Opposition — Lopez v. United States

UE

JUN F 1979

TERK JR., CLERK

In the Supreme Court of the Hnited States

‘OCTOBER TERM, 1978

No. 78-1470

MARY FRANCIS LOPEZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WapE H. McCree, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

Opinion below

Jurisdiction

Question presented

Statement

INDEX

CITATIONS

Cases:

Alexander v. Louisiana, 405 U.S. 625 ....

Castaneda v. Partida, 430 U.S. 482 .......

Duren v. Missouri, No. 77-6067 (Jan.

Bh EEE | eeietierenntsdileintehsaeccseivincesesccsesses

Simmons v. United States, 406 F. 2d

456, cert. denied, 395 U.S. 982. ...........

Taylor v. Louisiana, 419 U.S. 522. .........

Turner v. Fouche, 396 U.S. 346.000.0000...

United States v. Arlt, 567 F. 2d 1295,

cert. denied, 436 U.S. 911 wu...

United States v. De ALBA-CONRADO,

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United States v. Freeman, 514 F. 2d

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SOPHO E EEE EEE EE EEE HEE SESE EEEEEE HEHEHE HEHEHE EEEE

SOE EEE EEE EEE EEE EEE EEE EEEEE EEE HEHEHE EEE HEHEHE EE EEEE

ii

Page

Cases (Continued):

United States v. Goff, 509 F. 2d 825, .

cert. denied, 423 U.S. 857 .in.c......cccccccscceece 8

United States v. Grismore, 546 F. 2d

ESSA TESS Et roig sg: FATS? OPC BSD ce RE 8

United States v. Guzman, 468 F. 2d

SMES BIT lice a OR 8

Constitution and statutes:

United States Constitution,

SSUMUME FATROTIGIIOEE “cnnccccicccccnccccccceccccccccescscccocecs 5

Jury Selection and Service Act of 1968,

BO Pe I II, | caibssscavnsesssosccnscscsceses 4

es ie &

BO Wc, BE vcknicnccnacsescisccesccccecconcs &

I, Rie III | Lcinsitascscckceandesuieescuckdcckoons 5

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-1470

MARY FRANCIS LOPEZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 3a-6a) is

reported at 588 F. 2d 450.

JURISDICTION

The judgment of the court of appeals was entered on

January 24, 1979. A petition for rehearing was denied on

February 21, 1979. The petition for a writ of certiorari

was filed on March 23, 1979. The jurisdiction of this

Court is invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the jury selection plan for the Northern

District of Texas is unconstitutional because it results in

jury service by fewer Mexican-American citizens than

might be expected on the basis of population.

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Texas, petitioner was

convicted of the intentional obstruction of cor-

respondence, in violation of 18 U.S.C. 1702.' She was

sentenced to a suspended term of two years’ imprisonment

and was placed on probation for that period. She was also

fined $1,000. The court of appeals affirmed (Pet. App. 3a-

6a).

Before trial, petitioner moved to quash the impaneled

petit jury on the ground that it was unconstitutionally

selected and failed to represent a cross-section of the

population in the Lubbock Division of the Northern

District of Texas. During the hearing on this motion,

petitioner introduced census evidence showing that in -

1970 persons with Spanish surnames accounted for

approximately 20% of the population in the Lubbock

Division of the Northern District of Texas (Tr. 35; Def.

Exh. 8).2 In contrast, petitioner asserted, the Mar-

shal’s lists of persons summoned for jury duty during

the years 1971 to 1978 revealed that a much smaller

percentage of the persons summoned had Spanish

surnames.? Several witnesses familiar with the area

'The evidence at trial, which petitioner does not contest, showed

that she endorsed and deposited into her husband’s business account

a United States Treasury check that had been mailed to a third party.

“Tr.” refers to the transcript of the hearing on petitioner's motion

to quash. The hearing occurred on June 13, 1978. The jury was

chosen the previous day, and petitioner was tried on June 16, 1978.

‘In her petition (Pet. 4, 6; Pet. App. 12a), petitioner states that,

from August 1971 through June 1978, approximately 4.3% of the

persons summoned for jury duty in the Lubbock Division of the

testified that the Mexican-American population was an

identifiable group, increasing in number and including

many members qualified to serve as federal jurors (Tr. 33-

34, 36, 43-44, 50, 52-53, 56-59). The witnesses also stated

that there was some prejudice and discrimination against

Mexican-Americans in the area, but that the problem was

not as serious as it had been and that the situation was

improving (Tr. 37, 44-47, 51). They further testified (Tr.

39, 45, 51-53, 53-55, 60, 61-62) that in recent years they

had not witnessed resistance or impediments to minority

group members seeking to register to vote; in fact, they

said, voter registration drives directed at the Mexican-

American population had _ been relatively successful,

although a substantial number of eligible Mexican-

Americans remained unregistered.

Petitioner’s attorney disavowed any contention that the

Clerk of the district court was administering the District's

jury selection plan in a discriminatory fashion and

admitted that the evidence showed there was no

rn District of Texas had Spanish surnames. At the hearing in

aoe court, petitioner's counsel stated (Tr. 69) that the correct

figures were approximately 2.0% in 1974, 2.5% in 1975, 2.3% in 1976,

4.5% in 1977, and 5.2% in the first half of 1978. The tables reprinted

in Appendix D to the petition (Pet. App. 8a-12a) appear to contain

some significant computational errors. For example, the total for the

Marshal’s Summons Lists in 1974 seemingly should read “6/205 =

2.9%" rather than “2/205 = .09%” (see Pet. App. 10a). If these

apparent errors were corrected throughout the Marshal's Summons

List tables, the total figures for 1971 through 1978 would become

“98/1588 = 6.2%” rather than “69/1608 = 4.3%” (see Pet. App. 12a).

Assuming the accuracy of petitioner's raw data, her statistics would

still demonstrate that persons with Spanish surnames are not as well

represented among persons summoned to serve on juries as they are

in the general population.

interference with the voting rights of persons with

Spanish surnames (Tr. 71-73).

The district court agreed (Tr. 71) with petitioner that

the percentage of persons with Spanish surnames was

greater in the general population than among those

summoned for jury duty. Nevertheless, relying on the

testimony of the witnesses and on the Clerk’s Certificate

of Compliance with the Jury Selection Plan,‘ the court

found (Tr. 72, 112) that the plan had been followed and

that jury panels had been selected on an objective, non-

discriminatory basis. The court therefore concluded that

the statistical disparity stressed by petitioner

demonstrated only that the percentage of voter registrants

within the Mexican-American population was lower than

the corresponding percentage in the population as a

whole. Because the evidence showed that the disparity was

not the product of discrimination in the jury selection

process, the court denied petitioner’s motion to quash (Tr.

111-113).5

‘The Clerk's Certificate and its formal acceptance by the district

court are reprinted in the Appendix, infra.

‘The court also stated (Tr. 113) that the motion could and

should be denied because petitioner failed to follow the procedures

established for challenging jury selection methods under the Jury

Selection and Service Act of 1968, 28 U.S.C. 1867. But petitioner's

claim is constitutional; she does not challenge the district court's plan

for non-compliance with the 1968 statute, and, accordingly, she is not

obliged to observe the procedural requisites of that Act. See, e.2.,

United States v. De ALBA-CONRADO, 481 F. 2d 1266, 1270 n.5

(Sth Cir. 1973).

The court of appeals affirmed, holding that petitioner

failed to meet her burden of showing that “the exclusion

of a particular minority group from jury service is due to

some form of intentional discrimination” (Pet. App. 5a).

Citing Castaneda v. Partida, 430 U.S. 482, 494 (1977), the

court stated that “[iJn order to establish a prima facie

case of discrimination in the selection of jurors, a defend-

ant must show * * * that the selection procedure is not

racially neutral or is susceptible to being used as a tool of

discrimination” (Pet. App. 4a). The court concluded that

petitioner did not make such a showing in connection

with the practice of selecting jurors at random from voter

registration lists in the Northern District of Texas.

ARGUMENT

Petitioner contends (Pet. 5-11) that the jury selection

plan in effect in the Northern District of Texas

systematically excludes Mexican-Americans and that she

therefore was denied her Sixth Amendment right to a jury

drawn from a fair cross-section of the community. She

argues that the statistics she introduced showed an

underrepresentation of persons with Spanish surnames on

the jury service lists for the years 1971 through 1978.° This

Petitioner states (Pet. 4) that persons with Spanish surnames

account for more than 20% of the total population in the Lubbock

Division of the Northern District of Texas. Because the Northern

District's jury selection plan relies on voter registration lists, however,

the voting age population provides a more accurate point of

comparison. As the computations in the government's brief in the

court of appeals show (Br. 9 n.6 and Addendum), persons with

Spanish surnames constitute slightly less than 15% of the Lubbock

Division's voting age population. Even this figure may overstate the

percentage of Spanish surnamed persons eligible to serve on juries in

the district, since it may include a number of persons who are not

citizens or who do not speak English (see 28 U.S.C. 1865(b)).

showing of underrepresentation, petitioner asserts, was

sufficient to establish a prima facie case of discrimination,

a case that the government's evidence failed to rebut.

Petitioner is incorrect.

Earlier this Term, in Duren v, Missouri, No. 77-6067

(Jan. 9, 1979), this Court summarized the requirements

for a prima facie showing of discrimination in the jury

selection process. The Court stated (slip. op. 6):

In order to establish a prima facie violation of the

‘fair-cross-section requirement, the defendant must

Show (1) that the group alleged to be excluded is a

“distinctive” group in the community; (2) that the

representation of this group in venires from which

juries are selected is not fair and reasonable in

relation to the number of such persons in the

community; and (3) that this underrepresentation is

due to systematic exclusion of the group in the jury-

selection process.

'

Petitioner's evidence failed to satisfy the third part of

this test. The statistics derived from the Marshal's jury

service lists do not show that the underrepresentation of

Mexican-Americans is due to “systematic exclusion” of

the group in the jury selection process. Indeed, the jury

selection plan in effect in the Northern District of Texas

does not systematically exclude any ethnic group. Jury

service lists are drawn at random from lists of registered

voters in each county comprised within the Northern

District. Petitioner does not contend that the random

selection process excludes registered Mexican-American

voters; nor does she argue that Mexican-Americans are

prevented or discouraged from registering to vote in the

District. The statistical disparity between the percentage

of persons with Spanish surnames in the voting age

population and the percentage of persons with Spanish

surnames on the Marshal's jury lists is not by itself

sufficient to show “systematic exclusion” within the

meaning of Duren. If it were, the third requirement for a

prima facie case enumerated in Duren would be

superfluous. Any showing of underrepresentation con-

tinuing over a period of time would be sufficient to

establish “systematic exclusion.”

In several cases, this Court has invalidated jury

selection systems that resulted in the exclusion or

underrepresentation of an identifiable group and thereby

deprived defendants of their right to a jury drawn from a

fair-cross-section of the community. See, e.g., Castaneda

v. Partida, 430 U.S. 482 (1976); Taylor v. Louisiana, 419

U.S. 522 (1975); Alexander v. Louisiana, 405 U.S. 625

(1972); Turner v. Fouche, 396 U.S. 346 (1970). In each of

these cases, however, the jury selection plan involved

some subjective device by which members of the

identifiable group could choose to exclude themselves or

could be deliberately excluded by those charged with the

responsibility for jury selection. Castaneda, for exam-

ple, involved the Texas “key man” system under

which county grand jurors were selected, largely on a

subjective basis, by appointed jury commissioners. If the —

commissioners had been so disposed, they could easily

have arranged for an identifiable ethnic or racial group to

be underrepresented on the grand jury lists. Taylor

involved the Louisiana “opt-in” requirement for women

who wished to serve on petit juries. The state law

provided that a woman would not be selected for jury

service unless she had previously filed with the court clerk

a “declaration of her desire to be subject to such service.”

Not surprisingly, this additional statutory hurdle,

applicable only to women, resulted in the underrepresen-

tation of women on Louisiana juries. Here, by contrast,

the objective, random nature of the jury selection method

employed in the Northern District of Texas does not

permit the systematic exclusion of any group represented

on the registered voter lists.

In enacting the Jury Selection and Service Act of 1968,

28 U.S.C. 1861 et seqg., Congress approved the use of

voter registration lists as the principal source of names of

prospective jurors.’ Federal courts that have consid-

ered the matter have sustained the use of such lists as

the basis for compiling lists of prospective jurors, even

when defendants have objected that this method of jury

selection results in the underrepresentation of identifiable

groups whose members are underrepresented among

registered voters. See, e.g., United States v. Arlt, 567 F.

2d 1295, 1297 (Sth Cir.), cert. denied, 436 U.S. 911 (1978);

United States v. Grismore, 546 F. 2d 844, 848 (10th Cir.

1976); United States v. Freeman, 514 F. 2d 171 (8th Cir.

1975); United States v. Guzman, 468 F. 2d 1245 (2d Cir.

1972), cert. denied, 410 U.S. 937 (1973). See also United

States v. Goff, 509 F. 2d 825 (Sth Cir.), cert. denied, 423

U.S. 857 (1975); Simmons v. United States, 406 F. 2d 456,

’Congress also provided that the jury selection plan for each federal

district “shall prescribe some other source or sources of names in

addition to voter lists where necessary to foster the policy and protect

the rights secured by” the statutory provisions prohibiting exclusion

from jury service on the basis of “race, color, religion, se, national

origin, or economic status.” See 28 U.S.C. 1862, 1863(b)(2).

Petitioner does not argue that the failure of the Northern District's

plan to prescribe sources of names in addition to the voter lists

violates the requirements of Section 1863(b\2). See note 5, supra.

462-463 (Sth Cir.), cert. denied, 395 U.S. 982 (1969) (“[nJo

significant improvement in our nation’s federal judicial

machinery has ever met such unanimity of opinion as to

its importance and propriety as has adoption by the

Congress of the system of jury selection at random trom

voter registration lists.”)

Petitioner does not allege that the jury selection plan

for the Northern District of Texas was adopted with an

intent to discriminate against Mexican-Americans, nor

does she suggest that state or county election officials in

the District have placed special obstacles in the path of

Mexican-Americans who wish to register to vote. It is

true, of course, that any Mexican-American in the

District who wishes to avoid federal jury service can do so

by refusing to register to vote. But this voluntary method

of self-exclusion is an option available to every person of

voting age in the District, not just to Mexican-Americans

or persons with Spanish surnames. The jury — selection

plan thus does not entail any special dispensation for an

identifiable group that results in the underrepresentation

of that group on jury lists. The Court in Duren found the

Missouri selection system objectionable because it

permitted women, and only women, to obtain an

exemption from jury service upon request. No such

systematic method of reducing the representation of

Mexican-Americans is inherent in the Northern District's

jury selection plan.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapE H. McCree, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

DEBORAH WATSON

Attorney

JUNE 1979

DOJ-1979-06

la

APPENDIX

IN THE UNITED STATES DISTRICT «COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION |

MISCELLANEOUS NO. 16

FINDINGS OF THE COURT AND ORDER TO

FILL THE QUALIFIED JURY WHEEL IN THE

LUBBOCK DIVISION

U.S. District Court

NORTHERN DISTRICT OF TEXAS

FILED

SEP. 2/7, 1977

JOSEPH McELROY, JR., CLERK

BY /s/ Peggy Thillet

Deputy

Based on the report and recommendations of the Clerk

made on the 27th day of September, 1977, and based on

_ the information contained in the returned juror qualifica-

tion questionnaires mentioned therein;

THE COURT FINDS that five hundred forty (540)

persons identified in the report are disqualified and/or

exempt or excused for the reasons set out in the Plan for

Selection of Jurors in the Northern District of Texas, to

which reference is made on the back of the questionnaires.

THE COURT FURTHER FINDS that the remaining

eight hundred eighty (880) persons identified in the report

are qualified for jury sevice.

IT IS, THEREFORE, ORDERED that the previously

existing jury wheels in the Lubbock Division be purged

and after all persons selected to serve as jurors before the

Master Wheel was emptied, have completed such service,

that all records and papers complied and maintained by

the Jury Commission or Clerk before the Master Wheel

was emptied, shall be preserved in the custody of the

Clerk for four (4) years and shall be available for public

inspection for the purpose of determining the validity of

the selection of any jury as provided in section 1868, Title

28, United States Code.

IT IS FURTHER ORDERED that the names of eight

hundred eighty (880) persons found to be qualified be

placed in the Qualified Jury Wheel in the Lubbock

Division and that all jurors summoned to appear on or

after October 1, 1977, be drawn therefrom.

ENTERED this 27th day of September, 1977.

/s/ W.M. Taylor

JUDGE, UNITED STATES DISTRICT COURT

2a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

MISCELLANEOUS NO. 16

CERTIFICATE OF COMPLIANCE WITH THE

ORDER OF THE COURT HERETOFORE ENTERED

ON MARCH 14, 1977, RELATING TO SELECTION

OF JURORS, TOGETHER WITH THE REPORT

AND RECOMMENDATION OF THE CLERK

PERTAINING TO THE LUBBOCK DIVISION

U.S. District Court

NORTHERN DISTRICT OF TEXAS

FILED

SEP. 27, 1977

JOSEPH McELROY, JR., CLERK

BY /s/ Peggy Thillet

Deputy

Pursuant to the Order of the Court heretofore entered

on the 14th day of March, 1977, and in accordance with

the procedure outlined in paragraph 5 of the Plan for

Selection of Jurors in the Northern District of Texas, the

names of four percent (4%) of the registered voters in each

county in the Lubbock Division were selected for filling of

the Master Jury Wheel. Twenty-five (25) numbers were

placed in a container and number ten (10) was selected at

random therefrom. Beginning with the tenth (10th) name

on each county list, every twenty-fifth (25th) name was

taken. A total of seven thousand five hundred thirty-seven

3a

(7,537) names was obtained, reflecting a total voter

population of one hundred eighty-eight thousand five

hundred eighty-seven (188,587) in the Lubbock Division.

The breakdown by county is as follows:

Total Voters Total Voter

County Selected (4%) Population

Bailey 131 3,275

Borden 20 509

Cochran 99 2,484

Crosby 170 4,259

Dawson 251 6,284

Dickens 83 2,084

Floyd 322 8,059

Gaines 207 5,184

Garza 100 2,509

Hale 623 15,584

Hockley 392 9,809

Kent 35 884

Lamb 358 8,959

Lubbock 3,735 93,384

Lynn 162 4,059

Motley 52 1,309

Scurry 315 7,884

Terry . 324 8,109

Yoakum 158 3,959

7,537 188,587

An alphabetical list of the names so selected was prepared

and the names placed in the Master Jury Wheel.

4a

Thereafter, one thousand eight hundred eighty-five

(1,885) names were selected from the Master Jury Wheel,

as provided in paragraph 6(1) of the Plan, and a

questionnaire, including appropriate instructions, direc-

ting the completion and return of the questionnaire within

ten (10) days, was mailed to each person whose name was

so selected. As alphabetical list of the names so drawn

was prepared.

Of the one thousand eight hundred eighty-five (1, 885)

questionnaires mailed, one thousand four hundred twenty

(1,420) have now been returned as directed. The Clerk

and his deputy clerks have reviewed the answers on the

one thousand four hundred twenty (1,420) questionnaires

returned and have noted on the back thereof in an

appropriate block, based on the information provided by

him, whether he is qualified, exempt or entitled to be

excused on request. It appears from the information

returned on the one thousand four hundred twenty (1,420)

questionnaires, for the reasons specified in the ap-

propriate blocks thereof, eight hundred eighty (880)

persons may be deemed qualified, one hundred ninety-

four (194) persons may be deemed not qualified, twenty

(20) persons may be deemed exempt, three hundred

twenty-six (326) persons may be deemed entitled to be

excused on request and two hundred sixty-one (261)

returned undelivered.

RECOMMENDATIONS:

Based solely on the information provided in the return

questionnaires, | recommend that we be authorized to

purge the existing Jury Wheels. | further recommend that

those eight hundred eighty (880) persons whose returned

questionnaires reflect no basis for disqualification,

Sa

exemption or excuse be found to be qualified and that

such finding be reflected by a check mark placed on the

juror qualification form and by a check mark placed on

the list of names drawn from the Master Jury Wheel to

whom questionnaires were mailed.

Based solely on the information provided in the

returned questionnaires, | recommend that those one

hundred ninety-four (194) persons whose questionnaires

reflect information providing a basis for disqualification

for the reasons noted on such questionnaires; those

twenty (20) persons whose questionnaires reflect informa-

tion providing a basis for exemption for the reasons noted

on the questionnaires; and those three hundred twenty-six

(326) persons whose questionnaires reflect information

providing a basis for being excused on request for the

reasons noted on such questionnaires be found to be not

qualified and/or exempt or excused for the reasons

reflected on the back of the questionnaires, and that such

finding be reflected on the questionaire and the list of

names drawn from the Master Jury Wheel.

1 further recommend that the existing Qualified Jury

Wheel be purged and that the names of eight hundred

eighty (880) persons found to be qualified and not exempt

or excused be placed in the Qualified Jury Wheel in this

Division.

Dated this 27th day of September, 1977.

/s/ Joseph McElory, Jr. Clerk

JosEPH McELrRoy, JR. CLERK

UNITED STATES DISTRICT COURT

6a