a fair cross section

of the community in the Eastern District of Louisiana.

This Court is of the opinion that the rights of all

citizens are substantially protected by the use of such

lists as the source of selection of prospective jurors,

therefore no other source is proposed. Accordingly,

17a

the names of ali prospective grand and petit jurors

serving on or after the effective date of this plan shall

be selected at random in accordance with the

procedures hereinafter set forth from such voter

registration lists of all of the parishes within this Dis-

trict. This plan is based on the conclusion and judg-

ment that the policy, purpose and intent of the Jury

Selection and Service Act of 1968 will be fully ac-

complished and implemented by the use of voter

registration lists, as supplemented by the inclusion of

subsequent registrants to the latest practicable date,

as the source of an at random selection of prospective

grand and petit jurors who represent a fair cross sec-

tion of the community. This determination is sup-

ported by all of the information this Court has been

able to obtain after diligent effort on its part and after

full consultation with the Fifth Circuit Jury Working

Committee and the Judicial Council of the Fifth Cir-

cuit.

As required by the Judicial Conference of the United

States, a report will be made to the Administrative Of-

fice of the United States Courts within six months

after each periodic refilling of the master jury wheel,

on forms approved by the Judicial Conference, giving

general data relating to the master jury wheel, the

time and manner of name selection, the source and

number of names placed in the wheel, and related in-

formation, an analysis of the race and sex of prospec-

tive jurors based on returns from 500 juror qualifica-

tion forms drawn at random from the master jury

wheel, and an analysis by race, sex and occupation of

all persons who have actually reported for jury ser-

vice during the period covered by the report.

18a

SELECTION PROCEDURE

A master jury wheel and a qualified jury wheel shall

be maintained for this District. The names of prospec-

tive jurors to be placed in the master jury wheel shall

be randomly selected as hereinafter provided for from

the voter registration lists of all of the parishes in the

District. In selecting names from the voter registra-

tion lists a member of the Jury Commission shall

select by lot a starting number from 1 to 30, and the

number so selected shall designate the name of the

first person selected from the voter registration list.

Thereafter, every hundredth name shall be selected.

This will result in the initial placement in the master

jury wheel of one per cent of the total number of

registered voters in the District. For example, if the

starting number selected is 21, then the 2ist, i2ist,

221st, etc., name shall be selected until the list has been

exhausted. In the future there shall be selected such

other number spread as the Court shall direct in order

to produce a minimum number of names in the master

jury wheel of one-half of one per cent of the total

number of registered voters in the District. If the lists

or rolls are kept by political subdivisions, such as

wards, the same procedure shall be followed as toeach

such subdivision, list or roll.

The names selected from the authorized sources in

the manner set out above shall be typed or imprinted

onto cards or slips. together with the address and an

identifying number, and reference hereinafter to the

placing of names or the drawing of names, etc. shall

refer to the placing of such cards and the drawing of

such cards, etc.

19a

MASTER JURY WHEEL

The Jury Commission shali maintain a master jury

wheel into which the names of those randomly

selected from the voter registration lists shall be plac-

ed. The minimum number of names to be placed in the

master jury wheel shall be not less than one half of one

per cent of the total number of registered voters in the

entire District.

The Chief Judge or the District Judge designated by

the Chief Judge by order duly filed in the Clerk’s Office

to supervise the operation of this plan shall have the

responsibility for ordering the placing from time to

time of additional names in the master jury wheel.

The master jury wheel shall be emptied and refilled

between November 7, 1972 and September 1, 1973, and

thereafter, every four years between November 7 and

September 1.

DRAWING OF NAMES FROM

MASTER JURY WHEEL

Names shall be Jrawn from the master jury wheel

and qualifications forms mailed, processed, etc. as

follows: From time to time as directed by the Chief

Judge or by the Judge designated by order of the Chief

Judge to supervise the operation of this plan, the

Clerk, a Deputy Clerk, or a District Judge, shall pub-

licly draw at random from the master jury wheel the

names of as many persons as may be required for jury

service. The Clerk or Jury Commission shall prepare

an alphabetical list of the names drawn, which list

20a

shall be public unless the Chief Judge or such other

Judge as is designated by order of the Chief Judge to

supervise the operation of this plan shall direct, in any

case where the interests cf justice so require, that the

names be kept confidential. The Clerk or Jury

Commission shall mail to every person whose name is

drawn from the master wheel a juror qualification

form accompanied by instructions to fill out and

return the form, duly signed and sworn, tothe Clerk or

Jury Commission by mail within ten days. If the per-

son is unable to fill out the form, another shall do it for

him, and shall indicate that he has done so and the rea-

son therefor. In any case in which it appears that there

is an omission, ambiguity, or error in the form, the

Clerk or Jury Commission shall return the form with

instructions to the person to make such additions or

corrections as may be necessary and to return the

form to the Clerk or Jury Commission within ten days.

Any person who fails to return a completed juror

qualification form as instructed may be summoned by

the Clerk or Jury Commission forthwith to appear

before the Clerk or Jury Commission to fill out ajuror

qualification form. A person summoned to appear

because of failure to return a juror qualification form

as instructed who personally appears and executes a

juror qualification form before the Clerk or Jury Com-

mission may, at the discretion of the District Court,

except where his prior failure to execute and mail

such form was willful, be entitled to receive for such

appearance the same fees and travel allowances paid

to jurors under Section 1871 of Title 28 U.S. Code. At

the time of his appearance for jury service, any person

may be required to fill out another juror qualification

form in the presence of the Jury Commission or the

Clerk or the Court, at which time, in such cases as it

2la

appears warranted, the person may be questioned, but

only with regard to his responses to questions con-

tained on the form. Any information thus acquired by

the Clerk or Jury Commission may be noted on the

juror qualification form and transmitted to the Chief

Judge or such other District Court Judge as has been

designated by order of the Chief Judge to supervise

this plan.

EXCUSES ON INDIVIDUAL REQUESTS

This Court, by unanimous agreement of all of its

judges, hereby finds that jury service by members of

the following occupational classes or groups of per-

sons would entail undue nardship or extreme in-

convenience to the members thereof, and the excuse of

such members will not be inconsistent with the objects

and purposes of the Act, and shall be granted upon in-

dividual request:

(1) Persons actively engaged in the operation of a

one-man business.

(2) Mothers with children under ten years of age

where there is no one but the mother to take care of the

children.

(3) Attorneys at law, doctors and dentists actively

engaged in the practice of their profession, anc.

ministers of the Gospel actively and regularly en-

gaged in the discharge of their ministerial duties.

22a

EXEMPTIONS FROM JURY SERVICE

This Court, by unanimous agreement of all of its

judges, finds that the exemption of the following

groups or occupational classes is in the public in-

terest and would not be inconsistent with the Act, and

accordingly members of such groups are exempt from

jury service:

(1) Members in active service in the Armed Forces

of the United States.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

OFFICE OF THE CLERK

Benjamin W. Reisch 400 Royal St., Rm. 306

Clerk New Orleans, La. 70130

Dear Prospective Juror:

Your name has been selected at random from the list

of registered voters for prospective jury service in

this Court.

The Jury Selection and Service Act of 1968 requires

that the attached questionnaire be filled out and

returned to the Clerk's office within 10 days. There is

enclosed for your convenience in returning the

questionnaire. a self-addressed envelope which re-

quires no postage. Failure todothis within the 10 days

will make you liable to be summoned to report to this

23a

office to execute said questionnaire, and failure,

without good cause, to respond to such a summons

could result in your being fined up to $100.00 or im-

prisoned up to 3 days in jail, or both. Misrepresenta-

tion in the questionnaire of any material fact request-

ed, if made to secure or avoid jury service, may subject

you to criminal penalties.

THIS IS NOT A SUMMONS for jury service. If you

are later chosen for such service you will be notified to

report at a stated time and place. Jurors will receive

mileage and, unless they are Government employees,

$20.00 per day for each day of service.

EXEMPTIONS — The following persons are exempt

from jury service:

Active members of the Armed Services

Policemen and firemen.

Public officers, Federal, State, Parish or City.

Federal law enforcement officers.

EXCUSES — The following persons will be excused

by the Court upon individual request:

Persons actively engaged in operating a one-man

business.

Mothers with children under 10 years of age where

there is no one else but the mother to care for

them.

Lawyers, doctors, dentists and ministers of the

Gospel when actively and regularly engaged in

the practice of their profession.

Persons over 70 years of age.

— The following persons may be excused by

the Court upon request and a proper explanation

and/or doctor’s certificate:

Persons suffering from a disabling physical dis-

ability.

24a

Persons suffering from a disabling mental dis-

ability.

Persons who would suffer an extreme hardship if

required to serve.

Before anyone may be exempted or excused,

however, the questionnaire must be answered in full

and returned to this office.

If you are unable to fill out this form yourself you

should have someone else fill it out for you, setting out

the reason for such action.

Yours very truly.

BENJAMIN W. REISCH

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

REVIEWING PANEL, JURY PLAN

The foregoing and attached Amendment to the Plan

of the United States District Court for the Eastern Dis-

trict of Louisiana for the Random Selection of Grand

and Petit Jurors having been reviewed by the Review-

ing Panel of this Circuit is hereby certified as AP-

PROVED.

Entered for the Reviewing Panel at New Orleans,

Louisiana, this 17th day of August. 1973.

25a

/s/ THOMAS H. REESE

Thomas H. Reese,

Circuit Executive for

The Judicial Council,

Fifth Circuit

The following Judges comprised and acted as the

Reviewing Panel:

(a) Fifth Circuit Judicial Council

John R. Browr

John Minor Wisdom

Walter P. Gewin

Griffin B. Bell

Homer Thornberry

James P. Coleman

Irving L. Goldberg

Robert A. Ainsworth, Jr.

John C. Godbold

David W. Dyer

Bryan Simpson

Lewis R. Morgan

Charles Clark

Paul H. Roney

Thomas G. Gee

(b) United States District Judge

/s/ FREDERICK J. R. HEEBE

Frederick J. R. Heebe

Chief Jvige

Eastern District of

Louisiana

26a

APPENDIX E

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

March 8, 1976

TO ALL COUNSEL OF RECORD

No. 75-1530 — USA v. Bernard A. Horton

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition ( ) for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

petition ( ) for rehearing en banc has also been

denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH

Clerk

/s/ SUSAN M. GRAVOIS

Deputy Clerk

/smg

cc: Mr. George W. Reese

Ms. Mary W. Cazalas