Petition — Maskeny v. United States

Supreme Court brief1980

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IN THE

SUPREME COURT OF THE UNITED STATES a

OCTOBER TERM, 1979

“79-1489

DONALD GEORGE MASKENY, LEE Durwoop HARVEY,

MARK TIMOTHY PERKINS, JOSEPH CHARLES BLACKBURN,

SR., CHARLES MICHAEL CROCKER, KENNETH MURCHISON,

SIDNEY LARRY PERNELL, BARRY WAYNE TOOMBS, AND

JULIAN THOMAS PERNELL,

Petitioners.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

FRANK MIKA DAVID KAIRYS

ARTHUR MEISNERE KAIRYS, RUDOVSKY & MAGUIGAN

MEISNERE & MIKA 1425 Walnut Street

1707 L Street, N.W., Suite 560 Philadelphia, Pennsylvania 19102

Washington, D.C. 20036 (215) 563-8312

(202) 296-0993

Attorneys for Petitioners

Attorney for Petitioners

Blackburn, Crocker, J. FLOWERS MARK

Murchison, Pernell, Toombs LOWE, MARK,

& Pernell MOFFITT, FORD & BARTON

216 South Patrick Street

CARLTON L. WEIDEMEYER Alexandria, Virginia 22314

WIGHTMAN, WEIDEMEYER, (703) 549-0446

JONES & TURNBULL

Attorney for Petitioner Harvey

319 South Garden Avenue

Clearwater, Florida 33516 JOHN KENNETH ZWERLING

(813) 442-3176 JONATHAN SHAPIRO

Attorney for Petitioner Maskeny ZWERLING & SHAPIRO, P.C.

108 North Columbus Street

Alexandria, Virginia 22314

(703) 836-5551

Attorneys for Petitioner Perkins

Washington, D.C. « THIEL PRESS + (202) 638-4521

(t)

TABLE OF CONTENTS

Page

es ee en tc cee mee ii

: OPINION OF THE COURT BELOW ................ 1

| ee i. 2

ES 2

CONSTITUTIONAL AND STATUTORY PROVISIONS ... 3

ee ice 5

REASONS FOR GRANTING THE PETITION.......... 8

I. The Decision of the Court of Appeals Denying

the Jury Composition Challenge Raises Important

! Federal Questions Concerning Which There Is a

Conflict in the Circuits and a Particular Need for

EE TLS a a 8

II. The Decision of the Court of Appeals Denying

Petitioners’ Rule 30 Claim Raises Important

Federal Questions Concerning Which There Is

a Conflict in the Circuits and a Particular Need

Ve 18

ee ce cee ae 23

APPENDICES:

A. United States v. Maskeny, et al., _. F.2d __,

No. 78-5596 (5th Cir. Jan. 4, 1980) (Opinion) ...... la

B. United States v. Maskeny, et al., No. 78-5596 (5th

Cir. Jan. 4, 1980) (Judgment)................. 23a

C. United States v. Maskeny, et al., No. 78-5596 (5th

Cir. Feb. 14, 1980) (denial of petitions for rehear-

ay Ge Deere Oe Bec) 6 we ek 25a

D. United States v. Maskeny, et al., No. 78-5596 (5th

Cir. Feb. 27, 1980) (Order staying mandate) ....... 27a

E. United States v. Blackburn, et al., Docket No. CR

478-33 (United States District Court, Southern

District of Georgia, Savannah Division) (Oct. 30,

PE ER 29a

(#)

Page

F. United States v. Blackburn, et al., Docket No. CR

478-33 (United States District Court, Southern

District of Georgia, Savannah Division) (Nov. 3,

PE EE a AS ha Stace le eae ali es ae eek 30a

TABLE OF AUTHORITIES

Cases:

Abdul v. Lane, 468 F. Supp. 33 (D.C.D. Tenn. 1978),

ay €, BOG FP 2a Tere (Oth Cir, 1978) 2... cess 15

Alexander v. Louisiana, 495 U.S. 625 (1972) ........... 12

Arlington Heights v. Metro. Housing Development Corp.,

es REC Se OP ar er 9

Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978) ....... 13, 15

Castaneda v. Partida, 430 U.S. 482 (1977) ............. 9

Davis v. Georgia, 429 U.S. 122 (1976) ......... ccc cees 17

Duren v. Missouri, 439 U.S. 357 (1979) ........ 9,10, 18, 19

Figueroa v. Commonwealth of Puerto Rico, 63 F. Supp.

See IE so Roa eS ooo ae ik atw'd ae w alae ide 18

Ford v. Hollowell, 385 F.Supp. 1392 (N.D. Miss. 1974) ....13

Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975) .......... 12

Hamling v. United States, 418 U.S. 87 (1974) ........... 19

Loveless v. United States, 260 F.2d 487 (D.C. Cir. 1958)... .21

Murrah v. Arkansas, 532 F.2d 105 (8th Cir. 1976) ........ 13

Quadra v. Superior Court, 403 F. Supp. 486 (N.D. Cal.

ee ea a a6 Uo ae WS Cees CR AA eh alee 13

Rose v. Mitchell, 99 S. Ct. 2993 (1979) ............. 9,12

Ross v. United States, 180 F.2d 160 (6th Cir. 1950)... . 20,21

Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978) ........... 13

Steinberg v. United States, 162 F.2d 120 (5th Cir.), cert.

eee A CROMER io bk es bese ces dae 20

Stephens v. Cox, 449 F.2d 657 (4th Cir. 1974) .......... 13

Swain v. Alabama, 380 U.S. 202 (1965)............... 12

(iii)

Page

Taylor v. Louisiana, 419 U.S. 522 (1975) .............. 9

United States v. Butler, No. 78-5777 (5th Cir. Feb. 14,

Ei Ares & cai Wa ON a ie a Nn a os ie 12

United States v. Carolene Products Co., 304 U.S. 144

SUNT Ls & Abbas bec stant Cee & as bass ole lma lh we 17

United States v. Auviene D’Agtignac, Docket No. CR

278-38 (United States District Court, Southern

District of Georgia, Brunswick Division), appeal

docketed, No. 79-5007 (5th Cir. Jan.2,1979) ........ 5

United States v. D’Argento, 373 F.2d 307 (7th Cir.),

cert. denied, 389 U.S. 833 (1967) .............. 21, 22

United States v. Gaines, 489 F.2d 690 (5th Cir. 1974)...... 22

United States v. Goff, 509 F.2d 825 (5th Cir.), cert.

GUE, TAS Ue WOT RATED a6 6 ce b 0 ka ake e 13, 15, 16

United States v. Hartman, 409 F.2d 198 (3d Cir. 1969)..... 21

United States v. Harvill, 501 F.2d 295 (9th Cir. 1974)...... 20

United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) ...... 16

United States v. Kleifgen, 557 F.2d 1293 (9th Cir. 1977)... .15

United States v. Kroncke, 459 F.2d 697 (8th Cir. 1972) ....20

United States v. Richard Harrison Lyons, Docket No.

CR 277-12 (United States District Court, Southern

District of Georgia, Brunswick Division), appeal dis-

missed, No. 78-5340 (5th Cir. Dec. 14,1979) ......... 5

United States v. Mendoza, 473 F.2d 697 (5th Cir.

Se ee eet CaS ee ae Pee Ee ci kee ee ere an 20

United States v. Newson, 531 F.2d 979 (10th Cir.

SPF ea 6s oo BOD Dee ae keNe Leh 21, 22

United States v. Pommerening, 500 F.2d 92 (10th Cir.),

cert. denied, 419 U.S. 1088 (1974), reh. denied, 420

PU WE UE Sa a a! Seay Sohn Van give 04%. @ 3.0 o's 21

United States v. Potter, 552 F.2d 901 (9th Cir. 1977) ...... 16

United States v. Scheffer, 463 F.2d 567 (5th Cir.), cert.

ey ee Oi OE COPED Sb Ged ee cacadduSaewces 21

(w)

United States v. Michael Thomas Smith, et al., Docket

No. CR 278-40 (United States District Court,

Southern District of Georgia, Brunswick Division),

aff'd sub nom, United States v. Butler, et al., No.

78-5777 (5th Cir. decided Feb. 14, 1980)............ 5

United States v. Test, 550 F.2d 577 (10th Cir. 1976) ...... 16

United States v. Whitley, 491 F.2d 1248 (8th Cir. 1974) ....13

Walker v. United States, 418 F.2d 1116 (D.C. Cir.

SOG) 6:5 0 6 sé tr ws eS OR Ras 2 AD Ee 21, 22

Washington v. Davis, 426 U.S. 229 (1976). ............. 9

Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970) ...20

Whitus v. Georgia, 385 U.S. 545 (1967) ............... 13

Wright v. United States, 339 F.2d 578 (9th Cir. 1964)... 19, 20

Constitutional and Statutory Provisions:

Amendment V, United States Constitution ............. 3

Amendment VI, United States Constitution............. 3

Rule 22(2), Rules of the Supreme Court............... 2

Rule 30, Federal Rules of Criminal Procedure ........ passim

Rule 52(a), Federal Rules of Criminal Procedure ......... 19

Tike 16, Untend Senete Gd; Os ee ksi. oi ee sas 5

Title 21, United States Code, §802(15).............. 4,7

Title 21, United States Code, §841(a) ................ 5

Title 21, United States Code, §846 ..............20.. 5

Title 21, United States Code, §852(a)................ 5

Title 21, United States Code, §960................2.. 5

Tithe 21, Uniend Qeutda Gating BOGS 0 sios 5. ee we 5

Title 28, United States Code, § 1861 ................. 3

Title 28, United States Code, § 1863(b)(2)........... 4,18

Title 28, United States Code, § eh. SRE ee eT 3

Page

Additional Authorities:

Finkelstein, The Application of Statistical Decision

Theory to Jury Discrimination Cases, 80 Harv. L. Rev.

Ne Ee AS oh a ne ob be ek Mee Ree he WR aces 12

Hearing before the Subcommittee on Improvements in

the Judiciary Machinery of the Committee on the

Judiciary on Bill Nos. $S.2072, S.2074, and §.2075,

U.S. Senate, 95th Cong., Ist Sess. (Sept. 26,1977) .. 10,18

Kairys, Kadane & Lehoczky, Jury Representativeness:

A Mandate for Multiple Source Lists, 65 Calif. L. Rev.

RO io ie one ba Sa 10, 12, 13, 15, 16, 17

Report of the Committee on the Operation of the Jury

System of the Judicial Conference of the United

Ee WG ay. Hae 9 BNE Oh be ee 10

J. VanDyke, Jury Selection Procedures (1977)......- 12, 18, 17

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

DONALD GEORGE MASKENY, LEE DuRwoop HARVEY,

MARK TIMOTHY PERKINS, JOSEPH CHARLES BLACKBURN,

| SR., CHARLES MICHAEL CROCKER, KENNETH MURCHISON,

| SIDNEY LARRY PERNELL, BARRY WAYNE TOOMBS, AND

JULIAN THOMAS PERNELL,

Petitioners.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

The Petitioners, Maskeny, Harvey, Perkins, Blackburn,

Crocker, Murchison, Perell, Toombs, and Pernell, by

their undersigned counsel, respectfully pray that a Writ

of Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

entered in this proceeding on January 4, 1980.

OPINION OF THE COURT BELOW

The Opinion of the Court of Appeals has not yet been

reported. A copy of the Opinion is appended to this

Petition as Appendix A.

JURISDICTION

The Judgment of the Court of Appeals affirming the

Judgment of the United States District Court was entered

on January 4, 1980. (Appendix B.) The Petitions for

Rehearing and Petition for Rehearing with Suggestion for

Rehearing En Banc were denied on February 14, 1980.

(Appendix C.) This Petition is timely filed pursuant to

Rule 22(2), Rules of the Supreme Court. The jurisdic-

tion of this Cow't is invoked pursuant to the provisions

of Title 28 United States Code § 1254(1).

QUESTIONS PRESENTED

A. IN JURY COMPOSITION CASES, SHOULD A STANDARD

BE ESTABLISHED THAi CLEARLY DIFFERENTIATES

BETWEEN ALLOWABLE AND IMPERMISSIBLE DEVIA-

TION FROM THE CROSS SECTIONAL IDEAL, AND, IF

SO, WHICH STANDARD SHOULD BE ADOPTED?

B. DID THE COURT OF APPEALS ERR BY ESTABLISHING

A 10% ABSOLUTE DISPARITY AS A MINIMUM REQUIRE-

MENT FOR A PRIMA FACIE CASE AND BY ADOPTING

THE “SUBSTANTIAL IMPACT RULE,” BOTH OF WHICH

HAVE THE EFFECT OF VALIDATING SERIOUS UNDER-

REPRESENTATIONS OF SMALL AND MEDIUM SIZED

MINORITIES?

II.

WHETHER THE FAILURE OF THE TRIAL COURT TO

COMPLY WITH RULE 30 CAN BE HARMLESS ERROR

WHEN PETITIONERS’ COUNSEL REASONABLY RELIED

UPON THE COURT’S ASSURANCE THAT A REQUESTED

JURY INSTRUCTION WOULD BE GIVEN AND COUNSEL

WERE, THEREBY, MATERIALLY MISLED IN MAKING

THEIR CLOSING ARGUMENT?

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Amendment V, Constitution of the United States:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, .. . nor be

deprived of life, liberty, or property, without due

process of law... .”

Amendment VI, Constitution of the United States:

“In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of

Counsel for his defense.”’

United States Code, Title 28, § 1861.

Juries; Declaration of Policy.

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 commu-

nity in the district or division wherein the court

convenes. It is further the policy of the United

States that all citizens shall have the opportunity

to be considered for service on grand and petit

juries in the district court of the United States,

and shall have an obligation to serve as jurors when

summoned for that purpose.

United States Code, Title 28, § 1867 (a).

Juries; Challenging Compliance with

Selection Procedures.

In criminal cases, . . . the defendant may move

to dismiss the indictment or stay the proceedings

against him on the ground of substantial failure to

comply with the provisions of this title in selecting

the grand or petit jury.

United States Code, Title 28, § 1863(b)(2).

Juries; Plan for Random Jury Selection.

Among other things, such plan shall—

specify whether the names of prospective

jurors shall be selected from the voter registration

lists or the lists of actual voters of the political

subdivisions within the district or division. The

plan shall prescribe some other source or sources of

names in addition to voter lists where necessary to

foster the policy and protect the rights secured by

sections 1861 and 1862 of this title....

United States Code, Title 18, Federal Rules

of Criminal Procedure, Rule 30.

Instructions.

At the close of the evidence or at such earlier

time during the trial as the court reasonably directs,

any party may file written requests that the court

instruct the jury on the law as set forth in the

requests. ... The court shall inform counsel of its

proposed action upon the requests prior to their

arguments to the jury, but the court shall instruct

the jury after the arguments are completed. . . .

United States Code, Title 21, § 802(15).

Definitions.

The term “marijuana” means all parts of the

plant Cannabis sativa L., whether growing or not;

the seeds thereof; the resin extracted from any part

of such plant; and every compound, manufacture,

salt, derivative, mixture, or preparation of such

plant, its seeds or resin. Such term does not include

the mature stalks of such plant, fiber produced from

such stalks, oil or cake made from the seeds of such

plant, any other compound, manufacture of such

mature stalks (except the resin extracted therefrom),

fiber, oil, or cake or the sterilized seed of such plant

which is incapable of germination.

STATEMENT OF THE CASE

Petitioners were convicted in a jury trial before the

United States District Court for the Southern District

of Georgia in June 1978, of offenses based upon the

importation and possession of marijuana in violation of

Title 21 United States Code §§ 841(a)(1), 846, 852(a),

960, 963 and Title 18 United States Code § 2.

Prior to the jury being sworn, Petitioners challenged

the jury panel as not representative. (Tr. 56.) Peti-

tioners, in the interest of judicial economy, timely

moved the court to incorporate into the record the

arguments and exhibits supporting the jury challenge

made in United States v. Richard Harrison Lyons,

Docket No. CR 277-12 (United States District Court for

the Southern District of Georgia, Brunswick Division).

The trial judge granted incorporation without objection

from the government and then overruled the Petitioners’

challenge. (Tr. 202-203, 393-394.)!

1 Petitioners’ grand and petit juries were both selected from the

1977 revision of the District’s jury wheels. In Lyons, only the

petit jury was selected from the 1977 wheel. The grand jury was

selected from the .373 wheel. Counsel discovered that challenges

to the 1977 jury wheels had been brought in United States v.

Auviene D‘Agtignac, Docket No. 278-38 (United States District

Court for the Southern District of Georgia, Brunswick Division),

appeal docketed, No. 79-5007 (5th Cir. Jan. 2, 1979), and United

States v. Michael Thomas Smith, et al., Docket No. CR 278-40

(United States District Court for the Southern District of Georgia,

Brunswick Division), aff’d sub nom. United States v. Butler, et al.,

No. 78-5777 (5th Cir. decided Feb. 14, 1980), and moved for

incorporation thereof in order that the correct demographic data

would be in the record as to Petitioners’ grand jury panel. The

trial judge granted Petitioners’ motion to incorporate, with the

The uncontested evidence in support of the jury

challenge showed, inter alia, that blacks constituted 29%

of the population and 20% of the qualified wheel from

which the grand jury was chosen, The Court of Appeals

ruled that this disparity was not large enough to establish

a prima facie case, The court held that an absolute

disparity of 10% is a minimum requirement for a prima

facie case and that the “impact” of the disparity was not

substantial in terms of the number of black people who

would not appear on an average grand jury panel,

At trial, the main defense was that there were several

species of marijuana, that the statute only proscribed one

of these, Cannabis sativa L, and that the government

had not met its burden of proving that the substance in

question was Cannabis sativa L, as opposed to one of

the other species. Evidence was presented to the jury

with the express approval of the trial judge, treating

the statutory definition of the Cannabis sativa L as a

question of fact.’ Petitioners’ Motion for Judgment

of Acquittal was argued based upon the government's

alleged failure to prove that the substance was in fact the

species of marijuana proscribed by the statute and upon

detailed arguments regarding the statutory definition of

marijuana.’ (Tr, 678-687.)

caveat, inter alia, that the records be appended to Petitioners’

record solely for informational purposes in the Fifth Circuit,

(Appendix E.) That these records were so utilized is evidenced by

the opinion of that court in Petitioners’ case,

2There were no relevancy objections either by the government

or the court to the numerous questions concerning the polytypic

nature of the genus Cannabis propounded by counsel to the

chemist testifying on behalf of the government. (Tr, 603-677.)

3At the hearing on Petitioners’ motion, the court was openly

advised by defense counsel of the Fifth Circuit's decision in United

States v. Gaines, 489 F.2d 690 (5th Cir, 1974), authority contrary

to Petitioners’ grounds for dismissal. (Tr. 681.)

The court denied Petitioners’ Motion for Judgment

of Acquittal, holding for the purposes of deciding the

motion that all species of Cannabis were proscribed by

the statute, (Tr. 685.) Contrary to this holding, the

court continued to treat the question as if it were a

factual matter to be considered by the jury.* Petitioners

called Dr. Dwight S, Fullerton as an expert witness. The

material portion of Dr, Fullerton’s testimony related

solely to the fact that there are a number of species of

cannabis and the differences between them, There were

no relevancy objections, (Tr, 721-749, 759-787.)

Counsel submitted three proposed jury instructions,

including an instruction consisting basically of the

statutory definition of marijuana found in Title 21

United States Code § 802(15),

At a bench conference (not found in the record),

counsel requested information concerning the court's

proposed action on the requested instructions, The judge

rejected only the two proposed instructions not relating

to the statutory definition of marijuana, (See Tr, 976.)

Based upon this ruling, counsel argued to the jury

that:

His Honor is going to instruct you further later in

this case that the law defines marijuana as all parts

of the plant Cannabis sativa L. And, he is going

‘In a subsequent colloquy with Petitioners’ counsel, the court

stated:

MR. MIKA: That doesn't mean that we can't still argue it

before the jury?

THE COURT: You mean as to whether this is marijuana?

Surely you can argue that. In fact, I'm going to charge that

unless the government proves beyond a reasonable doubt

that that is marijuana as defined in the statute that the

defendants will be acquitted, [Tr. 687.]

to say unless you find beyond a reasonable doubt

that the substance in question is marijuana as it is

defined in that definition then you must find the

defendants not guilty. [Tr. 891,]

The court, in fact, gave the proposed instruction as

requested, but went on to add:

I instruct you that under the law there is only one

species of the plant in question, that is to say,

marijuana, Marijuana as far as the law is concerned,

is not divided into species, [Tr. 960,]

Objection was accordingly made and exception taken

to the court's instruction, Judge Lawrence accepted the

objection as timely made, (Tr, 976-977.)

The jury found each of the Petitioners guilty, Each

Petitioner was sentenced to a period of incarceration and

posted an appeal bond,

An appeal was timely filed in the United States Court

of Appeals for the Fifth Circuit, The panel opinion was

entered on January 4, 1980, (Appendix A.) The Petition

for Rehearing with Suggestion for Rehearing En Bane

was denied on February 14, 1980. (Appendix C.)

REASONS FOR GRANTING

THE PETITION

THE DECISION OF THE COURT OF APPEALS DENY-

ING THE JURY COMPOSITION CHALLENGE RAISES

IMPORTANT FEDERAL QUESTIONS CONCERNING

WHICH THERE IS A CONFLICT IN THE CIRCUITS

AND A_ PARTICULAR NEED FOR’ UNIFORM

STANDARDS.

The court of appeals has adopted standards concerning

jury composition challenges that seriously undermine the

representativeness principle and conflict with decisions

of other courts of appeals, with earlier decisions of the

Fifth Circuit, and with the import of decisions of this

Court,

First, the court adopted the “absolute disparity”

standard as the measure of representativeness and held

that at least a 10% absolute disparity is necessary to

establish a prima facie case. Second, the court adopted

the “substantial impact rule,’ whereby even a very large

and unexplained underrepresentation is allowed if it

does not have a large impact in terms of the number of

persons in the underrepresented group who do not appear

on a regular panel,

Both of these standards have the effect of legitimizing

substantial underrepresentations of small and medium-

sized minorities (those below about one-third of the

population), Moreover, they deeply contradict the

compelling constitutional and policy basis for stringent

jury representativeness standards. Unlike claims of

underrepresentation in other institutions, jury underrep-

resentations not only harm the group underrepresented

but also affect the right of defendants to a fair trial and

undermine the legitimacy, integrity and impartiality

of the judicial system. Rose v. Mitchell, 99 S.Ct.

2993 (1979); Duren v. Missouri, 439 U.S. 357 (1979);

Castaneda v, Partida, 430 U.S. 482, 492-93 (1977);

Arlington Heights v, Metro. Housing Development Corp.,

429 U.S. 252, 266 n.13 (1977); Washington v. Davis,

426 U.S, 229, 241 (1976); Taylor v. Loutsiana, 419 U.S.

522 (1975),

This Court has not adopted a specific standard of

representativeness. There is considerable conflict and

confusion on this question in the lower courts, and the

lack of concrete standards has contributed to a marked

increase in the number of challenges to federal and state

jury systems.5 Particularly after Duren, where the Court

clearly established the fact of underrepresentation rather

than the intent of jury selection officials as the crucial

issue in Sixth Amendment challenges, it is vital that

courts, litigants and court administrators be provided

with standards that differentiate between allowable and

impermissible deviations from the cross-sectional ideal.

The following table presents a summary of the uncon-

tested evidence on the underrepresentation of black

people in the grand jury pool in this case.® The first

and second columns present the basic demographic

data, and the third through fifth columns present the

corresponding values for the most commonly referred

to standards of representativeness.’

5See Report of the Committee on the Operation of the Jury

System of the Judicial Conference of the United States 9 (April 7,

1976); Hearing before the Subcommittee on Improvements in the

Judicial Machinery of the Committee on the Judiciary on Bill Nos.

S. 2072, S. 2074 and S. 2075, U.S. Senate, 95th Cong., Ist Sess.

(September 26, 1977). The lack of concrete standards results in

more challenges because litigants are thereby encouraged to bring a

challenge whenever there is an underrepresentation. Establishment

of specific standards would mean that challenges would be futile

except where those standards have been violated.

The major underlying factor contributing to the increase in the

number of challenges is the increasing unrepresentativeness of voter

lists resulting from the steadily declining proportion of the popula-

tion that registers to vote. See Kairys, Kadane & Lehoczky, Jury

Representativeness: A Mandate for Multiple Source Lists, 65 Calif.

L. Rev. 776 (1977).

©The petit jury pool was also challenged as unrepresentative of

blacks. The disparity was not quite as large (blacks were 31% of

the population and 24% of the pool), so the discussion herein has

been limited to the grand jury challenge for simplicity. There were

also challenges not discussed here based on underrepresentations

of other groups.

7The data have been rounded off for simplicity.

Data Standards of Representativeness

Proportion of

Proportion of Qualified Absolute Comparative | Standard

Population (%) | Wheel (%) | Disparity (%) | Disparity (%) | Deviations

(1) (2) (3) (4) (5)

29 20 9 31 3.6

The standards of representativeness are defined as

follows:

(a) The absolute disparity is the difference between

the proportions of the population and the qualified

wheel that are in the underrepresented category. Here,

it is: 29% - 20% = 9%.

(b) An elementary mathematical statement of the

cross-sectional legal principle is that in a fair, cross-

sectional system, the probability of any eligible person

being selected is the same for every eligible person,

regardless of race, sex, age, or socioeconomic status. The

comparative disparity is the proportion by which the

probability of serving is reduced for people in the under-

represented category. It is calculated by dividing the

absolute disparity by the proportion of the population

that is in the underrepresented category. In this case, it

29% - 20% _ 319%.

29%

person, because he or she is black, has 31% less chance of

serving than the average eligible person.

is: This means that an eligible black

tativeness by calculating the probability of the disparity

occurring by chance. If that probability, expressed in

terms of standard deviations here, is very low, the

conclusion is drawn that the disparity is not the result

of chance but results from discrimination.®

On these standards, see generally Circuit Judge Walter

P. Gewin’s Appendix to the Opinion in Foster v. Sparks,

506 F.2d 805, 811-37 (5th Cir. 1975) (hereinafter

“Foster Appendix”); Kairys, Kadane & Lehoczky, Jury

Representativesness: A Mandate for Multiple Source

Lists, 65 Calif. L. Rev. 776, 788-99 (1977) (hereinafter

“Jury Representativeness”); J. VanDyke, Jury Selection

Procedures, at 95-98 (1977) (hereinafter “Jury Selection

Procedures”); Finkelstein, The Application of Statistical

Decision Theory to Jury Discrimination Cases, 80 Harv.

L. Rev. 338 (1966).

The court of appeals explicitly adopted the absolute

disparity standard and held that at least a 10% absolute

disparity is necessary to prove a prima facie case. This

is the first court of appeals decision that clearly and

exclusively adopts one of the standards.?

This Court has referred to and used all three standards

without specifically adopting any one of them. The

absolute disparity standard was relied on in Swain v.

Alabama, 380 U.S. 202 (1965), but the Court’s recent

decisions emphasize the statistical significance test. Rose

v. Mitchell, 99 S. Ct. 2993 (1979); Castaneda v. Partida,

430 U.S. 482 (1977); Alexander v. Loutsana, 405 U.S.

625, 629-30, 630 n.9 (1972) (statistical significance

8The probability corresponding to the underrepresentation of

blacks is 0.00016. This means that the odds against this under-

representation occurring by chance in a random selection from the

population are about 6,000 to 1.

9The court of appeals reaffirmed this holding in United States

v. Butler, 5th Cir., No. 78-5777 (Feb. 14, 1980), which is based

on the same evidentiary record as this case.

test and comparative disparity emphasized); Whitus v.

Georgia, 385 U.S. 545, 552 n.2 (1967).

There is considerable conflict and confusion on this

question in the decisions of the various circuits and in the

decisions of various panels within several of the circuits.

Most of the circuits have, like this Court, referred to and

used all three standards without specifically adonting

any one or explicitly addressing the issue. Prior to this

case, the Fifth Circuit had recently emphasized the

comparative disparity. Berry v. Cooper, 577 F.2d 322,

326 n.11 (5th Cir. 1978); United States v. Goff, 509

F.2d 825, 826-27 & n.3 (5th Cir.), cert. denied, 423

U.S. 857 (1975). The Eighth Circuit’s decisions are also

split. E.g., Ross v. Wyrick, 581 F.2d 172, 174 n.6

(8th Cir. 1978) (comparative and absolute disparities);

United States v. Whitley, 491 F.2d 1248 (8th Cir. 1974)

(comparative disparity); Murrah v. Arkansas, 532 F.2d

105 (8th Cir. 1976) (absolute disparity). The Fourth

Circuit has used the absolute disparity but emphasized

the comparative disparity, in one of its leading recent

cases, Stephens v. Cox, 449 F.2d 657 (4th Cir. 1974).

See also Quadra v. Superior Court, 403 F. Supp. 486

(N.D. Cal. 1975) (comparative disparity); Ford v.

Hollowell, 385 F.Supp. 1392 (N.D. Miss. 1974) (com-

parative disparity ).!°

Most recent commentators favor the comparative

disparity. See Jury Representativeness, at 793-99;

Foster Appendix, at 834-35; Jury Selection Procedures,

at 92-98. This preference is based on the following

considerations.

'0The Ninth Circuit has adopted the substantial impact rule as

an overall standard. See discussion infra.

First, the absolute disparity fails to account for the

range at which the disparity occurs. An absolute dis-

parity of 10% in a jurisdiction that is 50% black is quite

different from the same absolute disparity in a juris-

diction that is 11% black; in the latter jurisdiction, the

10% absolute disparity amounts to almost total exclusion.

Second, by definition, the maximum absolute dis-

parity there can be as to any minority is its proportion

of the population. Thus, there can never be an absolute

disparity of more than 10% as to any minority that is

10% or less of the population, and the standard adopted

by the court of appeals seems to validate even total

exclusion of such minorities. This problem was noted

by the court of appeals and left for resolution in a case

where the minority is less than 10% of the population.

However, neither the operation of the absolute disparity

standard in this range nor the basic fact that it also

validates serious underrepresentations of medium-size

minorities (from 10% up to about one-third of the

population) were addressed or evaluated concerning the

court’s decision to adopt the absolute disparity standard.

Third, the statistical significance test, while preferable

to the absolute disparity, involves complicated calcula-

tions and results that are difficult to visualize or evaluate,

and it is significantly affected by the choice of the

sample size used to determine the composition of the

jury pool.!!

11tn this case, 352 questionnaires were sampled to determine

the racial composition of the qualified wheel, and the probability

corresponding to the underrepresentation of blacks was 0.00016,

or odds of about 1 out of 6,000. If the sample size were doubled,

the probability corresponding to the same disparity would be

about 0.0000001, or odds of 1 out of_10 million. The statistical

significance test suffers from the contradiction that the more sure

we are of the composition of the pool (because of a larger sample

The comparative disparity standard avoids these

defects and is conceptually valid, easily calculated, and

intuitively used and understood. It focusses on and trans-

lates into quantitative terms the underlying constitutional

principle: that fairness to litigants, the right of all our

citizens to serve on juries, and the legitimacy, integrity

and impartiality of the judicial system require that no

cognizable group be substantially underrepresented.

. The court of appeals also adopted the “substantial

impact rule.” The “impact” is defined as the number

of people in the underrepresented group who, on the

average, will not appear on a panel of a given size due

to the disparity in representation. Here, on the average,

a grand jury panel should have been 29% black, but

was only 20% black due to the disparity. The “impact”

of the disparity was 9% of 23 (the panel size), or 2.1.

This means that on the average a panel of 23 will have

2.1 less black people than it should.

The court of appeals held that, even if an underrep-

resentation is significant; it does not establish a prima

facie case if it results in an insubstantial impact and

ruled that an impact of 2.1 people on a panel of 23 is

not substantial.

The Fifth Circuit had earlier adopted this rule in

United States v. Goff, supra, and then cast doubt on it

in Berry v. Cooper, 577 F.2d at 326 n.11. See also

Abdul v. Lane, 468 F. Supp. 33 (D.C.D. Tenn. 1978)

aff'd, 588 F.2d 1178 (6th Cir. 1978). Other courts of

appeals have adopted the rule. United States v. Kleifgen,

557 F.2d 1293, 1297 (9th Cir. 1977); United States v.

size), the more significant a given disparity appears. See Jury

Representativeness, at 794 n.101.

Potter, 552 F.2d 901, 906 (9th Cir. 1977); United States

v. Test, 550 F.2d 577 (10th Cir. 1976); United States v.

Jenkins, 496 F.2d 57, 64 (2d Cir. 1974). No other court

has found an impact as big as 2.1 on a panel of 23 to be

insubstantial.

Although the impact purports to shed some additional

light on the significance of a disparity, it is just another

way of expressing the absolute disparity. The impact is

the absolute disparity multiplied by the size of the panel.

And since it adds another variable, the panel size, it

confuses rather than enlightens. The smaller the panel

size, the smaller the impact of a given disparity.!? For

example, if the district court in this case were using

grand jury panels of 50, the impact of the same disparity

would be 4.5 rather than 2.1. The Jenkins court found

insubstantial an impact of one juror on a panel of 60,

while the Goff court found insubstantial an impact of

one juror ona panel of 23 (which is equivalent to almost

three on a panel of 60). Panel sizes vary greatly in our

various courts and are regularly modified according to

the expected requirements in particular cases.

The impact amounts to a rather confusing method of

restating the absolute disparity, suffers from the same

disadvantages as that standard, and adds a new and

arbitrary variable, the panel size. See Jury Representa-

tiveness, at 799-801.

The absolute disparity standard and the substantial

impact rule raise serious constitutional, statutory and

policy questions. The unavoidable effect of both is to

12Use of small panel sizes could, under the substantial impact

rule, serve to defeat almost all composition challenges, including

many that have been upheld by this Court.

validate discrimination against and serious underrepresen-

tation of small- and medium-sized minorities, those

“discrete and insular minorities” that the Court long ago

described as

“‘a special condition, which tends seriously to curtail

the operation of those political processes ordi-

narily to be relied upon to protect minorities,

and which may call for a correspondingly more

searching judicial inquiry.” United States v.

Carolene Products Co., 304 U.S. 144, 152 n.4

(1938).

None of the courts adopting these standards refers to

any authority for the proposition that the Constitution

only prohibits underrepresentations of large as opposed

to small- or medium-sized minorities, or that the exclu-

sion of even one minority juror is insignificant. See

Davis v. Georgia, 429 U.S. 122 (1976). See also Jury

Representativesness, at 800-801, 801 n.133; Jury

Selection Procedures, at 33. Nor has any court provided

a reasonable explanation for failing to even require the

government to explain serious underrepresentations of

small- and medium-sized minorities—a rather minor

burden on the government compared to this fundamental

right that benefits society and litigants as well as under-

represented minorities. In this case, eligible blacks have

over 30% less chance of being selected for jury service

than the average eligible person, and the government

should at least be required to explain the disparity.

In addition to the importance of the decision of the

court of appeals and the particular standards it adopted,

there is a real need for uniform standards established by

this Court. Court administrators attempting to abide

by constitutional and statutory mandates are presently

unable to determine whether their jury selection systems

ES LOT OEE Ce

are adequate or must be improved.!3 Litigants are unable

to determine whether a challenge has merit, which

tends to encourage a larger number of challenges than is

necessary. Courts, faced with these challenges, are

applying contradictory and often confused standards.'4

Particularly after Duren, uniform standards are needed.

THE DECISION OF THE COURT OF APPEALS

DENYING PETITIONERS’ RULE 30 CLAIM

RAISES IMPORTANT FEDERAL QUESTIONS

CONCERNING WHICH THERE IS A CONFLICT

IN THE CIRCUITS AND A PARTICULAR NEED

FOR UNIFORM STANDARDS.

Rule 30 has no express guidelines for its application.

The Rule instructs, however, that the trial court shall

13For example, 28 U.S.C. § 1863(b)(2) requires that voter lists

be supplemented if they are not representative of a cross section

of the community (which petitioner claimed in this case). The

exclusive use of voter lists has led to an increase in challenges as

voter lists have become less representative. Most courts have held

that nonvoters are not a cognizable group. However, the exclusive

use of voter lists has resulted in significant underrepresentations

of other, clearly cognizable groups, and Congress has recently

defeated a proposed amendment to § 1863(b)(%) that would have

created a presumption that voter lists are adequate. New methods

for easily and cheaply using multiple lists have been developed,

and many courts have adopted them. See authorities in note 1,

supra and the statement of the Justice Department opposing the

proposed amendment to § 1863(b)(2), Hearing before the Sub-

committee on Improvements in the Judicial Machinery of the

Committee on the Judiciary on Bill Nos. S. 2072, S. 2074 and

S. 2075, U.S. Senate, 95th Cong., Ist Sess. 100-101 (September

26, 1977). The lack of concrete standards of representativeness

leaves federal court administrators without guidance concerning

how large an underrepresentation must be to require supplemen-

tation. .

14For example, in Figueroa v. Commonwealth of Puerto Rico,

463 F.Supp. 1212, 1215 (D.P.R. 1979), decided after Duren, the

inform counsel of its proposed action upon requested

instructions prior to their arguments to the jury. This

Court has read into Rule 30 a standard which in “‘some

manner” examines the prejudice to the defendant in

deciding whether reversal is required, when there has

been strict compliance with the Rule. Hamling v. United

States, 418 U.S. 87, 135 (1974). The courts of appeals

have taken opposite approaches to the question of

what type of prejudice affects a defendant’s substantial

rights. Rule 52(a), Federal Rules of Criminal Procedure.

Different panels within the same circuit have likewise

reached disparate results.

The Ninth Circuit is the only circuit that has articu-

lated a consistent standard for deciding substantial

prejudice to a defendant where Rule 30 is violated by

the trial judge’s failure to correctly inform counsel

requesting information concerning his instructions to

the jury. The Ninth Circuit standard for the measure

of prejudice, which is the preferred test, examines the

misleading effect on the content of counsel’s argument,

“not the soundness of the ruling.”

In Wright v. United States, 339 F.2d 578 (9th Cir.

1964), the trial court failed to clearly inform counsel

of its ruling on requested jury instructions. Counsel’s

closing argument was based upon a theory of defense

which the court rejected, or at least ignored, in its subse-

quent instructions. The appeals court concluded that this

was sufficient to impair the effectiveness of counsel’s

argument and, hence, of appellant’s defense. See Rule

court found insubstantial an underrepresentation of women where

the absolute disparity was 17% and the comparative disparity

was over one-third. The court based this determination on a

comparasion to the 39.5% absolute disparity in Duren, which

corresponds to a comparative disparity of over 75%.

52(a). The court held that the failure of the trial court

to comply with Rule 30 prejudicially affected the

content of counsel’s argument.

It was the court’s failure to advise counsel of its

ruling prior to closing argument, not the soundness

of that ruling, which violated Rule 30 and preju-

dicially affected counsel’s summation. [Emphasis

added.] 339 F.2d at 580.

Similarly, in United States v. Harvill, 501 F.2d 295

(9th Cir. 1974), the court rejected the government’s

argument that the outcome of the trial would not have

been affected, even if counsel had known the court’s

actual instructions prior to making his argument to the

jury, stating that “[w]hether the requested instructions

were faulty is irrelevant.” 501 F.2d at 296. Accord,

United States v. Kroncke, 459 F.2d 697 (8th Cir. 1972);

Ross v. United States, 180 F.2d 160 (6th Cir. 1950).

The rule in the Ninth Circuit was followed by the Fifth

Circuit in United States v. Mendoza, 473 F.2d 697 (5th

Cir. 1973), and was apparently the rule in that circuit

until the panel decision in Petitioners’ case. See also

Steinberg v. United States, 162 F.2d 120 (5th Cir.), cert.

denied, 332 U.S. 808 (1947).

The Tenth Circuit focused on the effect which the

court’s misleading indications had on the contents of

counsel’s argument, not on the outcome of the trial.

This standard for reversal, frequently applied, is:

. whether the party was unduly and unfairly

prevented from making his argument to the jury

or was substantially misled by the court’s actions

or inactions in formulating his arguments. Whitlock

v. United States, 429 F.2d 942, 946 (10th Cir.

1970). :

Accord, United States v. Pommerening, 500 F.2d 92,

101 (10th Cir.), cert. denied, 419 U.S. 1088 (1974), reh.

denied, 420 U.S. 939 (1975).

The Sixth Circuit, in Ross v. United States, similarly

emphasized the deleterious effect of the failure to follow

the Rule even where two of the special requests which

the court rejected were incorrect in law.

This standard has not been uniformly applied. For ex-

ample, the Seventh Circuit in United States v. D’Argento,

373 F.2d 307 (7th Cir.), cert. denied, 389 U.S. 833

(1967), concluded that the failure of the trial court to

inform counsel of its proposed action upon requested

instructions is not reversible error when ‘“‘the jury was

sufficiently and properly instructed.” 373 F.2d at 314.

The Tenth Circuit decision in United States v. Newson,

531 F.2d 979 (10th Cir. 1976), also adopted a strict

harmless error approach and found no prejudice since the

instruction given was not a misstatement of the law.

A similar approach was taken in the decision of the

District of Columbia Circuit in Walker v. United States,

418 F.2d 1116 (D.C. Cir, 1969). The actual prejudice to

the defendant was considered negligible, even assuming

error under Rule 30 because of the strength of the

government’s evidence.

Still another approach was taken by a Fifth Circuit

panel in United States v. Scheffer, 463 F.2d 567 (5th

Cir.), cert. denied, 409 U.S. 984 (1972), a Third Circuit

panel in United States v. Hartman, 409 F.2d 198 (3rd

Cir. 1969), and a District of Columbia Circuit panel in

Loveless v, United States, 260 F.2d 487 (D.C. Cir. 1958).

These panels indicated that where there is a technical

failure of the trial court to comply with Rule 30, the

measure of prejudice depends vaguely upon whether the

ee TP eee ee

instruction, considered as a whole, was fundamentally

prejudicial to the rights of the defendant.

Without reference to Fifth Circuit precedent, the

decision in Petitioners’ case impliedly followed the

general standard for prejudice found in United States v.

D’Argento, United States v. Newson, and Walker v.

United States. The panel’s paltry treatment of Peti-

tioners’ Rule 30 argument was based entirely upon its

conclusion that “the District Court should not have

entertained, or allowed, the protracted contentions of

the defense to the effect that the marijuana taken from

the captured plane was of ‘a species’ different to [sic]

Cannabis sativa L.”'5 (Appendix at 10a.) The court

further stated:

The vigorous arguments on behalf of this theory and

as to the jury instructions sought with reference to

it must be rejected. Jd.

The sole basis for rejecting Petitioners’ Rule 30 argument

was the court’s apparent estimation that the instruction

given was a correct statement of the law. The panel gave

no consideration to the fact that counsel was substan-

tially misled, as was plain from the record, in presenting

their defense and arguing to the jury. Thus, the decision

of Petitioners’ Rule 30 claim depended upon which of

the conflicting panels decided Petitioners’ appeal.

The total absence of a consistent standard for evalu-

ating the prejudice to a defendant when there is a Rule

$0 violation has fostered irreconcilable results within and

among the federal circuits. The result of these disparate

standards is the absence of any reliable standard against

which counsel can measure how much reliance he can

15 Petitioners do not concede that the defense should not have

been allowed, notwithstanding the decision in United States v.

Gaines, 489 F.2d 690 (5th Cir. 1974).

place upon the anticipated jury instructions when he

formulates his closing argument to the jury.

The continued failure to articulate a uniform standard

reduces to a constitutionally impermissible level the

ability of counsel to make his closing argument based

upon what he reasonably understands the law of the

case to be. Counsel’s argument will either be more

timid and less effective, or counsel will risk having his

closing argument undercut by the judge’s subsequent

instructions. The absence of a standard impinges upon

every federal defendant’s Sixth Amendment right to

effective assistance of counsel.

CONCLUSION

For the reasons stated, petitioners pray that this Court

issue a Writ of Certiorari.

Respectfully submitted,

Davip Kairys

KAIRYS, RUDOVSKY & MAGUIGAN

1425 Walnut Street

Philadelphia, Pennsylvania 19102

Attorney for Petitioners

J. FLOWERS MARK

LOWE, MARK,

MOFFITT, FORD & BARTON

216 South Patrick Street

Alexandria, Virginia 22314

Attorney for Petitioner Harvey

JOHN KENNETH ZWERLING

JONATHAN SHAPIRO

ZWERLING & SHAPIRO, P.C.

108 North Columbus Street

Alexandria, Virginia 22314

Attorneys for Petitioner Perkins

FRANK MIKA

ARTHUR MEISNERE

MEISNERE & MIKA

1707 L Street, N.W., Suite 560

Washington, D.C. 20036

Attorneys for Petitioners

Blackburn, Crocker,

Murchison, Pernell, Toombs

& Pernell

CARLTON L. WEIDEMEYER

WIGHTMAN, WEIDEMEYER,

JONES & TURNBULL

319 South Garden Avenue

Clearwater, Florida 33516

Attorney for Petitioner Maskeny

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APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 78-5596

Jan. 4, 1980

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VU.

DONALD GEORGE MASKENY, LEE DURWOOD

HARVEY, MARK TIMOTHY PERKINS, JOSEPH

CHARLES BLACKBURN, SR., CHARLES MICHAEL

CROCKER, KENNETH MURCHISON, SIDNEY

LARRY PERNELL, BARRY WAYNE TOOMBS, TONY

DARWIN and JULIAN THOMAS PERNELL,

Defendants-Appellan ts.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

Before COLEMAN, Chief Judge, TJOFLAT and

Hill, Circuit Judges.

COLEMAN, Chief Judge.

Somewhere around 10 o’clock, P.M., March 6, 1978,

Pilots (appellants) Darwin and Maskeny, accompanied by

defendant Perkins, landed a twin engined airplace at the

Sylvania, Georgia public airport, loaded with 3,623

pounds of marijuana. They were met with an entirely

unexpected welcome from United States Customs Agents

and Georgia state officers who had been awaiting their

arrival.

The other defendants (appellants), also expecting the

arrival, had stationed themselves and their trucks in the

adjacent woods. They rushed to the plane and quickly

transferred the cargo, after which they set out for

Washington, D.C., only to be intercepted by other

officers who had been waiting down the road. No

ambush was ever more successfully laid or executed.

This happened because from the outset some of the

participants unwittingly had been dealing with an under-

cover government agent who had been kept informed

of everything that went on. Indeed, these conspirators

were so gullible that an agent had no difficulty in leading

them to believe that he was the owner of the publicly

owned Sylvania airfield. While most everybody has

heard of wooden nutmegs and of the Brooklyn Bridge,

two of the conspirators actually paid the agent $2,000,

cash in advance, for the privilege of landing their clan-

destine cargo on “his”’ airfield.

The defendant who had initiated the scheme with the

government agent, and who handed over the $2,000

supplied by one of the others, quickly saw that he was

irretrievably caught in the jaws of the lion, so he pleaded

guilty. He testified for the prosecution, corroborated

everything that the agent had sworn to, and wobbled

only as to whether it was in November or December

that he had received his first contact from one of the

other conspirators, an immaterial matter in light of the

evidence in the case. Defendant Kraince also pleaded

eer

guilty. The proof was annihilating but the remaining

ten men stood trial to a jury. They were represented

by skilled and tenacious trial counsel, who generated

towering columns of smoke despite the absence of useful

combustibles. Whatever else may be said of this case,

the defendants did not suffer for the lack of counsel who

were both competent and energetic.

The presence of so many defendants and so many

lawyers generated a bloated trial record. After oral

argument and an exploration of that record we are

altogether convinced that the judgment of the District

Court must be affirmed.

Darwin, Maskeny, Meycher, Perkins, Julian Thomas

Pernell, Sidney Larry Pernell, and Barry Wayne Toombs

were indicted for conspiracy to import 3,623 pounds

of marijuana from outside the United States. The indict-

ment further charged that when the contraband arrived,

Blackburn, Crocker, Harvey, Kraince, Meycher, Murchi-

son, the two Pernells, Toombs, Darwin, and Maskeny

participated in unloading-the marijuana from the aircraft.

Count 2 charged Darwin, Maskeny, Meycher, Perkins,

the two Pernells, and Toombs with importation and

causing importation.

Count 3 charged all defendants with conspiring to

possess with intent to distribute, while Count 4 charged

all named defendants with actual possession with intent

to distribute.

The relevant statutes are: 21 U.S.C., Sections 841(a)

(1), 846, 952(a), 960, and 963; 18 U.S.C., Section 2.

All defendants were found guilty on all charges.!

1Stated in abbreviated form, the sentences imposed were as

follows:

[footnote continued]

On January 7, 1978, William A. Wallace, Jr., an

employee of the United States Customs Service, met at

the Savannah airport with Jesus Manuel Meycher (who

later pleaded guilty), Barry Wayne Toombs, Julian

Pernell, and Frank Landry. Landry, an airplane pilot

and locator from Florida, had informed Wallace that

some people were interested in finding a clandestine air

landing strip in Georgia, that these people would be in

Savannah on January 7, and wondered if Wallace could

get together with them and show them such an airfield.

Wallace pretended to be the owner, in full control, of the

Sylvania airport. The boundary lights could be turned on

and off; “we knew the area including backroads”. GBI

Agent Claude Clardy went with Wallace and the others

on the exploratory trip to the Sylvania airfield, about a

ninety minute drive from Savannah. Meycher, Toombs,

Pernell, and Landry pronounced the field satisfac-

tory after a ten minute observation. They returned to

Savannah.

Meycher asked Wallace if he could come down to

Miami the next day to pick up the $2,000 “good faith”

money, giving him $200 with which to purchase the

airline ticket. Wallace went to Miami, where he met

Darwin —36 months; 4 years special parole.

Maskeny— 30 months; 4 years special parole.

Toombs and Sidney Larry Pernell—a year and a day. Supervised

probation 4 years.

Julian Thomas Pernell—6 months; $5,000 within 1 year; super:

vised probation for 3 years; special parole term 2 years.

Murchison—6 months. Special parole term 4 years. Supervised

probation 3 years.

Harvey and Mark Perkins—6 months; 4 years special parole.

Crocker —6 months; special parole 3 years. ~

Blackburn—Sentence suspended; supervised probation 3 years.

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with Meycher, Julian Pernell, and Larry Pernell, and got

the $2,000. At the first meeting, the parties informed

Wallace that the aircraft would be coming from Colombia.

It would be a large four engine type airplane, probably a

DC-6, and would be transporting approximately 20,000

pounds of marijuana. They needed nothing from Wallace

but the clandestine airstrip. Julian Pernell said that they

had their own trucks, that they would be using two

twenty foot sealed vans. They would have drivers in

uniforms and bills of lading in case they hit a roadblock.

At Meycher’s invitation, Wallace was back in Miami

on March 3, where he met Meycher at the Marriott Hotel

in a meeting that was surveilled by two DEA Agents.

Meycher said that the 20,000 pound airplane deal had

fallen through but a smaller airplane would be coming

in, wishing to know if Wallace had any objections to

that. Of course, Wallace had none. He gave Meycher

a previously requested aviation chart for the Sylvania

airfield and Meycher asked him to call him later. No

other defendant was present at this meeting.

Wallace talked to Meycher by telephone on March 4.

Meycher said that “the deal was set’? and that they

wanted to go ahead with it on Monday or Tuesday. At

approximately midnight on March 5 Wallace was again

in touch with Meycher at Howard Johnson’s in Savannah,

who asked Wallace to meet him the next morning, saying

that everybody was in town.

That next morning, Wallace and GBI Agent Clardy met

with Meycher at the Howard Johnson, where Meycher

again said that everybody was in town, that the deal was

set to go that night. After breakfast, Meycher, Wallace,

and Clardy went across the street to the Ramada Inn and

met Julian Pernell and Barry Toombs. All five men got

in a rental car and drove around “to further discuss the

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deal’... Julian Pernell at that time stated that the DC-6

deal was off, that they had a smaller twin enginé, aircraft

that would be coming into the field. Julian Pernell said

that they had four pickup trucks at various motels “‘so

they would not draw heat”, that they were of the four

wheel drive type which would be used to transport the

load from the airfield. Toombs said that the load was

going to Washington. As the parties drove back in at the

Ramada, Julian Pernell pointed out one of the vehicles.

During the ride there was some discussion that the

aircraft would be in between 9 and 10 o’clock that night.

At that point Toombs, Pernell and Meycher were

dropped off.

At 5 o'clock that afternoon Meycher, Julian Pernell,

and Toombs met with Wallace and Clardy at the Ramada

Inn restaurant. At 6 o’clock the parties left for the

Sylvania airfield. Barry Toombs went to Sylvania with

Customs Agent Wallace in an undercover GBI truck,

followed by Julian Pernell, driving another truck. Upon

arrival at Sylvania another truck was already present, in

the woods about a half mile from the runway. There

were four 4 wheel drive pickup trucks at the scene,

equipped with camper shells and CB radios.

As the marijuana laden aricraft approached the airport

it announced its approach on the UNICOM located inside

the “terminal”. Those present at the hangar area were

Clardy, defendant Harvey, defendant Meycher, and

defendant Larry Pernell. The trucks were brought in

and “everybody except Darwin and Maskeny were

loading the vehicles”. Perkins and Harvey passed the

bales out. The aircraft was unloaded. Perkins and

Harvey vacuum cleaned the interior, during which time

Customs Agent Wallace heard Perkins say ‘J just made a

long trip from Colombia and I want to get out of here”.

(Vol. 1, p. 252)

While the others started off in the trucks Darwin,

Maskeny, Harvey, and Perkins remained with the aircraft,

after which they were arrested and taken inside the

terminal.

The defendant, Jesus Meycher, who had been con-

ducting the arrangements with Agent Wallace and who

later pleaded guilty was thirty-two years old, an Ameri-

can citizen, resident of Tucson, Arizona, a high school

graduate, with a year of school in Mexico.

The government agreed to recommend probation in

return for his testimony. He pleaded guilty to two

counts.

According to Meycher, in December, 1977, in Tucson,

he was contacted. by the defendant Barry Toombs, who

needed an airplane to smuggle marijuana from Colombia

to the United States. He was to be paid $80,000 to get

the plane and the pilots. He met Barry Toombs and

Julian Pernell in Miami, Florida, in January, 1978,

whence he had gone to look for a big airplane. He had

gone to see “Frank” (Landry). He also discussed a

landing place in the United States with Frank Landry.

Landry, Pernell, and Toombs accompanied Meycher to

Savannah, where they met Clardy and Wallace. Wallace

claimed to be the owner of the airport and Clardy was

its manager. Meycher informed them that he needed a

4600 foot paved runway. Wallace had taken them to

the Sylvania airport, where they checked the runway, the

hangar, and the back road. The airfield was satisfactory

to Pernell and Toombs.

On January 8 he gave Wallace $200 in Savannah to get

to Miami. Along with Landry, Meycher met Wallace at

the Marriott Hotel in Miami and paid Wallace $2,000

as good faith money. He got the money from Julian

Pernell. Julian Pernell had given Meycher $10,000 on

January 8 at a time when Larry Pernell was present.

Meycher gave the remainder of the money to Frank

Landry as a good faith deposit on the plane they were

trying to obtain. He confirmed that Wallace gave him

the aerial chart of the Sylvania airpor:. He did not know

all of the members of the conspiracy until they were

arrested in Sylvania.

On the day the plane was to arrive in Sylvania, Julian

Pernell said the lighter plane would be able to land in

Colombia.?

Along with Larry Pernell and GBI Agent Clardy,

Meycher went to Sylvania to await the arrival of the

marijuana plane. When the plane arrived, Perkins jumped

out and the trucks started arriving. He saw the pilots

and one of them had a brief case (Vol. 2, p. 336). After

the marijuana had been off-loaded into the trucks,

everybody helping but the pilots, Meycher left the

airfield with the Pernell brothers and Toombs, but they

were arrested when they got to the paved road.

THE ATTEMPTED DEFENSES

In United States v. Gaines, 489 F.2d 690 (1974), we

held as follows:

“Noting that the federal statutory definition of

marihuana refers only to Cannabis sativa L., Gaines

2Landry testified that he had flown to Colombia to look at the

airstrip on which the DC-6 was to land to pick up the marijuana.

He concluded that no DC-6 could land on that strip. That was

what “blew up” the DC-6 plan, resulting in the use of the lighter

aircraft. Landry declined to go back to Colombia in any event.

Ee ee ae

ee eee arene eee

calls our attention to the fact that while the Govern-

ment’s expert chemist agreed that there are three

species of marihuana, i.e., Cannabis sativa L.,

Cannabis indica and Cannabis ruderalis, the chemist

was unable to differentiate between the three.

Building upon the premise that Cannabis sativa L. is

the only species of marihuana expressly prohibited

by statute, Gaines argues that the court’s refusal to

give the jury an instruction containing the statutory

definition of marihuana deprived the jury of con-

sidering whether the Government’s expert was

sufficiently trained and whether he sufficiently

tested the substance to prove beyond a reasonable

doubt that in fact the substance examined was

Cannabis sativa L. and not Cannabis indica.

“The Third Circuit recently considered the issue

raised by Gaines and concluded that Cannabis

indica is included within the statutory definition of

marihuana. United States v. Moore, 3 Cir., 1971,

446 F.2d 448. Similarly, the Second Circuit, while

recognizing the possibility that there may be some

botanical opinion that Cannabis is polytypal, found

that there is no question but that the lawmakers,

the general public and overwhelming scientific

opinion considered that there was only one species

of marihuana. . Whether this is scientifically

exact or not, the statute provided at the time of

the offense a sufficient description of what was

intended to be prohibited to give notice to all of

the illegality of appellant’s actions. United States

v. Rothberg, 2 Cir., 1973, 480 F.2d 534, 536.

“We are in full agreement with what has been

said by our sister Circuits, and thus find no error in

the district court’s refusal to instruct the jury with

respect to the statutory definition of marihuana.”

This view is supported by the following cases: United

States v. Honneus, 1 Cir., 1974, 508 F.2d 566; United

10a

States v. Gavic, 8 Cir., 1975, 520 F.2d 1346; United

States v. Kelly, 9 Cir., 1976, 527 F.2d 961; United

States v. Spann, 10 Cir., 1975, 515 F.2d 579; United

States v. Walton, D.C. Cir., 1975, 168 U.S. App. D.C.

305, 514 F.2d 201.

Therefore, the District Court should not have enter-

tained, or allowed, the protracted contentions of the

defense to the effect that the marijuana taken from the

captured plane was of “a species” different to Cannabis

sativa L. The vigorous arguments on behalf of this

theory and as to the jury instructions sought with refer-

ence to it must be rejected.

The same must be said of the controversy which con-

tinuously and lengthily swirled around the warrantless

search of a briefcase found on a counter inside the

airfield “terminal” at a time when the pilots were present

and after they had been arrested and given their Miranda

warnings. GBI Agent Clardy testified that he saw Pilot

Darwin carrying a briefcase when he got off the plane.

The customs agent who first noticed a briefcase on the

counter and seized it testified on a\motion to suppress

that when she inquired as to whom the briefcase belonged

to everybody remained silent. Another witness testified

that the defendants said that it did not belong to them.

Much time was spent on whether the defendants were

required to say anything when they obviously had a right

to remain silent, bearing on whether the briefcase had

been abandoned at the time it was seen and seized by the

customs agent. In the totality of this record, this was

all beside the point. The District Judge found, and the

record amply supports this finding, that the briefcase

was, in fact, brought off the plane by one of the pilots.

The customs agents had every reason to believe, and no

reason to doubt, that this plane, transporting marijuana,

Be Nehe Aedes

nn Se

AANA he ad AR ar

eS MI A ae ler

ee as ark sre

lla

had landed after a flight from outside the United States,

United States v. Ingham, 5 Cir., 1974, 502 F.2d 1287.

All along, it was well known that the contraband was to

come from Colombia. On the day the plane landed it

was mentioned by one of the conspirators in the presence

of the agent that the plane, enroute, would probably

stop in the Bahamas. While the cargo was being unloaded

in Sylvania, one of the men who had flown in with the

plane volunteered that he had had a tiresome flight from

Colombia and he wanted to get out of there.

The legality of the warranteless search of this briefcase

by a customs agent is governed by what the Supreme

Court said in Almeida-Sanchez v. United States, 413

U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973):

“For another example, a search of the passengers

and cargo of an airplane arriving at a St. Louis

airport after a nonstop flight from Mexico City

would clearly be the functional equivalent of a

border search”, 413 U.S. at 273, 93 S. Ct. at 2539.

“That searches made at the border, pursuant to

the long-standing right of the sovereign to protect

itself by stopping and examining persons and

property crossing into this country, are reasonable

simply by virtue of the fact that they occur at the

border, should, by now, require no extended

demonstration.”

United States v. Ramsey, 431 U.S. 606, 616, 619, 97

S. Ct. 1972, 52 L. Ed. 2d 617 (1977).

Neither do we see any merit in the point that the

briefcase was first taken by officers to a nearby town

before being there broken open and searched by a

customs officer. There is absulutely nothing to indicate

that the briefcase had been tampered with in transit or

that the discoveries would have been any different if the

briefcase had been opened as soon as it was found.

12a

The complaint about juror O’Neal being the husband

of the trial judge’s secretary is equally without merit.

The record reveals that under voir dire questioning by

counsel for one of the defendants Mr. O’Neal stated that

his wife was “a secretary with this Court’, that he did

not feel that his wife “being connected with the Court

itself would in any way influence [his] judgment about

the evidence that would be presented’. None of defense

counsel pursued the subject but Mr. O’Neal was exten-

sively questioned about his views and attitudes as a

tobacco salesman. He was not challenged for cause and

he was not peremptorily challenged. Counsel for the

appellants were on specific notice of the status of the

juror’s wife and made no effort to have him excused.

It is too late now to complain about this.

Appellants assert, as they did before trial in the

district court, that the selection process for the grand and

petit juries in the southern disttrict of Georgia violated

the Constitution and 28 U.S.C.A. §§ 1861-1869, the

Jury Selection and Service Act. We have carefully

examined appellants’ arguments on this issue and, for the

reasons set forth below, find them without merit.

A. The Constitutional Challenge

In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664,

58 L. Ed. 2d 579 (1979), the Supreme Court stated

that a defendant’s sixth amendment right to a petit jury

selected from a fair cross-section of the community

is violated when there is a systematic disproportion

between the percentage of a “distinctive” group in the

community and its representation in venires from which

juries are selected, unless the state shows that the aspects

of the process that result in the disproportion manifestly

and primarily advance a significant state interest, id.

l3a

99 S. Ct. at 668-71 and 670 n.26.° The Court clearly

set out the elements of a prima facie violation of the

fair cross-section requirement: the defendant must

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

‘distinctive’ group in the community; (2) that the

representation of this group in venires from which

juries are selected is not fair and reasonable in relation

to the number of such persons in the community; and

(3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.”

Id. at 668.

Appellant has alleged that the proportion of various

groups responding to a jury service questionnaire and

being placed on the qualified wheel varies to a consti-

tutionally impermissible degree from the proportion of

these groups in the community. We need not decide

whether each of these groups is “‘distinctive”’ for purposes

of a jury challenge* as we find that appellant has failed

to make out a case of a constitutionally impermissible

disproportion.

According to appellant’s statistics, the disparity

between the percentage of each allegedly “‘distinctive”’

group in the community and the percentage of that

group either returning questionnaires or ending up on

the qualified wheel is less than ten percent. The Supreme

Court in Swain v. Alabama, 380 U.S. 202, 208-09,

3In Duren appellant challenged the procedures of a state in

selecting venires. We assume, however, that the same analysis of

disproportion applies when a violation of the sixth amendment

by the federal government is alleged. In the present case no issue

of a significant federal interest is raised so we need not decide

whether that aspect of the analysis would apply in the case of a

federal violation.

4Appellant argues, for example, that persons under the age of

thirty who are eligible for jury service constitute such a group.

l4a

85 S.Ct. 824, 13 L.Ed.2d 759 (1965), held that

underrepresentation by as much as ten percent did not

show purposeful discrimination based on race. We

recognize, however, that Swain was an equal protection

case where purposeful discrimination must be shown and

that the Court in Duren stated that a defendant need

not show discriminatory purpose for a sixth amendment

violation. The Court in Duren, however, discussed the

statistical discrepancy needed to make out an equal

protection violation along with its discussion of the

disproportion that demonstrates a sixth amendment

violation, 99 S. Ct. 670 n.26. Thus, while the Court

stated that statistical evidence is used to prove different

elements in equal protection and sixth amendment

claims, it did not indicate that the necessary amount

of disparity itself would differ. This Court in Thompson

v. Sheppared, 490 F.2d 830 (5th Cir. 1974), cert. denied,

420 U.S. 984, 95 S. Ct. 1415, 43 L. Ed. 2d 666 (1975),

upheld a system that resulted in an eleven percent

disparity between the percentage of black people in the

population and black people on the jury list. Appellant

urges that we either find that an absolute disparity

below ten percent violates the constitution or that we

base our decision on data derived from other statistical

methods, specifically comparative disparity or disparity

in standard deviations. It is true that the Supreme Court

in Castaneda v. Partida, 430 U.S. 482, 496 n.17, 97

S. Ct. 1272, 51 L. Ed. 2d 498 (1977), discussed disparity

in standard deviations, but it seems clear to us that

the Court in that case based its holding on an absolute

disparity of 40 percent between the population of

Mexican-Americans in the community and the percentage

summoned for jury service, id. at 495, 97 S. Ct. 1272.

In fact, the Court specifically noted that the actual

disparities earlier accepted by the Court as adequate

cena rns Hind “

CD tS tl ERG, Sethi OEM cs) heh wet ly SRLS OAV CRAY a it ah A

15a

for a prima facie case> had all been within the range

presented in Castaneda, id. at 496, 97 S. Ct. 1272. This

Court as well has referred to statistical methods other

than absolute disparity,® but has never found a constitu-

tional violation based on the data produced by such

methods. Finally, the Supreme Court focused on absolute

disparities in Duren, supra. Appellant argues that reliance

on absolute disparity could elad to approving the total

exclusion from juries of a minority that comprised less

than ten percent of the population of the community.

We need not, however, speculate here on how we would

treat such a situation for all the groups analyzed in

appellant’s statistics comprise more than ten percent of

the community.

In sum, we decline appellant’s invitation to focus on

comparative or standard deviation disparity and find that

the absolute disparities shown do not make out a consti-

tutional violation.

B. The Statutory Challenge

The statute itself declares that the ground for a chal-

lenge to jury selection procedures is “‘substantial failure

to comply with the provisions of this title,’ 28 U.S.C.A.

§ 1867. This Court in United States v. Davis, 546

F.2d 583, 589 (5th Cir. 1977), cert. denied, 431 U.S.

906, 97 S.Ct. 1701, 52 L. Ed. 2d 331 (1977), stated,

“Determining the substantial compliance question

requires that the alleged violations of the Act be weighed

5 By our calculations, the actual disparities in the cases cited by

the Court were 27.1%, 24.4%, and 19.7%.

6See Berry v. Cooper, 577 F.2d 322, 326 n.11 (5th Cir. 1978);

United States v. Goff, 509 F.2d 825, 826-27 & n.3 (5th Cir.

1975), cert. denied, 423 U.S. 857, 96 S.Ct. 199, 46 L. Ed.2d 83

(1975).

16a

against the goals of the statute.”” The Court identified

the major goal of the statute as the random selection

of juries from a fair cross-section of the community;

toward that end voter lists are to be the primary source

of jurors’ names and disqualifications, excuses, exemp-

tions, and exclusions are to be based solely on objective

criteria, td. The Court then held that one aspect of

the selection process there under review constituted a

technical violation of the statute but that the violation

in no way affected the random nature or objectivity of

the selection process and did not constitute a substantial

failure to comply with the statute. In United States v.

Goff, 509 F.2d 825 (5th Cir. 1975), cert. denied, 423

U.S. 857, 96 S.Ct. 109, 46 L. Ed. 2d 83 (1975), this

Court stated that to sustain a statutory challenge to

grand jury selection procedures, a defendant must show

the impact of an absolute disparity on the jury list.

Specifically, although a group might be 47.73% under-

represented on a voter registration list, at most this

disparity would result in 1.4 fewer persons on a twenty-

three person grand jury than if the group’s percentage

of the population of the community (there 10.51%)

were mirrored on a grand jury. This potential impact

on a grand jury was held not to be so substantial as to

require a supplementation of voter registration lists with

other sources for grand jurors. Jd. at 827.

As we read appellants’ brief and the record, appellant

alleges as statutory violations: (1) an allocation of grand

jury seats among the divisions that did not reflect the

population of those divisions and resulted in the under-

representation of service workers and therefore of black

people; (2) that the voter registration lists were an

inadequate source of jurors because of a low rate of

return of questionnaires (due in part to the absence of

mes sptnmetasiinia' 2: stbiaste rai

LS Ea a i te Bat ila

ea MK mene Oaks Ls is

17a

voters’ addresses), and that a supplemental source of

potential jurors was required; (3) that the one-year

district residency requirernent is unconstitutional; (4)

that the ministerial exemption or its application violated

the first amendment; and (5) that the clerk and Adminis-

trative Office of the United States Courts usurped the

function of the district judge in excusing jurors in

violation of the statute. We treat these claims seriatim.

Appellants assert that one division in the district had

three fewer seats on the grand jury than its population

would warrant and goes on to speculate that black people

had recently moved into this division and become service

workers and were consequently underrepresented. They

fail to show the impact of this alleged misallocation of

seats on representation of the particular groups on the

jury list. The government in its brief has shown that the

alleged underrepresentation of the groups on which

appellant focuses falls far short of the impact held

insubstantial in Goff, supra. Brief for Appellee, at

Appendix III.

Appellant cites two opinions of this Court for the

proposition that voter lists must be supplemented when

too few questionnaires are returned.” As appellee cor-

rectly points out, Brief for Appellee, at 50-51, both of

these cases dealt with appropriate remedies for selection

processes that had been found to be discriminatory.

Subsection (b)(2) of 28 U.S.C.A. § 1863 specifically

provides for selection of prospective jurors from voter

registration lists adding: “The plan shall prescribe some

other source or sources of names in addition to voter

lists where necessary to foster the policy and protect the

7Broadway v. Culpepper, 439 F.2d 1253 (5th Cir. 1971), Berry

v. Cooper, 577 F.2d 322 (5th Cir. 1978).

18a

rights secured by sections 1861 and 1862 of this title.’

Id. The law review article, cited by appellant, which

advocates greater use of other sources states:

At present only two federal district courts and

several state courts utilize multiple lists and no court

has either required multiple lists or supplemented a

primary list on constitutional or statutory grounds.

Most decisions require proof of purposeful discrimi-

nation in jury selection, even though constitutional

and statutory authority indicates that proof of a

significant disparity between the composition of the

population and the source or pool constitutes a

prima facie case of invalidity. Other cases require

proof that the underrepresentation resulted in a

‘substantial impact’ on the absolute number of

minority members serving on a panel... .

Kairys, Kadane & Lehoczky, Jury Representatives: A

Mandate for Multiple Source Lists, 65 Cal. L. Rev. 776,

778 (1977). Responding to a statutory challenge to a

grand jury, this Court in Goff found that in enacting the

statute Congress

felt that utilization of voter registration lists as the

primary source of names for the master jury list

would provide a more representative cross section

of the community. That body recognized that in

some instances, failure of particular groups in a

community to register would mean that the voter

registration list would not accurately represent a

fair cross section of the community. But where, as

in this case, the impact of the underrepresentation

does not substantially affect the composition of the

average grand jury, the Act does not require the

district to incur the substantial expense and adminis-

trative inconvenience necessary to supplement the

voter registration list. }

e~J

19a

509 F.2d 825, 827. In Camp v. United States, 413 F.2d

419 (5th Cir.), cert. denied, 396 U.S. 968, 90 S. Ct. 451,

24 L. Ed. 2d 434 (1969), appellant challenged both the

grand jury and the array of petit jurors alleging that

voter registration lists did not constitute a representative

cross-section because a particular religious group did not

the use of voter registration lists under district jury plans,

adding:

Plans, if approved, may require supplemental

sources if needed to assure a fair cross-section of

the community. But the principal, if not sole,

source is to be voter registration lists for random

selection. Use of such lists as the sole source of

names for jury duty is constitutionally permissible

unless this system results in the systematic exclusion

of a ‘cognizable group or class of qualified citizens.’

Id. at 421. See also United States v. Dangler, 422 F.2d

344, 345 (5th Cir. 1970). Because we find that appellants

have not shown either that the use of voter registration

lists has a substantial impact on the composition of

the average grand jury or that their use results in the

systematic exclusion of a cognizable group from jury

source, we find this claim to be without merit.

The statute itself, 28 U.S.C.A. § 1865(b)(1) requires

that a juror have resided in the district one year. This

Court upheld the constitutionality of this statutory

requirement in United States v. Perry, 480 F.2d 147, 148

(5th Cir. 1973), and we do not agree with appellants’

assertion that certain passages in Duren, supra, require a

contrary holding.

We also find that the ministerial exemption as it exists

in the local plan and as it was administered in the district,

does not violate the statute or the Constitution. Section

20a

1861 of the statute declares that it is the policy of the

United States that all citizens have the opportunity to

be considered for jury service and an obligation to serve

when summoned. Section 1862 prohibits exclusion

from jury service on account of, inter alia, religion.

Subsection (b)(5) of section 1863 provides that a jury

selection plan shall

specify those groups of persons or occupational

classes whose members shall, on individual request

therefor, be excused from jury service. Such groups

or classes shall be excused only if the district court

finds, and the plan states, that jury service by

such class or group would entail undue hardship or

extreme inconvenience to the members thereof,

and excuse of members thereof would not be

inconsistent with sections 1861 and 1862 of this

title.

The local plan for the Southern District of Georgia

includes the following:

EXCUSES ON INDIVIDUAL REQUEST

This court finds and hereby states that jury

service by members of the following occupational

classes or groups of persons would entail, undue

hardship and extreme inconvenience to the members

thereof, and serious obstruction and delay in the

fair and impartial administration of justice, and that

their excuse will not be inconsistent with the Act

and may be claimed if desired and shall be granted

by the Court upon individual request: (1) all

ministers of the gospel and members of religious

orders actively so engaged ....

Appellants urge that the effect of the administration of

this exemption in the Southern District of Georgia was

to exclude all Jehovah’s Witnesses in violation of section

1862 of the statute and the establishment clause of the

first amendment.

2la

Appellants first assert that all members of the Jeho-

vah’s Witnesses sect consider themselves ministers. They

urge that the standard for ministerial exemption (voca-

tion not avocation) developed in cases dealing with

military service applies here. They continue by noting

that some persons who were excused as ministers did not

list minister as their occupation in their jury question-

naire and that some of these people identified themselves

as Jehovah’s Witnesses. Finally they note that those

who were excused as ministers but did not list their

occupation as “minister” comprised 3.5% of all exclu-

sions in one district. We find that granting ministerial

exemptions to those who so request but do not list

their occupation as minister does not, alone, constitute

exclusion from jury service on account of religion. We

further find that appellants have failed to show that the

operation of the ministerial exemption in the Southern

District of Georgia relieves all members of any particular

sect of jury service, thus we need not reach appellants’

first amendment claim. We further note that in Camp

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

denied, 396 U.S. 968, 90 S. Ct. 451, 24 L. Ed. 2d 434

(1969), this Court rejected a challenge to the cross-

section requirement based on grounds similar to the

present claim. Appellant asserted that Jehovah’s Wit-

nesses do not register to vote and this Court upheld the

use of voter registration lists noting that “those who do

not choose to register to vote cannot be considered a

‘cognizable group,” id. at 421. In United States v.

Henderson, 526 F.2d 889 (5th Cir. 1976), this court

rejected a challenge to an exemption for “one man”

businesses noting that the exemption was not automatic

but based on individual requests and relying in part on

the element of choice present in Camp.

22a

Finally, appellants assert that their convictions be

reversed because persons other than judges performed

functions in excusing jurors, functions that the statute

requires the district judge to perform. This Court dealt

with a very similar claim in United States v. Evans, 526

F.2d 701 (5th Cir. 1976), cert. denied, 429 U.S. 818, 97

S Ct. 62, 50 L. Ed. 2d 78 (1976), and held that errors

made by clerks determining excuses, exemptions, and

disqualifications of potential jurors when, according to

the statute, a judge should have made the determinations

did not require reversing defendants’ convictions as the

clerk’s errors did not constitute substantial failure to

comply with the statute, id. at 704-07. It is true that

in Evens nearly all the errors resulted in inclusion of

persons who possibly should have been relieved of jury

duty. While the record here does indicate that the clerk

may indeed have made determinations that by statute

the judge should have made, the appellants do not show

that the clerk made erroneous determinations. Their

allegations fall far short of showing a substantial failure

to comply with the statute. We therefore find no basis

for reversing the defendants’ convictions on this ground.

AFFIRMED.

23a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5596

D.C. Docket No. CR-478-33

UNITED STATES OF AMERICA,

Plaintiff~Appellee,

Vv.

DONALD GEORGE MASKENY, LEE DURWOOD

HARVEY, MARK TIMOTHY PERKINS, JOSEPH

CHARLES BLACKBURN, SR., CHARLES MICHAEL

CROCKER, KENNETH MURCHISON, SIDNEY

LARRY PERNELL, BARRY WAYNE TOOMBS, TONY

DARWIN and JULIAN THOMAS PERNELL,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

Before COLEMAN, Chief Judge, TJOFLAT and HILL,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Georgia, and was argued by counsel.

24a

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the convictions

of the said District Court in this cause be, and the same

is hereby, affirmed.

January 4, 1980

Issued as Mandate: Feb. 25, 1980

(as to TONY DARWIN ONLY)

25a

APPENDIX C

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Office of the Clerk

February 14,1980 _Tel.: 504-589-6514

Gilbert F. Ganucheau 600 Camp Street

Clerk New Orleans, La. 70130

TO ALL PARTIES LISTED BELOW:

No. 78-5596

U.S.A. v. Donald George Maskeny, et al.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition(s) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Gilbert F. Ganucheau, Clerk

By: /s/ Claudia Nedes

Deputy Clerk

cc: Messrs. William H. McAbee, III

David Roberson

Ms. Katherine L. Henry

26a

Mr. Carleton L. Weidemeyer

Messrs. J. Flowers Mark

John Mark

Messrs. John Kenneth Zwerling

: Jonathan Shapiro

Messrs. Frank A. Mika

Arthur S. Meisnere

Mr. Donald G. Doddington

Mr. Roger V. Rigau

2 - 4 . a)

27a

APPENDIX D

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 78-5596

[Filed: Feb. 27, 1980]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

DONALD GEORGE MASKENY, LEE DURWOOD

HARVEY, MARK TIMOTHY PERKINS, JOSEPH

CHARLES BLACKBURN, SR., CHARLES MICHAEL

CROCKER, KENNETH MURCHISON, SIDNEY

LARRY PERNELL, BARRY WAYNE TOOMS, TONY

DARWIN and JULIAN THOMAS PERNELL,

Defendants-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

ORDER

The motions of all appellants, except Tony Darwin,

for stay of the issuance of the mandate pending petition

for writ of certiorari are GRANTED to and including

March 15, 1980, the stay to continue in force until the

final disposition of the case by the Supreme Court,

provided that within the period above mentioned there

28a

shall be filed with the Clerk of this Court the certificate

of the Supreme Court that the certiorari petition has

been filed. The Clerk shall issue the mandate upon

the filing of a copy of an order of the Supreme Court

denying the writ, or upon the expiration of the stay

granted herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within that

time.

/s/ James P. Coleman

Chief Judge

29a

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Criminal Action No. CR 478-33

[ Filed: Oct. 30, 1978]

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

JOSEPH CHARLES BLACKBURN, et al.

Defendant.

THE COURT having granted the Defendants permis-

sion to adopy the Jury Selection and Composition

Challenge and the supporting testimony and documenta-

tion given in the United States v. Lyons, United States

District Court, Southern District of Georgia, Brunswick

Division, CR 277-12, and the court having been notified

that the court reporter for said case, Mr. Craig Deloach,

has not as yet provided transcripts of the evidentiary

hearings thereto, it is hereby considered and ajudged that

the time for filing and transmitting the transcript of the

record on appeal be extended ninety (90) days from the

original date of the appeal.

SO ORDERED this 30th day of October, 1978.

/s/ Alexander A. Lawrence

Judge,

United States District Court,

Southern District of Georgia

30a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

Criminal No. 478-33

[Filed: Nov. 3, 1978]

UNITED STATES OF AMERICA,

Plaintiff,

JOSEPH CHARLES BLACKBURN, SR., et al.,

Defendant.

ORDER

Upon consideration of defendant’s Motion for Incor-

poration and Memorandum in support thereof, and after

having heard oral argument on said Motion, it is hereby:

ORDERED that the portions of the record in United

States v. Michael Thomas Smith, et al., Docket No. CR

278-40 (United States District Court for the Southern

District of Georgia, Brunswick Division), and United

States v. Auvergne d’Antignac, Docket No. CR 278-38

(United States District Court for the Southern District

of Georgia, Brunswick Division), which relate to the

challenges made to the grand and petit jury selection

procedure be incorporated in the record on appeal in the

above-captioned case upon the following caveat:

1. That the United States of America objects to and

does not stipulate to those facts as applicable to the

instant case;

3la

2. That it appearing to the Court that the matters

cannot be considered upon appeal inasmuch as they are

not a part of the record; and

3. That such matters are hereby appended to the

record solely for informational purposes with respect to

the Grand and Petit Jury selection should the United

States Court of Appeals for the Fifth Circuit desire such

information.

/s/ Alexander A. Lawrence

Judge

Date: November 3, 1978

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.