Petition — Zicarelli v. Dietz
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Supreme Cour, *!. 9.
80-79 ¢ ) ETE D
In The No 8 1960
° | RODAK, JR., CLERK
Supreme Court of the Hurited Sees
—o
October Teim, 1980.
JOSEPH ZICARELLI,
Petitioner,
vs.
CHRISTOPHER DIETZ, Chairman, New Jersey Parole Board,
and SALLY G. CARROLL, Associate Member, New Jersey
Parole Board,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
HARVEY WEISSBARD
ISLES, NEWMAN & WEISSBARD
Attorneys for Petitioner
20 Northfield Avenue
West Orange, New Jersey 07052
(201) 731-9770
LUTZ APPELLATE PRINTERS, INC.
law and Financial Printing
South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.
(201) 257-6850 (212) 840-9494 (215) 563-5587 (202; 783-7288
2385
QUESTIONS PRESENTED
1. Whether the Sixth Amendment’s guarantee of trial in a
“district previously ascertained by law” embodies a concept
against manipulation of venue by the State in criminal trials so
fundamental as to render that provision applicable to the states
through the due process clause of the Fourteenth Amendment,
and whether that right was violated in this case by the
assignment of petitioner’s case for trial in a county remote from
the scene of his alleged crime, at the state’s ex parte request and
in the exercise of the unbridled discretion of a state judge?
2. Whether petitioner was denied his Sixth Amendment
right to trial by a jury drawn from a representative cross-section
of the community by his state court trial in a county remote
from the scene of his alleged crime, with jurors drawn solely
from that foreign county, where the two counties exhibit
significant demographic differences along racial, ethnic,
economic and educational lines?
Be al
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il
TABLE OF CONTENTS
Page
Questions Presented ......... SER eee ore e ee ee Te i
ss sivebeagouews soos ii
ME WE MPMONOED. nec ccc ccccenareccscccccnscccecccecs ill
Opinions Below ..... OG ee 2
Jurisdiction... se eee ence eee eee e ee ee ee eeneeeeeeeneees 2
Constitutional and Statutory Provisions Involved ......... 2
Statement of the Case ......cccccsccccvccccscsccccscces 3
A. The Initial State Court Proceedings ............. 3
B. The Initial Third Circuit Decisions ............. 6
(fT) The Panel Opinion ......cccccvccccccsscece 6
(2) The En Banc Decision .. a es lls ein iw ali ia 8
C. The Second Round of State Court Proceedings .. 10
D. The Second Round of Federal Court Proceedings. 13
Reasons for Granting the Writ Te es wa cu AS
I. The majority below has failed to correctly interpret
the “previously ascertained by law” clause of the
Sixth Amendment and to apply it to the facts of this
CR ewhe cee bbS edd USS ed idenee sea Caeeeere 15
iii
Contents
Page
II. Petitioner was denied a trial by a jury constituting a
representative cross-section of the community by .
virtue of his trial in a county with significamt
demographic differences from the county where his
alleged crime was committed. ...... ey tre eee 18
CN ss ssc aden dan bene pas DES VAD ria aweweees 21
TABLE OF CITATIONS
Cases Cited:
Alvarado v. State, 486 P. 2d 981 (Alas. 1971) ............. 19
Ballard v. United States, 329 U.S. 187 (1946) ..........065- 19
Duncan v. Louisiana, 391 U.S. 145 (1968) .........eeeees 16
Foster v. Sparks, 506 F. 2d 805 (Sth Cir. 1975) ...0eceeleee 19
Johnson v. United States, 323 U.S. 273 (1944) ........... 17, 18
Lewis v. United States, 279 U.S. 63 (1929) ........eeeeees 15, 16
Palko v. Connecticut, 302 U.S. 319 (1937) ......cceeeeeees 16
People v. Jones, 108 Cal. Rptr. 345, 510 P. 2d 705 (Sup. Ct.
IOTSD: dncnt¥s aka tk keene s vied cashes areas 19
People v. McDowell, 27 Cal. App. 3rd 864, 104 Cal. Rptr.
Eee Be ME ccs er eee re sy eer ra vey 19
Picata v. Copier, 404 U.8. ZI GFT) as Saecven se ¥iaeese- 8
iv
Contents
Page
Peters v. Kiff, 407 U.S. 493 (1972) ......ceeeeeeeeees 18, 19, 20
Smith v. Texas, 311 U.S. 128 (1940) .... cece cece eee enes 19
State v. Louf, 126 N.J. Super. 321, 314 A. 2d 376 (App. Div.
2) BES ee en Eee, ieee eee eT ee ee ee 6
State v. Zicarelli, 63 N.J. 252 (1971) ....cccecccccccececes 6
State v. Zicarelli, 122 N.J. Super. 225, 300 A. 2d 154 (App.
CG, FOIE ka a ciete ene ceseneseasqu er vegnecesaveses 6, 17
State v. Zicarelli, 154 N.J. Super. 347, 381 A. 2d 398 (App.
Div. 1977), certif. denied, 75 N.J.601, 384 A. 2d 831 (1978) .
Pie ee SO nia Mahe VERAD ERR EEN EWEN Rens Oh Aee DUKA? 12, 13
Taylor v. Louisiana, 419 U.S. 522 (1975) ....eeeeeeeeeeeee 19
Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ..... ioe ae
United States v. Butera, 420 F. 2d 564 (Ist Cir. 1970) ...... 19
United States v. Rivera, 388 F. 2d 545 (2d Cir. 1968), cert.
denied, 392 U.S. 937 (1968) ....ccccccccccscvcveccers 17
Williams v. Florida, 399 U.S. 78 (1970) «1... eee eeeeeees 17, 18
Zicarelli v. Gray, 543 F. 2d 466 (3rd Cir. 1976) ............
PNP OES TONE CTE TT Te 8, 9, 10, 13, 16, 17, 18, 20
Zicarelli v. New Jersey State Commission of Investigation,
GE AIS. Oe TIT ED ac 6 ine sc VE Roce er one sbeuesesedpe 5
y
Contents
Page
Zicarelli v. State of New Jersey, 414 U.S. 875 (1973) ....... 6
Statutes Cited:
RE Ai EE. 50.9 0s Si nee base cS Caceebnctececenenees 8
Be Ri EEE, cc SdeScev cence cecdeedemrennecieneeen 2
PE FRG a haba chitin dacies dosccagastanenes 16
Perk. eT een GE GER, asc cinccnecccescnccneesstncees 3
United States Constitution Cited:
Sixth Amendment ............ i, 2, 6, 7, 8, 12, 14, 15, 16, 18, 19
FORTORIRID FAMOMOMIERE | ook oc ccc vc vcceescccccscesenes i, 14, 15
Rules Cited:
New Jersey Court Rules:
CE (A Waelagdey éende's Gude g bes ckaueeeee baeenGen 6
Gb iets ca abecke ed ce knee kemeeneeee ee een 10
Other Authority Cited:
1970, Census of Population, Characteristics of the Popula-
_ tion, Vol. 1 pt. 32 (U.S. Dept. of Commerce) ........ 10, 11
vi
Contents
Page
APPENDIX
Appendix A— Opinion of the United States Court of Ap-
peals ...ccccccccccccccccsccccscccvecs alk te shy ohie es la
peals ...ccccccccccccccccccsssvccccccccceeceseseess 37a
Appendix C —-Order of the United States Court of Appeals
Denying Petition For Rehearing ..........-+eeeeeeees 39a
*
No.
| Supreme Court of the Huited States
o—
October Term, 1980
JOSEPH ZICARELLI,
Petitioner,
vs.
CHRISTOPHER DIETZ, CHAIRMAN, NEW JERSEY
PAROLE BOARD, AND SALLY G. CARROLL,
ASSOCIATE MEMBER, NEW JERSEY PAROLE BOARD,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
Petitioner Joseph Zicarelli respectfully prays that a writ of
certiorari issue to review the judgment of the United States
Court of Appeals for the Third Circuit affirming the judgment
of the United States District Court for the District of New
| Jersey dismissing the petition for a writ of habeas corpus filed by
petitioner.
2
OPINIONS BELOW
Both the majority and dissenting opinions of the Court of
Appeals, which are not yet reported, appear in the Appendix
hereto (1A-36A).!
JURISDICTION
The date of judgment of the Court of Appeals was
September 9, 1980 which was also the date of entry (37A). A
timely petition for rehearing was denied on September 29, 1980
(39A). This Court’s jurisdiction is invoked under Title 28, United
States Code, Section 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED |
United States Constitution, Amendment VI:
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein
the crime shall have been committed, which
district shall have been previously ascertained by
law, and to be informed of the nature and cause
of the accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his
defense.”
1. “A” references are to the appendix to this petition. “a” references are to
petitioner’s appendix filed with the Superior Court of New Jersey, Appellate
Division, and made a part of the record in the federal habeas corpus
proceedings below.
3
STATEMENT OF THE CASE
A. The Initial State Court Proceedings
Petitioner’s first trial was on a fourteen count indictment
(SGJ 2-70-8H) returned by a Statewide Grand Jury? in which he
was named in seven counts. The first count charged Zicarelli and
six Others with conspiring to run an illegal lottery and
bookmaking operation and to pay bribes to a public official in
order to protect that gambling enterprise. The conspiracy was
alleged to have taken place in West New York and Hoboken,
both of which are in Hudson County, New Jersey (37a-39a). Six
other counts charged petitioner with aiding and abetting the
bribery of the named public official on various dates, within
Hudson County (40a-54a).
Petitioner’s second trial was on similar charges (SGJ 2-70-
8E) consisting of a conspiracy to bribe a public official in order
to protect the same gambling operation and two substantive
counts of bribery. Again, all of the offenses were alleged to have
taken place in Hudson County (28a-36a).
In order to properly understand the factual background of
the venue allocation out of which the issues in this case arise, it
is necessary to briefly outline five other State Grand Jury
indictments returned against petitioner. They are as follows:
(1) SGJ 2-69-2: charging Zicarelli and others with
conspiracy to kidnap and kill a named individual, in Hudson
County (la-2a).
(2) SGJ 2-70-8A: charging Zicarelli and others with one
count of conspiracy to obstruct justice and to bribe public
2. State Grand Juries areacreature of statute, N.J.S.A. 2A:73A-l ef seq.
4
officials and one count of corrupting public officials. The
conspiracy was alleged to: have taken place in Bergen County,
Hudson County and Burlington County. The other count was
alleged to have taken place in Hudson County only (3a-10a).
(3) SGJ 2-70-8B: charging Zicarelli and another with
conspiracy to obstruct justice, in HudsotrCounty and Mercer
County (1 la-13a).
(4) SGJ 2-70-8C: charging Zicarelli and others with two
counts of bribing a public official, in Hudson County (14a-18a).
(5) SGJ 2-70-8D: charging Zicarelli and others with one
count of conspiracy to corrupt a public official and three
substantive counts of bribing a public official. “ese offenses
were all alleged to have taken place in Hudson County (19a-
27a).
With respect to indictment SGJ 2-69-2, venue was initially
allocated to Hudson County by an order of November 13, 1969.
Subsequently, and without any notice to the petitioner or his
attorneys, the State petitioned the same court which had entered
the initial order to change the venue to Mercer County (55a-
57a). The main reason given in the petition was that additional
indictments had been returned involving petitioner and those
cases had been allocated to Mercer County. The petition also
stated that a witness for the State in all of the cases was in
protective custody and was required to be kept only in an area
where the State could provide adequate security arrangemenis.
The petition stated that such arrangements had been made in the
Mercer County area. On June 23, 1970, without notice to the
petitioner or to counsel and without a hearing, the court vacated
its earlier order of November 13, 1969 and designated Mercer
County as the county of venue for trial of Indictment SGJ 2-69-
2 (58a).
5
With respect to five of the six indictments falling under SGJ
2-70-8A, et seq., venue was apparently fixed initially in Mercer
County. Thereafter, and again without notice to any of the
defendants or counsel, the State petitioned the same court to
reallocate all of these cases, including SGJ 2-69-2, to Burlington
County (50a-61a). The thrust of this petition was that Zicarelli, a
common defendant in all cases, was presently in custody in
Burlington County (he was actually in custody in Mercer
County)? and that security requirements for the key witness
could be met in that county. That petition was presented on
October 9, 1970, and, on that same date, the court, again
without notice or hearing, ordered the venue changed to
Burlington County (62a-63a). The last indictment, SGJ 2-70-8H,
was returned after the other cases had been sent to Burlington
County and its venue was placed there in the first instance (64a).
Petitioner moved to have the venue changed or redesignated
to Hudson County. After argument, the trial court delivered an
oral opinion denying the motion (65a-67a). Leave to appeal was
sought from, and denied by, the Superior Court, Appellate
Division. Further appeal, by way of certification, was then
sought from the New Jersey Supreme Court, which ordered a
reargument before Assignment Judge Kingfield, who had
initially assigned the cases to Burlington County. After hearing
further argument, Judge Kingfield delivered an oral opinion
denying the application (68a-69a).
Petitioner was then successively tried and convicted in
Burlington County on Indictments SGJ 2-70-8H and 2-70-8E
with jurors drawn exclusively from Burlington County. On April
23, 1971, he was sentenced to a term of 12-15 years on the first
conviction and on March 17, 1972 to a concurrent term of 4-5
years on the second conviction. He has since been paroled.
3. Petitioner was then in custody pursuant to the contempt proceedings
reviewed by this Court in Zicarelli v. New Jersey State Commission of
Investigation, 406 U.S. 472 (1972).
fs
6
On his initial appeal, petitioner challenged his trial in
Burlington County on the ground that the allocation of venue
violated both the New Jersey Court Rules and the Sixth
Amendment. The Appellate Division of the Superior Court held
that Rule 3:14-1, which sets forth the normal standards for
assigning venue of criminal indictments, was not applicable to
indictments returned by Statewide Grand Juries and that, in
such cases, the designated Assignment Judge had unlimited
discretion to assign venue to any county. State v. Zicarelli, 122
N.J. Super. 225, 233-236, 300 A. 2d 154, 157-160 (App. Div.
1973). The court also summarily rejected petitioner's
constitutional argument, 122 N.J. Super. at 236, 200 A. 2d at
160. The New Jersey Supreme Court denied certification, 63
N.J. 252, 306 A. 2d 455 (1971), and this Court, with Mr. Justice
Douglas dissenting, denied certiorari, 414 U.S. 875 (1973).
Petitioner’s second conviction was also appeaied and
resulted, initially, in a dismissal of his conspiracy conviction on
double jeopardy grounds and a reversal of his substantive count
convictions. State v. "ouf, 126 N.J. Super. 321, 314 A. 2d 376
(App. Div. 1973). However, on the State’s appeal the New Jersey
Supreme Court reinstated the substantive count convictions. 64
N.J. 172, 313 A. 2d 793 (1973). '
B. The Initial Third Circuit Decisions
(1) The Panel Opinion
In a decision filed on November 18, 1975, a panel of the
Third Circuit, consisting of Judges Adams, Van Dusen and
‘Hunter, concluded that petitioner had been denied his Sixth
Amendment right to a jury selected in such a manner as to
insure a “fair possibility for obtaining a representative cross-
section of the community”. They granted petitioner's request for
a writ of habeas corpus, thereby reversing the District Court.
7
Judge Van Dusen, writing for the court, stated that the
constitutional right to a fair cross-section, as enunciated by this
Court, required that no distinctive groups in the community be
excluded from the pool of names from which a defendant's jury
is chosen. Taking judicial notice of the fact that “very often there
are substantial differences between residents of different
geographical areas” (89a-90a), he rejected the State’s contention
that petitioner had the burden of establishing by extensive
demographic analysis that an excluded group was characterized
by a “distinctive uniformity of experience and attributes” (89a).
Nevertheless, he went on to note statistics that established
significant demographic differences between the residents of
Burlington and Hudson Counties (90a). The court further found
that inclusion in the venire of persons “from the area where the
crime was committed would appear to serve an important Sixth
Amendment interest” (91a). He stated:
“To exclude the residents of that area which has
the closest connection to the crime — the area in
which the crime was committed — would tend to
undercut the sense of community participation
and shared responsibility for the enforcement of
the criminal laws. Participation by the residents
of the area most affected helps to legitimate the
criminal process and to preserve public
confidence in the integrity of the jury system”
(92a).
The court concluded that the State had failed to produce
substantial evidence that the exclusion of jurors from the locus
of the crime, Hudson County, did not deprive petitioner of the
“fair possibility for obtaining a representative cross-section of
the community” as required by the Sixth Amendment.
8
(2) The En Banc Decision
Upon the State’s petition, a rehearing en banc was granted
and the decision of the panel was vacated.
In an opinion filed on September 10, 1976, the Third Circuit
affirmed the denial of the writ of habeas corpus by the District
Court, rejecting one of petitioner’s Sixth Amendment claims and
concluding that he had failed to exhaust his state remedies, 18
U.S.C. §2254(B), with respect to two additional Sixth
Amendment claims, one of them being the fair cross-section
requirement relied upon by the panel in the earlier opinion.
Zicarelli v. Gray, 543 F. 2d 466 (3rd Cir. 1976). The other
ground, involving the “previously ascertained by law” provision
of the constitutional guarantee, had first been raised during the
en banc oral argument.
Judge Adams, writing for the court, first concluded that
petitioner had failed to fairly present his cross-section claim to
the state courts as mandated by Picard v. Connor, 404 U.S. 270
(1971). He then proceeded to discuss petitioner’s other Sixth
Amendment claim, involving the concept of venue or vicinage;
whether under the Constitution “citizens residing in the area
where the crime was committed may be excluded from the jury”,
543 F. 2d at 475. After an exhaustive examination of the Sixth
Amendment’s history, Judge Adams concluded that the ancient
right of trial by a jury of the vicinage, or neighborhood where
the crime had allegedly occurred, was not written into the Sixth
Amendment. Rather, the only constraint on the place of trial
was that expressed in the “state and district” guarantee of the
Amendment. Accordingly, he concluded:
“We therefore hold that Zicareiii’s federal
constiiutional rights were not transgressed when
the State of New Jersey tried him before a jury
drawn from Burlington County on charges of
9
criminal activity that had occurred in Hudson
County. The petit jury was drawn from both the
state and the federal judicial district within which
the crimes occurred, and the state-and-district
guarantee of the Constitution promises no
more.” 534 F. 2d at 482.
Judge Van Dusen, in a separate dissenting and concurring
opinion, concluded that petitioner had exhausted his state
remedies on the cross-section claim. He went on to adhere to his
earlier view, expressed in the panel opinion, that facts subject to
judicial notice suggested significant differences between the
geographical groups from which the venire was drawn and the
excluded group. 543 F. 2d at 487. Thus, “Hudson County
residents appear to be a ‘distinctive group’ when compared with _
residents of Burlington County.” /d. at 487-488. He found a
violation of relevant Supreme Court precedent in the,
“. . unequal treatment of normally drawing petit
juries from the county where the crime is
committed but excluding from such jury of this
defendant many persons of predominant types in
that county, having, for example, over 42% of its
population of foreign stock, for a criminal frial in
an area where only 17% of the residents are of
foreign stock.” Jd. at 488.
Judge Hunter also concurred and dissented in a separate
opinion. Describing the cross-section claim as a “difficult issue”,
he felt that the essential problem was to first define the perimeter
of the relevant “community” of which the petitioner would be
entitled to a fair cross-section. He went on to state that:
“The state practice of drawing a jury only from
the county in which the court sits raises serious
constitutional issues. That selection practice,
10
when combined with the ability to choose the
trial county, results in the evisceration of any
constitutional cross-section requirement. Once a
narrow ‘community’ is chosen, a panel that
represents that community perfectly may
nonetheless violate the sixth amendment, in my
view.” Id. at 489.
Judge Gibbons also filed a concurring opinion. While he
felt that petitioner had exhausted his state remedies on the cross-
section claim, he rejected the argument on its merits. However,
he felt that the “predetermined district claim”, involving a
“substantial claim of a due process violation”, had not been
exhausted since it had first surfaced at oral argument. Noting
that the exhaustion requirement is not jurisdictional and that the
long delay in this case might well justify ignoring the
requirement, he nonetheless concluded as follows:
“In this case, however, it seems the preferable
course to permit the New Jersey courts the
opportunity to develop a record of whatever
justification may exist for that state’s
noncompliance with the predetermined district
standard before any federal court considers
whether the standard is as a matter of due
process applicable to the states.” /d. at 489.
C. The Second Round of State Court Proceedings
Petitioner returned to the state courts with his
constitutional claims by filing an application for post-conviction
relief pursuant to New Jersey Court Rules, R. 3:22.
At the trial level, petitioner presented official data from the
1970 census, 1970 Census of Population, Characteristics of the
Il
Population, Vol. 1 pt. 32 (U.S. Dept. of Commerce), which
established the following:
(a) Hudson County is the smallest and, with nearly
14,000 people per square mile, the most densely
populated county in the state. Burlington is the largest
county in terms of square miles and, with some 274
people per square mile, one of the most sparsely
populated. :
(b) Burlington is one of our agricultural counties,
with more acres devoted to farming than any other
county. Hudson, of course, is largely industrial.
(c) 42.1% of the people in Hudson County are of
foreign stock as compared with only 15.4% of the
population in Burlington.4
(d) In Hudson County some 46.3% of the people
have a language other than English as their mother
tongue; compared with slightly under 19% in Burlington
County. For example, there are seven times as many
Spanish-speaking people in Hudson as in Burlington.
(e) In Hudson County around 36% of the people
have graduated from high school compared with roughly
60% in Burlington County.
(f) In Burlington only 8.8% of the people do not
even have a high school education while in Hudson the
comparable figure is 23.3%.
(g) People in professional and technical work
4. The census defines foreign stock to mean that the individual or one of
his parents were born abroad.
12
comprise about 10.3% of the population in Hudson and
some 17.6% in Burlington.
(h) Factory-type workers make up 20.3% of the
Hudson populace and only 11.5% in Burlington.
(i) 5.2% in Burlington have ‘incomes below the
federally defined poverty level compared with 9.1% in
Hudson. 17.17% in Hudson have incomes below $5,000
while the figure is only 10.7% for Burlington.
(j) The Puerto Rican population of Hudson County
is over 5% while in Burlington it is less than 1%. In
addition among that population those in Burlington are
significantly better educated than those in Hudson.
In denying the petition, the trial judge merely held that,
notwithstanding the census data adduced by petitioner, the
population of Hudson County did not constitute a cognizable
group demographically different from the population make-up
of Burlington County (T42—T44-3).5 He also rejected
petitioner’s contention that his trial violated the Sixth
Amendment’s “previously ascertained by law” guarantee.
Rather, he accepted the State’s argument that trial in the federal
judicial district was sufficient compliance with this provision
(T46—T52-12). He expressed concern, however, that a holding in
petitioner's favor would be tantamount to declaring
unconstitutional certain aspects of the State Grand Jury
practice, something which he, as a trial judge, could not presume
to be the case (T50-1 to 13).
On appeal the decision was affirmed. State v. Zicarelli, 154
5. “T” references are to the transcript of the state court proceedings which
is a part of the record below.
13
N.J. Super. 347, 381 A. 2d 398 (App. Div. 1977) certif. denied,
75 N.J. 601, 384 A. 2d 831 (1978).
D. The Second Round of Federal Court Proceedings
On April 11, 1978 petitioner, who is now on parole after
having served slightly over six years of his sentences, again filed
a petition for a writ of habeas corpus. On April 12, 1979 Chief
Judge Fisher filed a memorandum and order denying the
petition and finding no probable cause for appeal (18sa-19sa),°
Petitioner filed a notice of appeal on April 17, 1979 and
thereafter sought and was granted a certificate of probable cause
by the Third Circuit on June 6, 1979.
On September 9, 1980 a panel of the Third Circuit,
consisting of Judges Gibbons, Sloviter and Higginbotham,
affirmed the judgment of the District Court, with Judge Gibbons
dissenting.
Writing for the majority, Judge Sloviter rejected petitioner’s
argument that his trial in Burlington County violated his right to
a jury drawn from a fair cross-section of the community. With
respect to the contention that the cross-section requirement
includes a geographic component, i.e., that petitioner’s “right to
a jury representative of the community was violated at the outset
when he was tried by jurors drawn from an area which did not
include the scene of the alleged crime” (5A), she concluded that
such would “perform the same function as the explicit venue
provision of the Sixth Amendment” (7A) which had been
implicitly rejected in petitioner’s earlier appeal. Zicarelli v. Gray,
supra (7A-8A). The other prong of petitioner’s cross-section
argument was a demographic one: that since the “Hudson
County population is significantly different in its demographic
6. “sa” references are to the appendix to petitioner's brief in the Third
Circuit.
14
characteristics than the Burlington County population. . .the
exclusion of Hudson County jurors resulted in a panel of jurors
along significantly different social, ethnic, economic and
educational lines”, thus constituting “the exclusion of a
‘distinctive group’ or ‘identifiable segment’ of the community, in
violation of the Sixth Amendment” (5A). While acknowledging
the demographic differences between the two counties (9A) the
court concluded that those differences “are not sufficiently
substantiated in terms of the characteristics which foster group
identification to reflect adversely on the ability of the Burlington
County jury panel to perform its jury function with impartiality,
either in actuality or in appearance” (17A).
The majority also rejected petitioner’s contention that his
trial in Burlington County violated the Sixth Amendment's
guarantee of trial in a district “previously ascertained by law”
(17A). After an exhaustive review of the scant history of the
clause, the majority concluded that it applies only to federal
criminal trials and not to state criminal trials, notwithstanding
their “concern with a procedure which appears to permit
assignment of the place of trial at the unfettered discretion of the
prosecuting attorney or assignment judge. . .” (29A).
Judge Gibbons dissented with respect to the “previously
ascertained by law” aspect of the case. After his own analysis of
the historical basis of the clause, he concluded that it was
intended to have “an additional, non-geographic, anti-
manipulative purpose,” (34A), which should be applied to the
states through the due process clause of the Fourteenth
Amendment. The clause, he felt, should be read as “adding to
the geographic clauses of Article III and the Sixth Amendment a
prohibition against any ex post facto manipulation of the district
of trial by the government, for whatever reason.” (354A). Finding
“no reason why the national policy reflected in the previously
a
15
ascertained by law clause should not apply” to the states he went
on to conclude that such anti-manipulative policy had been
violated in petitioner’s case (36A).
A timely petition for rehearing, with suggestion for
rehearing en banc, was denied, Judge Gibbons voting for
rehearing (37A).
REASONS FOR GRANTING THE WRIT
This case presents two extremely significant and novel
questions involving interpretation of the Sixth Amendment. One
issue is whether the guarantee of trial in a “district previously
ascertained by law” involves a concept of so fundamental a
nature as to: be applicable to the states through the due process
clause of the Fourteenth Amendment. The clause in question has
never, until the decision below, been interpreted with respect to
its possible applicability to the states. The second issue involves
the representative cross-section guarantee of the Sixth
Amendment which has been the subject of several decisions in
this Court but never in the context of a demographic claim such
as that made in this case.
The majority below has failed to correctly interpret the
“previously ascertained by law” clause of the Sixth Amendment
and to apply it to the facts of this case.
The Sixth Amendment issue addressed by the court below,
concerning the “previously ascertained by law” clause, is one
that has not been spoken to by this Court in over fifty years.
Lewis v. United States, 279 U.S. 63 (1929). Indeed, no court,
until now, has ever addressed the issue of whether that clause is
16
applicable to the states through the due process clause.’ It
remains the sole clause of the Sixth Amendment not to have
been applied to the states.
While it is clear that the word “district” in the Sixth
Amendment referred to the federal judicial districts established
by the Judiciary Act of 1789, Zicarelli v. Gray, supra, 543 F. 2d
at 477 n. 59, the history of the amendment likewise shows that
the framers were greatly concerned with the possibility that an
accused might be subjected to trial in a distant place at the whim
of the prosecuting authorities. With respect to the federal system
the framers of the Constitution were only content tu drop the
“vicinage” wording from the Sixth Amendment when they were
assured that the place of trial would be fixed by the Judiciary
Act., ie. “ascertained by law” or, as the majority below
acknowledged, that “the districts would not be readjusted
arbitrarily to meet the circumstances of a particular case” (23A).
Of course, in 1789 there was no concern with the possible
meaning of the terms used as they might apply to the states
nearly two hundred years later. Yet here, as with many other
guarantees in the Bill of Rights, there exists a concept so
fundamental as to be part of “the very essence of a scheme of
ordered liberty”. Palka v. Connecticut, 302 U.S. 319 (1937),
which is covered by the term “due process of law.”® Inherent in
the “previously ascertained by law” clause is the fundamental
notion that the place of trial be previously fixed so that it can
not be moved about, to the prejudice of an accused, by the whim
of the prosecutorial or judicial authorities. While the framers did
not intend to straitjacket the legislators in fixing the place of
trial, they did intend that the locale be the subject of legislative
7. Lewis involved a federal prosecution. See the discussion below (25A-
26A).
8. For other definitions of due process see Duncan v. Louisiana, 39\ U.S.
145, 148-149 (1968).
=%
>?
17
action so that a policy judgment could be made by the people
acting through their elected representatives. As with other
aspects of the jury trial guarantee, this provision provides a
further “safeguard against arbitrary law enforcement”. Williams
v. Florida, 399 U.S. 78, 87 (1970). '
Seen in this light it would appear that the previously
ascertained by law concept is one “essential to the concept of a
jury trial and therefore applicable to prosecutions by the states.”
Zicarelli v. Gray, supra, 543 F. 2d at 475, fn. 44. Asthis Court
said in Williams v. Florida, supra, 399 U.S. at 100, the central
purpose of the jury trial “is to prevent oppression by the
Government” by providing “an inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant,
biased or eccentric judge. . .” Certainly, having the place of trial
fixed by the Legislature beforehand furthers that objective, as
Judge Gibbons noted in his dissenting opinion below (34A-35A).
Here, the place of trial was not so ascertained prior to trial.
While one might have thought that the New Jersey Court Rules
governing venue would control the place of trial, the New Jersey
courts, in petitioner’s first appeal, held that the normal venue
rules do not govern the allocation of State Grand Jury
indictments for trial. Those indictments, the court said, may be
assigned anywhere at the discretion of the Assignment Judge
charged with supervision over the State Grand Jury. State v.
Zicarelli, supra, 122 N.J. Super. at 233-236, 300 A. 2d at 157-
160. Unfortunately, that holding runs counter to the general
principle that venue requirements are imposed, in large measure,
“to prevent the government from choosing a favorable tribunal
or one which may be unduly inconvenient for the defendant.”
United States v. Rivera, 388 F. 2d 545, 548 (2d Cir. 1968), cert.
denied, 392 U.S. 937 (1968); Johnson v. United States, 323 U.S.
273, 275 (1944). Thus, exactly what should be forbidden is what
New Jersey now sanctions. It was to the evils of just such a
18
practice that Judge Hunter, Zicarelli v. Gray, supra, 543 F. 2d at
489, and Judge Gibbons (35A-36A) addressed themselves.
The reason why the place of trial must be “previously
ascertained by law” was touched upon by Justice Frankfurter in
Johnson when he noted that questions of venue in criminal cases
“are not merely matters of formal legal procedure. They raise
deep issue of public policy.... These are matters that touch
closely the fair administration of criminal justice and public
confidence in it, on which it ultimately rests.” 323 U.S. at 276.
While petitioner urges, on the merits, that Judge Gibbons’
opinion below strikes the proper balance in this controversy,
even those who might agree with the majority cannot deny the
importance of the issue, not only as a matter of historical Sixth
Amendment jurisprudence but as an aspect of state criminal
procedure which can, and in this case did, lend itself to
prosecutorial abuses which should receive the attention of this
Court.
Il.
Petitioner was denied a trial by a jury constituting a
representative cross-section of the community by virtue of his
trial in a county with significant demographic differences from
the county where his alleged crime was committed.
Petitioner claimed that his trial in Burlington County, with
jurors drawn from that county, denied him his Sixth
Amendment right to trial by a jury selected in such a manner as
to guarantee a “fair possibility for obtaining a representative
cross-section of the community”, Williams v. Florida, 399 U.S.
78, 100 (1970); Peters v. Kiff, 407 U.S. 493, 500 (1972).
Petitioner’s claim in that regard was based upon statistics
establishing significant demographic differences between the
7%
19
population of urban, industrial Hudson County, where the
indictment claimed that the crime took place, and rural
Burlington County where the trial was held.
This Court has held that the exclusion of any large and
identifiable segment of the community from jury service violates
the Sixth Amendment’s guarantee of a representative jury,
Peters v. Kiff, 407 U.S. 493, 503-504 (1972). That guarantee has
been applied to the states with respect to the exclusion of
blacks, as in Peters and much earlier in Smith v. Texas, 311 U.S.
128 (1940), and to women, Taylor v. Louisiana, 419 U.S. 522
(1975). In the exercise of this Court’s supervisory power over the
federal courts not only was the exclusion of women condemned,
Ballard v. United States, 329 U.S. 187 (1946), but wage-earners
as well. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).
Lower courts have extended the reasoning of these cases to
young adults, United States v. Butera, 420 F. 2d 564 (Ist Cir.
1970), and the less educated. United States v. Butera, supra;
Foster v. Sparks, 506 F. 2& 805 (5th Cir. 1975).
In Thiel v. Southern Pacific, supra, this Court, in dictum,
stated that the prohibited exclusion applies not only to racial
groups, but to economic, social, religious, political and
geographic groups as well. 328 U.S. at 220. The proposition that
a geographic exclusion may be constitutionally invalid finds
support in both People v. Jones, 108 Cal. Rptr. 345, 510 P. 2d
705 (Sup. Ct. 1973), and Alvarado v. State, 486 P. 2d 981 (Alas.
1971). See also, People v. McDowell, 27 Cal. App. 3rd 864, 104
Cal. Rptr. 181, 186 (App. Ct. 1972). While both Jones and
Alvarado can be distinguished on their facts, as did the court
below (10A-12A), there can be no doubt that in each case the
court interpreted and applied the Sixth Amendment.
In this case petitioner does not claim the total exclusion of
any one identifiable group. Rather, he claims that the sum total
of several different characteristics of the population rendered the
20
venire from which his jury was selected so different from that of
the place where he should have been tried, as to constitute the
same evil. Ever if one were to focus on a particular segment,
such as those oi foreign stock, the disparity here was great
enough to fall within the prohibition. The court below felt that
these differences were “not sufficiently substantial in terms of the
characteristics which foster group identification to reflect
adversely on the ability of the Burlington County jury panel to
perform its jury function with impartiality, either in actuality or
in appearance.” (17A).
However, that reasoning turns its back on the essential
philosophy behind the representative jury guarantee as expressed
in Peters v. Kiff, 407 U.S. at 503-504:
“When any large and identifiable segmet of the
community is excluded from jury service, the
effect is to remove from the jury room qualities
of human nature and varieties of human
experience, the range of which is unknown and
perhaps unknowable. It is not necessary to
assume that the excluded class will consistently
vote as a class to conclude, as we do, that their
exclusion deprives the jury of a perspective on
human events that may have unsuspected
importance in any case that may be presented.”
It is urged that the court below erred in its interpretation
and application of the relevant decisions of this Court, a
conclusion reached by the original Third Circuit panel which
heard this case in 1975, and adhered to by Judges Hunter and
Van Dusen in their dissents in Zicarelli v. Gray, supra. As the
opinion below itself makes cléar, the lower court opinions on the
proper reach of this guarantee are far from uniform and, as
discussed above, at least two states have expressed opinions
21
directly contrary to the decision below. This Court should
undertake to bring order out of the conflicting views on this
important issue.
CONCLUSION
For the reasons set forth herein a writ of certiorari should
issue to review the judgment of the United States Court of
Appeals for the Third Circuit.
Respectfully submitted,
s/ HARVEY WEISSBARD
Attorney for Petitioner
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1722
JOSEPH ZICARELLI,
Appellant
?.
CHRISTOPHER DIETZ, Chairman,
New Jersey Parole Board and
SALLY G. CARROLL, Associate Member,
New Jersev Parole Board
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 78-0740)
Argued November 14, 1979
Before: GIBBONS, HIGGINBOTHAM and SLOVITER.
Circuit Judges
(Opinion Filed September 9, 1980)
Harvey Weissbard (Argued)
Isles. Newman & Weissbard
20 Northfield Avenue
West Orange. New Jersev 07052
Attorney for Appellant
2a
Appendix A
John J. Degnan
Attorney General of
New Jersey
Peter Brennan (Argued)
Deputy Attorney General
Division of Crainal Justice
Appellate Section
P.O. Box CN24
Princeton, New Jersey 08540
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Appellant claims that because his trial in state court
took place in a county in which the crime was not com-
mitted, with a jury drawn from that county, two require- ©
ments of the Sixth Amendment were violated, the re-
quirement that the jury must be drawn from a fair cross
section of the community and the requirement that the
defendant be given a trial in a district which “shall have
been previously ascertained by law.”' We believe neither
claim can be sustained and affirm the judgment of the
district court dismissing the petition for a writ of habeas
corpus.
Il.
The relevant facts were set forth in detail in this
court’s prior opinion on appellant’s initial appeal from
1. The relevant part of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law,. . . .”
3a
Appendix A
the district court’s denial of his motion for a writ of habe-
as corpus. See Zicarelli v. Gray, 543 F.2d 466, 468-69
(3d Cir. 1976) (en banc). Briefly, seven indictments
were returned against Zicarelli by a New Jersev grand
jury with statewide investigative jurisdiction. The venue
of the indictments had originally been laid in Hudson
and in Mercer counties, but was transferred to
Burlington County in an ex parte proceeding bv the as-
signment judge pursuant to a petition by the Attorney
General requesting such transfer under state statutes
authorizing such a procedure. N.J.S.A. 2a:73A-1, -2, -8
(1976). A hearing by the assignment judge on Zicarelli‘s
motion to redesignate venue in Hudson County was
mandated by the New Jersey Supreme Court. Following
the hearing, the assignment judge denied the motion on
the grounds that in Burlington County the security of
the principal prosecution witness could be better main-
tained, an impartial jury could be impanelled that would
give defendants a fair trial, a judge and a courtroom
were available, and venue was not prohibited under the
Sixth Amendment to the United States Constitution.
Zicarelli was convicted on several counts of the last two
indictments which arose out of his alleged efforts to pro-
tect from prosecution an illegal gambling operation that
he controlled in Hudson County. Zicarelli's first convic-
tion was affirmed by the New Jersey Superior Court.
State v. Zicarelli, 122 N.J. Super. 225, 300 A.2d 154
(App. Div.), cert. denied, 63 N.J. 252, 306 A.2d 455, cert.
denied, 414 U.S. 875 (1973) and the second conviction
was initially reviewed by the Superior Court, and ulti-
mately upheld by the New Jersey Supreme Court. State
v. Louf. 126 N.J. Super. 321, 314 A.2d 376 (App. Div.),
affd in part, 64 N.J. 172, 313 A.2d 793 (1973) (per
Curiam).
Zicarelli filed a petition for a writ of habeas corpus
in the district court pursuant to 28 U.S.C. §2254
alleging that his constitutional rights were violated
when he was tried by a jurv selected from residents of a
4a
Appendix A
county other than the one in which the alleged crimes
were committed, and that he was denied the right to trial
by a jury comprising a representative cross section of the
locale where the crimes took place. The writ was denied
by the district court. On appeal, at the oral argument be-
fore this court en banc he also claimed that the “district”
trom which the trial jury was chosen was not previously
ascertained by law, as required by the Sixth Amend-
ment. This court, finding that only the venue? claim had
been presented to the state courts, reached only that as-
pect of Zicarelli’s claim on the merits.
We assumed, without deciding, that the provision of
the Sixth Amendment guaranteeing trial before a “jury
of the State and district wherein the crime shall have
been committed” is applicable to the states, and held
that Zicarelli’s federal constitutional rights were not
transgressed when New Jersey tried him before a jury
drawn from Burlington County on charges of criminal
activity that had occurred in Hudson County. We held
that “[t]he petit jury was drawn from both the state and
the federal judicial district within which the crimes oc-
2. We use the term “venue” to characterize the claim previous-
ly considered by this court because that was the characterization
used in our prior opinion. However, Zicarelli’s argument there was
that his constitutional right under the Sixth Amendment was violat-
ed when he was tried before a jury drawn from a county other than
the one where the criminal activity occurred. It would appear that
this is more aptly referred to as Zicarelli’s “vicinage” claim, since
the Sixth Amendment encompasses the vicinage requirement,
specifying the geographic area from which jurors in criminal pro-
ceedings must be drawn, in contrast to the venue requirement set
forth in Article III, Section 2, clause 3 of the Constitution which
provides that criminal trials “shall be held in the State where the
said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.” See Note, The Sixth Amend-
ment and the Right to a Trial By a Jury of the Vicinage, 31 Wash. &
Lee L. Rev. 399, 399-400 and notes 1, 3 (1974). We will continue to
adhere to our previous characterization to avoid confusion.
Sa
Appendix A
curred, and the state-and-district guarantee of the Con-
Stitution promises no more.” Id. at 482.
We did not reach appellant's claims that placing his
trial in Burlington County also violated the cross section
requirement and the “previously ascertained” require-
ment of the Sixth Amendment because we found appel-
lant had not exhausted his state remedies with regard to
them. We are satisfied that appellant has now followed
the appropriate procedure and has exhausted his state
remedies. See State v. Zicarelli, 154 N.J. Super. 347.
351, 381 A.2d 398,.400 (1977), cert. denied, 75 N.J. 601.
384 A.2d 831 (1978). Thus, these two claims are now
ripe for adjudication.
Iil.
Zicarelli's argument that his trial in Burlington
County violated his right to a jurv drawn from a fair
cross section of the community is two-pronged. He
claims that his right to a jurv representative of the co.n-
munity was violated at the outset when he was tried by
jurors drawn from an area which did not include the
scene of the alleged crime, and that this would consti-
tute a violation of the Sixth Amendment even if the jurv
panel had perfectly retlected the narrow “community” in
which the trial did take place. In essence. then. this as-
pect of Zicarelli’s cross’section claim is a geographic one.
The other aspect of his claim is a demographic one.
since he claims that the Hudson County population is
significantly different in its demographic characteristics
than the Burlington County population. He argues that
since the exclusion of Hudson County jurors resulted in
a panel of jurors along significantly different racial, eth-
nic. economic and educational lines. this constituted the
exclusion of a “distinctive group” or “identifiable seg-
ment” of the community, in violation of the Sixth
Amendment.
The cross section requirement of the Sixth Amend-
ment, unlike the venue requirement. is not explicitly in-
6a
Appendix A
cluded in the language of the amendment. Nonetheless,
it is established that an essential characteristic of an im-
partial jury is that the jury be drawn from a fair cross
section of the community. Taylor v. Louisiana, 419 U.S.
522, 526-31 (1975).°
The requirement of a representative jury was origi-
nally articulated as a requirement of equal protection in
cases vindicating the right of a black defendant to chal-
lenge the systematic exclusion of black persons from his
grand and petit juries. See Smith v. Texas, 311 U.S. 128,
129-30 (1940). Later, the Court exercised its supervisory
power over federal courts to permit any defendant to
challenge the arbitrary exclusion from jury service of his
or her own or any other class. See, e.g., Glasser v. United
States, 315 U.S. 60, 83-87 (1942); Thiel v. Southern Pa-
cific Co., 328 U.S. 217, 220 (1946); Ballard v. United
States, 329 U.S. 187, 195 (1946). The principle that a
defendant’s entitlement to a representative jury is an as-
pect of the constitutional right to jury trial protected by
the Sixth Amendment first emerged in Williams v. Flor-
ida, 399 U.S. 78, 100 (1970). See Peters v. Kiff, 407 U.S.
493, 500 n.9 (1972).
The nature of the jury exclusion which was the is-
sue in these cases related to a particular sex, race or
class of the population. In Smith v. Texas, supra, blacks
were found to have been excluded from the grand jury
3. Congress has legislatively mandated the same requirement
in the Jury Selection and Service Act of 1968, currently codified in
28 U.S.C. §1861 (1976), which provides, in part:
It is the policy of the United States that all litigants in Federal
courts entitled to trial by jury shall have the right to grand and
petit juries selected at random from a fair cross section of the
community in the district or division wherein the court
convenes.
In United States v. Zirpolo, 450 F.2d 424 (3d Cir. 1971), we inter-
preted this provision to preclude partial as well as total denial of rep-
resentation of women on the jury venires.
7a
Appendix A
under a jury selection scheme which permitted wide dis-
cretion in selection. In Ballard v. United States, supra,
there was purposeful and systematic exclusion of wom-
en, whereas in Glasser v. United States, supra, there
was alleged exclusion of certain women, those who were
not members of the Illinois League of Women Voters. In
Thiel v. Southern Pacific Co., supra, the admitted dis-
crimination was the exclusion of those who worked for a
daily wage.
The rationale given in these cases for the require-
ment that the jury represent a fair cross section of the
community was that class distinctions and discrimina-
tions are abhorrent to the democratic ideals of trial by
jury. Thiel v. Southern Pacific Co., 328 U.S. at 220. As
Justice Murphy noted in Thiel, jury competence is an in-
dividual rather than a group or class matter. Id. Thus. a
claim that the cross section requirement has been violat-
ed mandates essentially a demographic inquiry. See
Zicarelli v. Gray, 543 F.2d at 474.
If appellant were correct that the cross section claim
also comprehends a geographic component, it would, to
that extent, perform the same function as the explicit
venue provision of the Sixth Amendment. On his pre-
vious appeal, we considered appellant’s argument that
he had a constitutional right to be tried by a jury com-
, posed of residents of the county where the crime was
committed, and that the exclusion of Hudson County
residents from the jury venire violated the Sixth Amend-
ment. We rejected this claim, holding that “the concept
that a criminal trial must be before a jury composed of
residents of the county where the crime occurred was
not deemed to be of sufficient consequence to be guar-
anteed by the Constitution.” Id. at 477-78. Instead it was
left to Congress to determine by statute whether jurors
should be summoned from the county of the crime, and
Congress, which originally included such a provision in
the 1789 Judiciary Act, subsequently repealed that re-
quirement in 1862. It was implicit in our discussion that
8a
Appendix A
if there was any requirement in the Sixth Amendment
that jurors must be drawn from the county of the crime,
it must be found, if anywhere, in the venue requirement.
It would be anomolous were we to hold that although the
explicit venue provision in the Sixth Amendment does
not mandate trial by jurors of the county where the
crime was committed, the implicit cross section require-
ment of the same Amendment does. Therefore, we re-
ject appellant’s claim that the cross section requirement
was violated by the mere fact that Zicarelli was tried by a
jurv drawn from a panel that did not include residents of
Hudson County.
We next turn to Zicarelli’s claim that the demo-
graphic differences between the population of Hudson
and Burlington Counties were of such quality or quanti-
tv that a jury venire excluding Hudson County residents
and drawn exclusively from residents of Burlington
County failed to represent a fair cross section of the com-
munity in which the crimes occurred. When Zicarelli
presented his cross section claim to the New Jersey
courts, he proffered the following census data derived
from the 1970 U.S. Census [1970 Census of Population
U.S. Dept. of Commerce Characteristics of the Popula-
tion, Vol. 1, p.32] to support his allegation:
(a) Hudson County is the smallest and, with nearly
14,000 people per square mile, the most densely
populated county in the state. Burlington is the larg-
est county in terms of square miles and, with some
274 people per square mile, one of the most sparsely
populated.
(b) Burlington is one of our agricultural counties,
with more acres devoted to farming than any other
county. Hudson, of course, is largely industrial.
(c) 42.1% of the people in Hudson County are of
foreign stock as compared with only 15.4% of the
nonulation in Burlington.
9a
Appendix A
(d) In Hudson County some 46.3% of the people
have a language other than English as their mother
tongue; compared with slightly under 19% in
Burlington County. For example, there are seven
times as many Spanish speaking people in Hudson
as in Burlington.
(e) In Hudson County around 36% of the people
have graduated from High School compared with
roughly 60% in Burlington County.
(f) In Burlington only 8.8% of the people do not
even have a high school education while in Hudson
the comparable figure is 23.3%.
(g) People in professional and technical work com-
prise about 10.3% of the population in Hudson and
some 17.6% in Burlington.
(h) Factory type workers make up 20.3% of the
Hudson populace and only 11.5% in Burlington.
(i) 5.2% in Burlington have incomes below the fed-
erally defined poverty level compared with 9.1% in
Hudson. 17.7% in Hudson have incomes below
$5,000 while the figure is only 10.7% for
Burlington.
(j) The Puerto Rican population of Hudson County
is over 5% while in Burlington it is less than 1%. In
addition among that population those in Burlington
are significantly better educated than those in
Hudson.
These figures show that there is, as appellant con-
tends, some difference in the demographic composition
between Burlington and Hudson Counties. Burlington
would, in ordinary parlance, be considered more rural.
while Hudson would be categorized more industrial. Ac-
knowledgment of such di‘ferences hardly foretokens
that the differences are of constitutional significance.
10a
Appendix A
The cross section requirement of the Sixth Amend-
ment has been held to prohibit the systematic exclusion
of distinctive groups in the community. Taylor v. Louisi-
ana, 419 U.S. at 538. In discussing this requirement,
the Court has rejected the argument that every distinct
voice in the community has a right to be represented on
every jury. “All that the Constitution forbids. . . is sys-
tematic exclusion of identifiable segments of the com-
munity from jury panels and from the juries ultimately
drawn from those panels.” Apodaca v. Oregon, 406 U.S.
404, 413 (1972) (plurality opinion).
In an effort to come within this precedent, Zicarelli
claims that an identifiable group has indeed been inten-
tionally excluded, and identifies that group as a geo-
graphic one, all those from Hudson County. The lan-
guage in Thiel v. Southern Pacific Co. stringing together
“all of the economic, social, religious, racial, political and
geographical groups of the community” who cannot be
systematically and intentionally excluded, 328 U.S. at
220, is cited to support the claim that geographic groups
within the community have the same characteristics of
group identification as do groups differentiated by race,
sex and class. Nothing in the Thiel case itself supports
that argument, since the facts of that case involved ex-
clusion of laborers who worked for a daily wage. There is
a manifestly higher cohesion of interest among day la-
borers, who may be considered to represent an economic
class, than among those brought together by the mere
_ coincidence of the geographic unit where they live.
Zicarelli relies primarily on two cases decided by
state supreme courts for his claim that exclusion of a
group based upon geography is constitutionally invalid.
In Alvarado v. State, 486 P.2d 891 (Alaska 1971), de-
fendant, a partial Aleut Indian who was found to be
closely allied to the lifestyle of Alaska Native culture,
was indicted for rape committed in his home communi-
tv, Chignik, a remote rural area 450 miles from Anchor-
age with a total population of 100, 95 of whom were Indi-
lla
Appendix A
ans. The area was culturally isolated, without television.
running water, roads or cars. The principal contact with
the outside community was a weekly airplane flight.
Alvarado’s trial took place in Anchorage. where all pro-
spective jurors were chosen from an area within a radius
of 15 miles of Anchorage. Of particular significance was
the fact that this 15 mile line precluded residents of vir-
tually all Native villages from representation on the jury
panel. The Court found that because of the profound
cultural differences between the Native villages and the
urban areas of Alaska, Alvarado’s trial before a jury
drawn from a panel which excluded virtually all resi-
dents of such Native villages could not be considered im-
partial because the jury could not have adequately repre-
sented a fair cross section of the community in which
the crime occurred. The inapplicability of the holding to
other geographic areas was stressed several times by the
court. It stated, “Because of the vast expanses of land
which lie within the borders of our state, because of the
variety of the cultural heritage of our citizens and be-
cause of the relative sparseness of our population. the
problem of selecting juries in Alaska is unique.” Id. at
905.
The other case relied on by Zicarelli is People v.
Jones, 9 Cal. 3d 546, 510 P.2d 705. 108 Cal. Rptr. 345
(1973), in which a closely divided California Supreme
Court held that a defendant had a constitutional right to
be tried by a jury which included the precinct in which
the crime was allegedly committed. The majority inter-
mingled in its rationale the explicit “State and district”
provision of the Sixth Amendment. which it interpreted
to apply also to the county of the crime. and the implicit
cross section requirement of that Amendment. The Cali-
_ fornia court's interpretation of the “State and district”
provision is contrary to that of this court in Zicarelli v.
Gray, supra, to which, of course, we adhere. Its holding
that the representative cross section requirement en-
compasses the right to be tried bv a jurv selected from
12a
Appendix A
residents of the .area where the crime was committed is
contrary to other precedent, which we find more
persuasive.
We begin with the well-established principle that a
defendant does not have a right under the Sixth Amend-
ment to have jurors drawn from the entire district. Lewis
v. United States, 279 U.S. 63, 72 (1929); Ruthenberg v.
United States, 245 U.S. 480, 482 (1918); United States
v. Florence, 456 F.2d 46, 50 (4th Cir. 1972). As noted by
Judge Learned Hand in United States v. Gottfried, 165
F.2d 360 (2d Cir.), cert. denied, 333 U.S. 860 (1948),
the district and circuit courts had the power since enact-
ment of the Judiciary Act of 1789:
to divide a district territorially in the interest of an
impartial trial, of economy, and of lessening the bur-
den of attendance. There cannot be the faintest
question of the constitutionality of this statute; the
courts have again and again recognized its validity.
Furthermore, it would be impossible in practice to
administer it, if it were a condition that the divisions
made must be so homogeneous that they showed an
equal percentage of all possible groups.
Id. at 364 (footriotes omitted). In Gottfried, the court re-
jected a challenge to the jury selection procedures in the
Southern District of New York whereby all jurors were
chosen from three out of the eleven counties in the dis-
trict. Appellants had argued that this procedure resulted
in an imbalance between urban and rural jurors, be-
cause the counties from which jurors were chosen were
by far the most heavily populated areas in the district.
The court noted that there were rural areas in the coun-
ties from which the jurors were drawn and that inclu-
sion of the other counties would only slightly increase
the probability of the presence of rural jurors on a par-
13a
Appendix A
ticular jurv. Id. See also State v. Kappos, 189 N.W. 2d
563, 564 (lowa 1971), cert. denied, 405,U.S. 982 (1972).
Furthermore, it has also been heid that there is no
constitutional right to a jurv chosen from the division
where the offense was committed or from the entire dis-
trict which includes that division. In United States v.
Florence, 456 F.2d at 48-49, the Fourth Circuit rejected
the claim that the Sixth Amendment precluded appel-
lant’s trial in a division other than that where the offense
had occurred and where appellant had been a lifelong
resident. Although the court in Florence did not discuss
the constitutional cross section requirement, the First
Circuit in United States v. Cates, 485 F.2d 26, 29 (Ist
Cir. 1974). held that the statutory cross section require-
ment did not require that a grand jury be chosen from
any particular division within a district. In People vt.
Taylor, 39 N.Y.2d 649, 350 N.E.2d 600, 385 N.Y.S.2d
270 (1976), the New York Court of Appeals rejected a
federal constitutional challenge to statutory procedures
which resulted in defendant's being tried by a jurv
drawn entirely from New York County for a crime com-
mitted in Kings County. The court concluded that in the
absence of a showing of some significant disparity. e.g.
in the racial. ethnic or sexual composition of geographic
groups. such geographic groups were not distinctive or
cognizable groups for the purposes of analysis under the
cross section requirement. Id. at 655, 350 N.E.2d at
603-04, 385 N.Y.S.2d at 273.
A claim analogous to Zicarelli’s, that residents of a
county should be considered a distinct group for cross
section analvsis. was rejected by the First Circuit. The
court accepted voung adults, sex. and educational at-
tainment as legally cognizable groups tor purposes of the
cross section claim. United States v. Butera, 420 F.2d
564 (1st Cir. 1970): but see L’nited States v. Test. 550
F.2d 577, 590-93 (10th Cir. 1976). It rejected detend-
ant’s claim that county residence could be considered
l4a
Appendix
such a legally cognizable group. It gave the following
reason for the distinction:
More importantly, however, we are not aware
that residents of counties can be said to hold views
and attitudes which are in any way “distinct” from
those of their neighbors in nearby counties, nor has
defendant given us any evidence of such distinct-
ness. While common experience tells us that peo-
ple’s attitudes differ to some degree along lines of
age, sex and extent of education, we are not aware
that they differ along county lines. We have been
willing above to give a broad meaning to the requi-
site “distinctness” of classes but in each instance
we could point to some indication that the groups
isolated by defendant—at least in a_ general
sense—possessed the essential element of distinct-
ness. That term would have no meaning at all were
we to say—in the absence of any supporting
evidence—that residents of some counties have
views and attitudes genuinely distinct from those of
nearby counties.
United States v. Butera, 420 F.2d at 572 (footnotes
omitted). This is consistent with the approach taken by
the Supreme Court in considering why a distinct group
cannot be excluded from the jury array. The Court has
stated that it has been because members of such identi-
fiable groups, such as women “bring to juries their own
perspectives and values that influence both jury delib-
eration and result.” Taylor v. Louisiana, 419 U.S. at 532
n.12.
Zicarelli does not contend that the selection of ju-
rors from Burlington County resulted in the exclusion of
any identifiable segment of the community from the jury
panel. Although the data he produced shows that there
may be more of one identifiable segment of the commu-
nity in one county than in the other, it fails to show that
Sa
Appendix A
any identifiable group is unrepresented in Burlington
County or that there is such a gross disproportionate rep-
resentation of any identifiable group that it is tanta-
mount to an exclusion which might fairly be reflected in
the jury's “perspective and values.”
In the absence of any showing of such exclusion,
Zicarelli's argument is reduced to one claiming that the
jury panel must fairly mirror the community in which
the crime was allegedly committed. That contention has
been rejected both in the context of the petit jurors actu-
ally chosen and the jury venire. The Supreme Court has
said, “It should also be emphasized that in holding that
petit juries must be drawn from a source fairly repre-
sentative of the community we impose no requirement
that petit juries actually chosen must mirror the com-
munity and reflect the various distinctive groups in the
population.” Taylor v. Louisiana, 419 U.S. at 538. In
Fay v. New York, 332 U.S. 261 (1947), the Court consid-
ered whether the lack of proportional representation of
various groups on New York's special or “blue ribbon”
jury panel violated the Constitution. The Court noted
that since we have never required proportional represen-
tation along racial lines, it would be much more imprus
dent to require proportional representation of economic
classes. After commenting about the difficulty in
classifying the occupations which were said to comprise
the economic class allegedly excluded from the special
panel in that case, laborers, craftsmen and service em-
ployees, the Court stated:
No significant difference in viewpoint between
those allegedly excluded and those permitted to
serve has been proved and nothing in our experi-
ence permits us to assume it. It would require large
. assumptions to say that one’s present economic sta-
tus, in a society as fluid as ours, determines his out-
look in the trial of cases in general! or of this one in
particular. There is of course legitimate conflict of
16a
Appendix A
interest among economic groups, but they are so
many and so overlie each other that not all can be
significant. There is entrepreneur and wage-earner,
consumer and producer, taxpayer and civil servant,
foreman and laborer, white-collar worker and man-
ual laborer. But we are not ready to assume that
these differences of function degenerate into a hos-
tility such that one cannot expect justice at the
hands of occupations and groups other than his
own. Were this true, an extremely rich man could
rarely have a fair trial, for his class is not often found
sitting on juries.
Id. at 291-92 (footnotes omitted).*
It is important in making a cross section inquiry to
keep in mind the paramount purpose of the requirement
that a jury represent a fair cross section of the communi-
ty. In Taylor v. Louisiana, 419 U.S. at 526, the Court
held that “the presence of a fair cross section of the com-
munity on venires, panels, or lists from which petit ju-
ries are drawn is essential to the fulfillment of the Sixth
Amendment's guarantee of an impartial jury trial in
criminal prosections” (emphasis added). In Thiel v.
Southern Pacific Co., it was stated that “the broad repre-
sentative character of the jury should be maintained,
partly as assurance of a diffused impartiality and partly
because sharing in the administration of justice is a
phase of civil responsibility.” 328 U.S. at 227 (Frankfurt-
er, J., dissenting) (emphasis added).
We conclude that the demographic differences
shown by Zicarelli between Burlington and Hudson
4. Although portions of the discussion in Fay v, New York have
since been overruled. such as that concerning the application of the
Sixth Amendment to the states, 332 U.S. at 288, see Duncan v. Lou-
isiana. 391 U.S. 145 (1968), the majority's discussion of lack of pro-
portional representation has not been disapproved or undermined.
It was cited for that proposition in Taylor v. Louisiana, 419 U.S. at
538.
17a
Appendix A
counties are not sufficiently substantial in terms of the
characteristics which foster group identification to re-
flect adversely on the ability of the Burlington County
jury panel to perform its jury function with impartiality,
either in actuality or in appearance.
Although we do not decide whether the cross sec-
tion claim would preclude exclusion of a geographic
group when the group is profoundly culturally distinct,
as it was in Alvarado v. State, 482 P.2d 891 (Alaska,
1971), we hold that the record in this case does not show
that the exclusion of Hudson County residents from the
jury venire resulted in the exclusion of any significant
element or discernible class of the community. There-
fore, we reject Zicarelli’s claim that his trial violated the
cross section requirement of the Sixth Amendment.
IV.
Zicarelli's second contention before us is that his tri-
al in Burlington County violated the clause of the Sixth
Amendment which requires that the “district [from
which the jury must be chosen] shall have been pre-
viously ascertained by law. . . .” We must first deter-
mine whether this clause, which has received scant at-
tention in the last two centuries, is applicable to the
States, an inquiry which requires, in the first instance,
our analysis of its meaning.
Justice Black’s view that the Bill of Rights was com-
pletely incorporated into the Fourteenth Amendment's
due process clause, and hence fully applicable to the
states, see Adamson v. California, 332 U.S. 46, 71-72,
89 (1947) (dissenting opinion), has never been adopted
by the Court. Instead, many of the rights guaranteed by
the first eight Amendments have been “selectively” ab-
sorbed into the Fourteenth.> See L. Tribe, American
5. Notwithstanding Justice Harlan’s persistent objection to the
premise that the Fourteenth Amendment incorporates or absorbs as
18a
Appendix A
Constitutional Law 567-68 (1978). The determination
whether a right covered by the Fifth and Sixth Amend-
ments with respect to federal criminal proceedings is
also protected against state action by the Fourteenth
Amendment has been said to depend on whether the
right is among those “fundamental principles of liberty
and justice which lie at the base of all our civil and politi-
cal institutions,” Powell v. Alabama, 287 U.S. 45, 67
(1932); whether it is “basic in our system of jurispru-
dence,” In re Oliver, 333 U.S. 257, 273 (1948); and
whether it is “a fundamental right, essential to a fair tri-
al,” Gideon v. Wainwright, 372 U.S. 335, 343-44 (1963);
Malloy v. Hogan, 378 U.S. 1, 6 (1964); Pointer v. Texas,
380 U.S. 400, 403 (1965).
The right to jury trial in the Sixth Amendment was
incorporated within the concept of due process and
hence applicable to the states in serious criminal cases
because a jury was deemed to give the defendant “an in-
estimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccen-
tric judge.” Duncan v. Louisiana, 391 U.S. at 156. How-
ever, this does not mean that every feature of a jury trial
as it existed at common law is necessarily applicable to
the states. Unanimous jury decisions, constitutionally
required in federal prosecutions, are not required in
state trials. Apodaca v. Oregon, 406 U.S. 404 (1972)
(pluralitv opinion). Also, because the common law jury’s
composition of precisely twelve persons is considered an
historical accident, it was held to be unnecessary to ef-
fect the purposes of the jury system and hence subject
to change by the states. Williams v. Florida, 399 U.S. 78
(1970).
NOTE 5 — ‘Continued )
such some of the specific provisions of the Bill of Rights, see, e.g.,
Klopfer v. North Carolina. 386 U.S. 213. 226 (1967) (concurring
opinion). the Court has continued to analvze the issue in terms of
whether rights specified in the first eight amendments are also pro-
tected against state action by the Fourteenth Amendment. See, e.g..
Duncan v. Louisiana. 391 U.S. 145. 149 (1968).
19a
Appendix A
The provisions of the Sixth Amendment, which, in
addition to trial by jury, have been made specifically ap-
plicable to the states are the right to a public trial, In re
Oliver, 333 U.S. 257 (1948); to counsel, Gideon v. Wain-
wright, 372 U.S. 335 1963); to confrontation, Pointer v.
Texas, 380 U.S. 400 (1965); to a fair and speedy trial,
Klopfer v. North Carolina, 386 U.S. 213 (1967); and to
compulsory process in obtaining witnesses, Washington
v. Texas, 388 U.S. 14 (1967).
We might rely solely on the patent inapplicability to
the states of the language of the “previously ascertained
by law” clause applying as it does only to a “district,” a
point to which we will return. However, the courts in
their analysis of the application to the states of particular
Sixth Amendment provisions have generally inquired
into the historical antecedent of the provision and con-
sidered its possible application in light of reason and
reflection.
The difficulty of ascertaining the constitutional
scope of various jury trial attributes in light of the sparse
historical evidence has been commented upon on sever-
al occasions by the Supreme Court. See Williams v. Flor-
ida, 399 U.S. at 93; Apodaca v. Oregon, 406 U.S. at 409.
No aspect of the jury trial seems to us to be more shroud-
ed in obscurity than the “previously ascertained by law”
clause. The issues of vicinage and unanimity were at
least the subject of discussion contemporaneous to the
drafting of the Bill of Rights and the Judiciary Act of
1789 which could be considered in recent decisions rais-
ing those issues. In contrast, diligent research into the
leading sources of Sixth Amendment analysis® has dis-
6. F. Heller, The Sixth Amendment (1969 ed.); M. Farrand,
The Records of the Federal Convention (1911); 1 Annals of Cong.
(Gales & Seaton ed. 1834); Blume, The Place of Trial of Criminal
Cases: Constitutional Vicinage and Venue, 43 Mich. L. Rev. 59
(1944); Warren, New Light on the History of the Federal Judiciary
Act of 1789, 37 Harv. L. Rev. 49 (1923); Frankfurter and Corcoran,
Petty Federal Offenses and the Constitutional Guaranty of Trial by
Jury, 39 Harv. L. Rev. 917 (1926). Also consulted were Elliot, De-
20a
Appendix A
closed no discussion or reference to the “previously
ascertained” clause. Our frustration is shared by assidu-
ous researchers into the history and scope of the
Amendment.’
The substance of current knowledge regarding this
part of the Sixth Amendment was discussed in Williams
v. Florida, supra, and in our prior opinion in this ase.
We know that one of the Articles of Amendment adopted
by the House of Representatives on August 24, 1789 and
sent to the Senate provided that “The trials of all crimes
. . Shall be by an impartial jury of freeholders of the
vicinage, with the requisite of unanimity for conviction,
the right of challenge, and other accustomed requi-
sites. . . ."° This provision was unacceptable to the
Senate, and was deleted when the proposed Amend-
ments were sent back for concurrence of the House on
September 10, 1789. The House refused to agree and a
Conference Committee of the two chambers was ap-
pointed. Its deliberations are not known, but it emerged
with the language which was to become the Sixth
NOTE 6 — (Continued)
bates on the Adoption of the Federal Constitution (1901); A. Hamil-
ton, The Federalist (1873); 1 W. Holdsworth, A History of English
Law 298-350 (1922); 4 W. Blackstone, Commentaries on the Laws
of England 350-51 (Cooley ed. 1899); F. Thorpe, The Federal and
State Constitutions, Colonial Charters, and Other Organic Laws
(1909).
7. Heller wrote that: “Any attempt to trace the exact develop-
ment of the finished product, to ascribe with definitive certainty the
authorship of specific words, or to place the responsibility for its ulti-
mate form and arrangement, continues to the present to be frus-
trated and hampered by the compete lack of information on the pro-
ceedings in the Senate.” F. Heller, supra note 6, at 33.
Frankfurter and Corcoran also stated: “We must largely guess
whether considerations of substance or style, deep meaning or mi-
nor factors of draftsmanship, determined the form of words which
finally appeared in Article III and the Sixth Amendment and gov-
erned their relation to each other.” Frankfurter and Corcoran, supra
note 6, at 968-9.
8. 1 Annals of Cong. 760 (Gales & Seaton ed. 1834).
7%
2la
Appendix A
Amendment insuring “the right to a speedy and public
trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which
district shall have been previously ascertained by
ars
We do not know at whose suggestion or insistence
the “previously ascertained by law” clause was inserted,
whether it was in any way a substitute for the language
“and other accustomed requisites” (of a trial by jury) in
the House proposal authored by Madison, or what it was
intended to accomplish. It is of interest that there was no
such clause in the jury trial provisions of Virginia, Penn-
sylvania or Maryland, which are considered to have been
the models used by Madison when he drafted the pro-
posed amendment.” The controversy which swirled
around the jury trial amendment focused primarily on
the vicinage requirement, the camps dividing into those
who believed the Constitution should insure that the ac-
cused was entitled to be tried by a jury of the county,
while others preferred the much more vague “vicinage”
_ language.
Madison, whose writings are the primary source of
our information on the views of the conferees, wrote in a
September 23, 1789, letter that:
[The Senate] are. . . inflexible in opposing a defi-
nition of the locality of Juries. The vicinage they
contend is either too vague or too strict a term; too
vague if depending on limits to be fixed by the pleas-
ure of the law, too strict if limited to the county. ro it
9. See Frankfurter and Corcoran, supra note 6, at 964, 974
and notes 259-61.
10. Warren inexplicably uses the word “country” instead of
“county” at this point of Madison's letter, Warren, supra note 6 at
129. and Warren's language is repeated in our prior opinion, 543
F.2d at 476. The Supreme Court, in its quotation of the Madison
letter. uses “county.” Williams v. Florida, 399 U.S. at 95. Viewed in
the context of the debate at that time, “county” would appear to be
22a
Appendix A
was proposed to insert after the word Juries, “with
the accustomed requisites,” leaving the definition to
be construed according to the judgment of profes-
sional men. Even this could not be obtained. . .
The Senate suppose, also, that the provision for vici-
nage in the. Judiciary bill will sufficiently quiet the
fears which called for an amendment on this point?!
(emphasis added).
The ensuing compromise required merely that the trial
be of a jury of the state and judicial district, which dis-
trict was to be established by Congress.
The other relevant historical factor which must be
taken into account was the obvious concern of the fram-
ers of the Constitution over the threat of the King, in the
last days of the colonial experience, to transport colonists
accused of treason to trial in England. This would have
revived the statute of 35 Henry VII (1543) providing that
treason should be tried by commissioners “as shall be as-
signed by the King.” The Virginia Resolves, issued May
16, 1769, were a vigorous protest to this practice. One of
the “resolves” asserted that a person accused of any fel-
ony or crime committed within the Colony and
Dominion (Virginia) had a right to be tried before the
NOTE 10 — (Continued)
the historically consistent word, since Madison's letter a week earli-
er referred to the practice in some states of picking juries from the
state at large contrasted to the practice in other states of picking ju-
ries from the county alone. Letter from James Madison to Edmund
Pendleton, Sept. 14, 1789, in 1 Letters and Other Writings of James
Madison 491 (Lippincott ed. 1865). In any event, the quotation
above is the form in which the letter appears in the two compilations
of the Writings of James Madison, see note 11 infra. However, we
note that the Bill of Rights of the Pennsylvania 1776 Constitution
provided for the right to “an impartial jury of the country” (empha-
sis added).
11. 1 Letters and Other Writings of James Madison 493
(Lippincott ed. 1865); 5 The Writings of James Madison 424 n.1 (G.
Hunt ed. 1904). |
23a
Appendix A
King’s courts, “within the said Colony, according to the
fixed and known Course of Proceeding,” and that send-
ing the accused to be tried to “Places beyond the Sea
. is highly derogatory of the Rights of British sub-
jects; as thereby the inestimable Privilege of being tried
by a Jury from the Vicinage, as well as the Liberty of
summoning and producing Witnesses on such Trial, will
be taken away from the Party accused.”!'* The Virginia’
Resolves were promptly approved by the assemblies of
the other American colonies.'* The English Parliamen-
tary minority recognized that such arbitrary treatment
as being dragged from one’s native land, to exchange
“Imprisonment in his own Country, for Fetters Amongst
Strangers” might well lead to war,'* as indeed it did.
One of the King’s “injuries and usurpations” cited in the
Declaration of Independence was “For transporting us
beyond Seas to be tried for pretended offenses.”
From the meager evidence before us, we must spec-
ulate about the meaning of the “previously ascertained
by law” clause of the Sixth Amendment as it applies to
federal cases, before we can reach the issue of whether it
applies to state cases. It would appear, and we acknowl-
edge again the uncertain road upon which we tread, that
before the compromise vicinage provision emerged in
1789 from the joint Committee providing only that crim-
inal trials must be held within the state and district
where the offense was committed, reluctant conferees
needed some assurance that the districts would not be
readjusted arbitrarily to meet the circumstances of a par-
ticular case. If the vicinage provision had been restricted
to juries drawn from the county of the offense, as some
desired, the states, which fix the boundaries of their own
county lines, would have had the power to determine the
geographic areas from which federal juries must be
12. Quoted in Blume, supra note 6, at 64.
13. Id. at 65.
14. See id.
24a
A ppendix A
drawn. '® However, with the vicinage provision limited to
districts, which only Congress had the power to fix, the
conferees may have believed additional protection was
needed to prevent Congress from arrogating to itself the
very power which the King had adopted and which was
the subject of the protest of the Virginia Resolves. Thus,
the “previously ascertained by law” clause was designed
as a check on Congress, which, although free to alter
and revise the size of judicial districts to meet the needs
and circumstances of changing times, cannot constitute
or reconstitute a district to affect a criminal case after
commission of the alleged offense.
This is consistent with the purpose of the Sixth
Amendment summarized by the first Justice Harlan in
Schick v. United States, 195 U.S. 65, 78 (1904) (dissent-
ing opinion), as follows:
Those who opposed the acceptance of the Constitu-
tion said, among other things, that the words of that
instrument, strictly construed, (Art. 3, §2) admitted
of a secret trial, or of one that might be indefinitely
postponed to suit the purposes of the Government,
or of one taking place in a state or district other
than that in which the crime was committed. The
framers of the Constitution disclaimed any such evil
purposes; but in order to meet the objections of its
15. The Pennsylvania Supreme Court, in interpreting its own
Constitution, has pointed out the distinction between the “vici-
nage”, a vague designation, and “county” which is a “definitely des-
ignated territory.” Commonwealth v. Collins. 268 Pa. 295. 300. 110
A. 738. 739 (1920). It also noted the state's power to revise county
boundary lines unless prescribed by a constitutional provision: “By
the common law all offenses were inquired into and tried in the
county where they were committed, and the visne or neighborhood
from which a sheriff was required to return a panel of jurors was
interpreted as meaning county. 4 Blackstone. 350. But Parliament
could have changed or made exceptions to this common-law rule.
and the Legislatures of the different states can do likewise. in the
absence of constitutional limitations upon them.” Id.
25a
Appendix A
opponents, and to remove all possible ground of un-
easiness on the subject, the Sixth Amendment was
adopted, in which the essential features of the trial
required by Section 2 of Article 3 are set forth (em-
phasis added).
Such judicial interpretation of the “previously
ascertained by law” clause as exists has been made in
the context of the effect of this clause on trials following
establishment of a new district or readjustment of the
boundaries of a previously established district. Original-
ly, whenever Congress created a new district in a state or
transferred certain counties from one district or division
to another district or division, it made special provision
for the ‘continuance of the jurisdiction of offenses com-
mitted prior thereto. See Mizell v. Beard, 25 F.2d 324,
325 (N.D. Okla. 1928). In 1911, Congress enacted such
a provision into general law, Act of March 3, 1911, c.231
§59, 36 Stat. 1103, currently in 18 U.S.C. §3240 (1976),
providing that whenever any new district or division is
established, or any county or tertTitory is transferred from
one district or division to another district or division,
prosecutions for offenses committed within such dis-
trict, division, county, or territory prior to such transfer,
shall be commenced and proceeded with the same as if
such new district or division had not been created, or
such county or territory had not been transferred, unless
the court, upon the application of the defendant, shall
order the case to be removed to the new district or divi-
sion for trial.
This provision was construed in Lewis v. United
States, 279 U.S. 63 (1929), where the petitioners chal-
lenged their indictment and trial as violating the “pre-
viously ascertained by law” clause of the Sixth Amend-
ment. Petitioners were convicted for crimes committed
in 1923 in Tulsa County. Tulsa County was part of the
Eastern District of Oklahoma until 1925, when it, along
with nine other Oklahoma counties, was transferred to
26a
Appendix A
the newly established Northern District of Oklahoma.
Before petitioners’ indictment and trial in the Eastern
District of Oklahoma, the court removed from the jurv
box from which the grand and petit jurors were drawn
the names of all persons from the ten counties that had
been transferred to the Northern District. Although the
jury box thus contained no jurors from Tulsa County,
- the Supreme Court concluded that petitioners were both
indicted and tried in the court for the Eastern District
sitting as the court for the entire original district, includ-
ing the counties that had been transferred to the North-
ern District after the offenses were committed. “And, as
this district had been ascertained by §101 of the Judicial
Code before the offenses had been committed, there was
no violation of the provision of the Sixth Amendment
granting an accused person the right to a trial by a ‘jury
of the State and district wherein the crime shall have
been committed, which district shall have been pre-
viously ascertained by law.’ Id. at 71-72.'°
On the other hand, when an offense was not com-
mitted within a state but in territory assigned to a district
for judicial purposes, the “previously ascertained” provi-
sion was held to be inapplicable and Congress could,
pursuant to Article III, Section 2, clause 3, fix another
district for trial of such offenses after they were commit-
ted. Cook v. United States, 138 U.S. 157, 181-82 (1891);
United States v. Dawson, 56 U.S. 468, 15 How. 467
(1853 Term).
16. A decision that the constitutional provision was applicable
only to pending criminal actions and not to those where the offense
was committed before the rearrangement of districts. Quinlan v.
United States, 22 F.2d 95 (5th Cir. 1927). cert. denied, 276 U.S.
627 (1928), has since been repudiated by the court which rendered
it. Haves v. United States, 407 F.2d 189 (5th Cir. ), cert. denied. 395
U.S. 972 (1969). See also Mizell v. Beard. 25 F.2d 324 (N.D. Okla.
1928); United States v. Hackett. 29 F. 848. 849 (C.C.N.D. Cal.
1887); United States v. Maxon, 26 Fed. Cas. 1220. No. 15748
(C.C.E.D. N.Y. 1866).
27a
Appendix A
From the sketchy history and the available prece-
dent, it can be fairly inferred that the “previously
ascertained by law” clause was tied to the English prac-
tice of removing prisoners for trial to England or else-
where. As argued by appellant’s counsel to the Supreme
Court in United States v. Dawson, “it would be intoler-
able if a power existed by which, if a man committed an
offence in Oregon or Florida, Congress might, in order to
strike him down with perfect certainty, attach the par-
ticular place where he committed the offence to the Dis-
trict of Maine, so as to carry him to Portland for trial; re-
taining, of course, the power to sever again from the
district the country so attached, so soon as the political
or other offender should be immolated, and the ends of
public or party vengeance attained.” Id., 56 U.S. at
472-73, 15 How. 473-74.
Viewed in this light, there would be no reason to ap-
ply such a clause to the states, who have no role in estab-
lishing or redistricting of federal judicial districts. Al-
though the geographic distances within some states may
be large, they are not comparable to the stretch from the
colonies to England, nor the potential distance from one
judicial district to a noncontiguous one in the United
‘ States. Furthermore, the language of the clause is strict-
ly applicable only to “districts,” and we have previously
held that “districts” referred to in the Sixth Amendment
were the federal judicial districts established elsewhere
in the Judiciary Act. 543 F.2d at 477 n.59.
Finally, if we use'the same analytic process used by
the Supreme Court when determining whether a right is
an essential and fundamental right for the kind of fair
trial which is this country’s constitutional goal, Pointer
v. Texas, 380 U.S. at 405, we discern substantial
differences between the right to have one’s jury drawn
from a previously ascertained geographic area and the
rights which have been held applicable to state trials.
For example, using the factors referred to in Klopfer v.
28a
Appendix A
North Carolina, 386 U.S. at 223, we note that the right
to a jury from a place “previously ascertained by law”
was not referred to in the Magna Carta.'” It is not a right
which has been considered of such importance that it
has been widely adopted by all of the states. Of the fifty
states, only three have any provision in their constitu-
tions comparable to this Sixth Amendment clause.'® Of
the original states, .none provided for previously
ascertained districts or counties in their constitutions
when providing for the constitutional right to jury trial.'®
It is therefore difficult to classify this right as among
those which are “of the very essence of a scheme of or-
dered liberty.” Palko v. Connecticut, 302 U.S. 319, 325
(1937).
Thus, we conclude that the provision of the Sixth
Amendment providing for the right to have a jury from a
district “previously ascertained by law” applies only to
17. The closest parallel in the Magna Carta was Clause 17.
“The Common pleas shall not follow our court but shall be held in
some certain place.” Even if this could be translated into require-
ment of previous ascertainment, it was inapplicable to criminal
cases since the Court of Common Pleas had jurisdiction confined to
civil matters. 1 Holdsworth, supra note 6, at 195-203.
18. See, Hawaii Const. Art. I, §14; Minn. Const. Art. I, §6; Wis.
Const. Art. I, §7.
19. See, F. Thorpe, The Federal and State Constitutions, Colo-
nial Charters, and Other Organic Laws (1909) (hereinafter cited as
Thorpe]. The original constitutional provisions can be found as fol-
lows: Conn. Const. of 1818, Art. I, §9 in 1 Thorpe 538; Del. Const.
of 1792, Art. I, §4 in 1 Thorpe 569; Ga. Const. of 1777, Art. XXXIX
in 2 Thorpe 783; Md. Const. of 1776, Declaration of Rights, Art.
XVIII in 3 Thorpe 1688; Mass. Const. of 1780, Part the First, Art. 13
in 3 Thorpe 1891; N.H. Const. of 1784, Art. I, §17 in 4 Thorpe
2455-56; N.J. Const of 1776, Art. XXII in 5 Thorpe 2598; N.Y.
Const. of 1777, Art. XLI in 5 Thorpe 2637; N.C. Const. of 1776,
Declaration of Rights, §9 in 5 Thorpe 2787; Pa. Const. of 1776, Dec-
laration of Rights, §9 in 5 Thorpe 3083; R.I. Const. of 1842, Art. I,
§10 in 5 Thorpe 3223; S.C. Const. of 1778, Art. XLI in 6 Thorpe
3257; Va. Const. of 1776, Declaration of Rights, }8 in 7 Thorpe
3813.
29a
Appendix A
federal criminal trials and not to state criminal trials.
Our holding, of course, would not leave criminal defend-
ants totally without recourse were their state trials con-
ducted under procedures which violate fundamental
principles of liberty and justice. Removal of a defendant
from his or her home county where the offense was com-
mitted, without good reason, to be tried before a jury
drawn from a far distance from home, without having
prior notice of the place of trial for the offense previously
ascertained by law might constitute such an arbitrary
act that it violates due process as protected by the Four-
teenth Amendment. This was not the ground on which
Zicarelli based his claim. While we share our dissenting
colleague’s concern with a procedure which appears to
permit assignment of the place of trial at the unfettered
discretion of the prosecuting authority or assignment
judge, we see nothing in the history or the language of
the “previously ascertained by law” clause of the Sixth
Amendment to compel or justify extending its scope be-
yond the federal judicial district to which it is explicitly
tied. We hold that the “previously ascertained by law”
clause of the Sixth Amendment is not applicable to the
states, and therefore does not provide the standard by
which to gauge the constitutionality of New Jersey's ac-
tion in transferring Zicarelli’s trial to Burlington County
to be tried before a jury of that county.
For the foregoing reasons, we will affirm the judg-
ment of the district court denying the requested writ of
habeas corpus.
30a
Appendix A
GIBBONS, Circuit Judge, dissenting:
When this long drawn out case was before the court
en banc it was my view that Mr. Zicarelli’s fair cross sec-
tion claim had already been presented to and properly re-
jected by the New Jersey Courts. 543 F.2d 466, 489 (3d
Cir. 1976). That claim is before us again, in a posture es-
sentially no different, except for age, than when we con-
sidered it four years ago. Essentially for the reasons set
forth in Part III of Judge Sloviter’s opinion, I adhere to
my previous view on the cross section claim. There is no
geographic component in the fair cross section require-
ment. The state venue requirement incorporated in Arti-
cle III, section 2, clause 3 of the Constitution is not ap-
plicable to the states, even by analogy, since unlike the
federal government, states are limited in the exercise of
their judicial power to a single geographic area. The fair
cross section requirement is related to the exclusion of
classes, and for purposes of class exclusion geography
will usually be irrelevant. That is not always the case. It
is conceivable that residential patterns may be such that
manipulation of the vicinage will result in exclusion of
classes. See, e.g., Alvarado v. State, 486 P.2d 891 (Sup.
Ct. Alaska 1971). Cf. People v. Jones, 108 Cal. Rptr. 345,
510 P. 2d 705 (1973). But in this case the record does
not support the inference that moving the vicinage from
Hudson County to Burlington County had either the
purpose or the effect of excluding from the jury panel
from which the trial jury was selected any group or class
which has been recognized by federal law for purposes
of the fair cross section rule. The demographic
differences which have been shown are, as Judge
Sloviter points out, insubstantial.
Mr. Zicarelli’s claim that there has been a violation
of the Sixth Amendment requirement that trial be in a
district “previously ascertained by law” was also present-
ed to us in the prior appeal, but was not considered be-
cause it had not been presented to the New Jersey
3la
Appendix A
Courts. It has now been considered by those courts and
rejected. The majority also rejects it. | dissent from that
rejection.
No purpose would be served by a repetition of the
scant historical materials bearing upon the adoption of
the “previously ascertained by law” requirement. Judge
Sloviter has made reference to all of which I am aware.
But I part company from the majority in the use to
which that material has been put.
One of the grievances which the colonies adopted
against King George was the practice of transporting co-
lonials beyond the seas for trial.' When those colonies
became states, any purported authority of a superior sov-
ereign to remove persons from within their geographic
limits came to an end. In the Articles of Confederation
the now independent states carefully preserved to them-
selves their monopoly on sanctioning individuals within
their own geographic limits. See Art. II, IX, Articles of
Confederation. This treaty model of a federal union
proved unworkable, and the 1787 Constitution restored
some features of the empire system which the Articles of
Confederation had supplanted. The chief added feature
was the partial surrender in Article III to a super sover-
eignty of the monopoly on sanctioning which the colo-
nies had wrested from the empire. But in making that
surrender the people of the states incorporated in Article
III several limitations upon the sanctioning power of the
new federal government. Some of those limitations,
such as the definition of treason in Art. III, section 3,
were carried forward from ancient British statutes which
had by then come to be regarded as a part of the British
Constitution. The same may be said for the guarantee in
Article III, Section 2, Clause 3, of jury trial in criminal
cases. The additional guarantee that “such Trial shall be
held in the State where the said Crimes shall have been
1. See Declaration of Independence, in H.S. Commager, ed.
Documents of American History 101 (1940).
32a
Appendix A
committed” was, I believe, a reflection of the old griev-
ance against the empire, that the superior sovereignty
could and did transport colonials out of their home colo-
nies for trial abroad. The new federal government was
prohibited trom doing so. I do not believe the clause has
anvthing to do with the composition of the jury, except
to the extent that placing the trial in the geographic area
of a state determined that composition.
When the 1787 Constitution was sent to the people
of the states for ratification it was not at all clear that
there would be lower federal courts of original jurisdic-
tion. Had the first Congress opted for the exercise of the
judicial power of the United States solely by means of
appeal, the place of trial provision in Article III, section
2, clause 3 would have been a redundancy. But when it
became clear that Congress would need federal courts of
original jurisdiction, if for no other reason than to en-
force the revenue laws, new problems arose. Article III,
section 1 gave Congress power to ordain and establish
inferior courts, and presumably to define their geograph-
ic jurisdiction. In exercising that power Congress obvi-
ously could not violate the prohibition in Article III, sec-
tion 2, clause 3 against removing a defendant for trial
from the geographic area of the state in which the crime
occurred. If there were to be multi-state districts, for ex-
ample, the trial still would have to take place in the state
where the crime occurred. But Congress could and did
create more than one district within the territory of a sin-
gle state.* That allocation posed three issues. One was
the jury vicinage issue, which Judge Sloviter discusses
in Part IV of the majority opinion. The second was the
geographic issue of transporting defendants to distant
districts, which was a refinement of the problem ad-
dressed in Article III, section 2, clause 3. The third.
which the majority has chosen to disregard, was the
2. The first judiciary act established two districts each in Mas-
sachusetts and Virginia, Act of Sept. 24. 1789 §2. | Stat. 73.
33a
Appendix A
problem of Congress manipulating the boundaries of
-districts after the events constituting the alleged offense
had already transpired.
I agree with the majority that such historical evi-
dence as we have been able to find supports the conclu-
sion that the Sixth Amendment, as finally adopted, did
not incorporate a geographic vicinage requirement. The
amendment went no further than to refine the geo-
graphic rule already found in Article III, section 2,
clause 3 by prohibiting the federal government from
transporting a defendant for trial outside a district within
a state if there was more than one such district. The ma-
jority reads the place of trial provision in the Sixth
Amendment in the same manner. But the majority dis-
cussion proceeds on what I believe to be an erroneous
assumption that the place of trial provisions in the Sixth
Amendment and in Article III are addressed only to jury
selection.* Much more was involved in the colonial
grievance against transport for trial, including ability to
raise bail among friends, availability of witnesses, access
to counsel, and proximity of friends and relatives. Even
the very psychological pressure of incarceration while
awaiting trial at a place far from home tended to operate
in favor of the power of the sovereign against the individ-
ual, and to tilt the balance against an outcome favorable
to a defendant. These concerns, probably more than
concerns of jury vicinage, produced the initial Article III
geographic limitation and the refined limitation in the
Sixth Amendment.
3. The Sixth Amendment as James Madison proposed it, and
as debated in the House of Representatives, guaranteed a speedy
trial, confrontation, compulsory process, and counsel, but made no
reference to jury trial. A separate amendment, which Madison con-
ceived outside the Bill of Rights, would have replaced Art. III, §2, cl.
3 with the jury vicinage language to which the majority opinion re-
fers. See 1 Annals of Cong. 435.36 (Gales & Seaton ed. 1834).
34a
Appendix A
The “previously ascertained by law” clause in the
Sixth Amendment, however, introduces an entirely new
subject matter. Article III, section 2, clause 3 by itself
would prevent removal for trial across state lines. The
language in the Sixth Amendment “State and district
where the crime shall have been committed”, standing
alone, makes a temporal reference. The state and district
is a geographic area existing when the offense is com-
mitted. The additional language “which district shall
have been previously ascertained by law” must, I think,
have an additional, non-geographic, anti-manipulative
purpose.*
One manipulative purpose against whicl, the Sixth
Amendment guards might be an attempt by the federal
government, after events allegedly criminal had taken
place, to erect a new district within a former state and
district, and to appoint a judge believed to be more sym-
pathetic to the current administration's viewpoint. An-
other might be the exclusion of rural in favor of urban
4. Such information as can be gleaned concerning the motiva-
tion for the Sixth Amendment's “previously ascertained by law”
clause supports the assertion of an underlving purpose unrelated to
jury venue or geography. The House debates added to Madison's
proposed speedy trial amendment a requirement that trial be held in
the state where the crime was committed. 1 Annals of Cong. 756
(Gales & Seaton ed. 1834). The Senate left intact the House version
of the speedy trial amendment, but virtually eliminated the jurv
venue amendment. In a compromise reached in a conference com-
mittee, the Senate acceded to inclusion of a jurv venue clause. and
the House agreed to addition of the previously ascertained by law
clause, J. Goebel, History of the Supreme Court of the United
States: Antecedents and Beginnings to 1801 (vol. 1, Oliver Wendell
Holmes Devise History) 449, 455 (1971). The preexistence of a
geographical limitation, and the Senate's hostility to a jury venue
provision suggest the previously ascertained by law clause concerns
more than the provenance of jurors or the location of the crime.
See also, United States v. Wilson, 28 Fed. Cas. 699, 713 (E.D.
Pa. 1830) (previously ascertained by law clause relates to court's ju-
risdiction; no mention of jurv venue).
35a
Appendix A
jurors, who might be thought to have different political
outlooks. The early history of the Article III courts sug-
gests that such purposes were thought by many to be
within the realm of possibility at least. The previously
ascertained by law clause should be read, I believe, as
adding to the geographic clauses of Article III and the
Sixth Amendment a prohibition against any ex post facto
manipulation of the district of trial by the government,
for whatever reason.° Such an absolute prohibition
against after the fact manipulation of the district of trial
has the merit of avoiding the necessity for making any
showing that the government sought or obtained any ad-
vantage by virtue of the change. It is a merit because in
- many cases the motive for a manipulation of the place of
trial will be undiscoverable.
If I am right that the previously ascertained by law
clause in the Sixth Amendment has an anti-
manipulative purpose entirely separate from and addi-
tional to the place of trial provisions of Article III and the
Sixth Amendment, the case against applying the clause
and that purpose to the states is singularly
unimpressive. As the majority quite fairly acknowledges,
,removal of the defendant to a new place of trial not pre-
viously ascertained by law without disclosed good rea-
sons, without notice and an opportunity to be heard, has
serious due process resonances. Here a technical
anti-manipulative provision of the Constitution provides
a ready due process standard. No reasons of policy have
been offered in the majority opinion or in the brief for
the State of New Jersey suggesting why that state or any
other should have the power to manipulate the place of
trial, without even disclosing reasons for that manipula-
tion. Whatever the reasons for the exercise of that power
5. Cf. Lewis v. United States, 279 U.S. 63, 70-71 (1929)
(rearrangement of counties among two federal districts does not vio-
late defendant's Sixth Amendment rights because territorial juris-
diction was not changed for the prosecution of past offenses).
36a
Appendix A
were, they certainly were perceived by the prosecutor to
be beneficial to New Jersey, not to Mr. Zicarelli. The
state may have feared a Hudson County jury would have
been unfairly predisposed to Mr. Zicarelli; the state's
concern has no bearing on the Sixth Amendment in-
quiry, however. The fundamental point must be made
that while the Sixth Amendment protects criminal de-
fendants’ rights to a fair trial, the Constitution bestows
no fair trial guarantees on the government. The Sixth
Amendment is a limitation on the government's
prosecutorial powers. Hence criminal defendants may
assert fair cross section claims, or require removal of the
trial to another county or district. Nothing in the Consti-
tution endows the government with reciprocal benefits.
Prior to 1868 the assertion of the power to manipulate
the place of trial was only a matter of local concern. But
since ratification of the Fourteenth Amendment I see no
reason why the national policy reflected in the previous-
ly ascertained by law clause should not apply.
I would reverse the judgment of the district court
and remand with directions to issue the writ of habeas
corpus on the ground that the ex parte after the fact
change in the place of trial violated the anti-
manipulative policy of the Sixth Amendment.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
37a
APPENDIX B — JUDGMENT OF THE UNITED STATES
COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1722
JOSEPH ZICARELLI,
Appellant
VS.
Christopher DIETZ, Chairman, New Jersey Parole Board and
Sally G. CARROLL, Associate Member, New Jersey Parole
Board
(D.C. Civil No. 78-0740)
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
Present: GIBBONS, HIGGINBOTHAM and SLOVITER,
Circuit Judges
This cause came on to be heard on the record from the
United States District Court for the District of New Jersey and
was argued by counsel on November 14, 1979.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said District
Court, filed April 12, 1979, be, and the same is hereby affirmed.
Costs taxed against appellant.
38a
Appendix B
ATTEST:
s/ Sally Mrvos
Clerk
September 9, 1980
Certified as a true copy and issued in lieu of a formal mandate
on October 7, 1980.
Test: SALLY MRVOS
Clerk, United States Court of Appeals
for the Third Circuit
39a
APPENDIX C — ORDER OF THE UNITED STATES
COURT OF APPEALS DENYING PETITION FOR
REHEARING
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-1722
JOSEPH ZICARELLI,
Appellant
v.
CHRISTOPHER DIETZ, etc., et al.
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, ADAMS,
GIBBONS, ROSFNN, HUNTER, WEIS, GARTH,
HIGGINBOTHAM and SLOVITER, Circuit Judges
The petition for rehearing filed by Appellant, Joseph
Zicarelli, in the above entitled case having been submitted to the
judges who participated in the decision of this court and to all
the other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of the
circuit in regular active service not having voted for rehearing by
the court in banc, the petition for rehearing is denied.
_ Judge Gibbons would grant rehearing.
40a
Appendix C
By the Court,
s/ Sloviter
Judge
Dated: September 29, 1980
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