Opposition — Maskeny v. United States

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Nos, 79-1433 and 79-1532 if

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

DONALD GEORGE MASKENY, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

TONY DARWIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

) WILLIAM G. OTIS

MARSHALL TAMOR GOLDING

Attorneys

Department of Justice

Washington, D.C. 20530

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CITATIONS

Cases:

Castaneda v. Partida, 480 U.S. 482 ........ 8

Duren v. Missouri, 489 U.S. 357 ............... 6,9

Simmons v. United States, 406 F.2d 456,

cert. denied, 395 U.S. 982 000... 9

Swain v. Alabama, 380 U.S. 202 .............. 4,7,9

Taylor v. Louisiana, 419 U.S. 522 ............ 9

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

cert. denied, 436 U.S. 911 2.00... 8

United States v. Brady, 579 F.2d 1121,

cert. denied, 439 U.S. 1074 6

United States v. Butler, 611 F.2d 1066,

petition for cert. pending on other

grounds, No. 79-1839 aibcehctiinidoaede 8

United States v. Coats, 611 F.2d 37, cert.

denied, No. 79-1230 (Apr. 21, 1980)... 8

United States v. Evans, 542 F.2d 805,

cert. denied, 429 U.S. 1101 ................ 9

United States v. Freeman, 514 F.2d 171.. 8

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

denied; 438 U.S. 667 8-9

United States v. Grismore, 546 F.2d 844.. 8

Cases—Continued | Page

United States v. Guzman, 468 F.2d 1245,

cert. denied, 410 U.S. 987 ...................- 8

United States v. Lopez, 588 F.2d 4650,

cert. denied, 442 U.S. 947 ....................- 8

United States vy. Lyons, No. CR 277-12

(S.D. Ga.), vacated and remanded on

other grounds, No. 78-5340 (5th Cir.

RNS a ID: Get aiclinhieceiscisesccteioia ens 4

Constitution, statutes and rule:

United States Constitution, Sixth Amend-

aici nc acsiehSntiphaisiubidecitiaghacdstvaubioendlecs 6

Comprehensive Drug Abuse Prevention

and Control Act of 1970, Title II, 21

U.S.C. 801 et seq.:

SC ets) 1

$1 USC, Oi (ay) .........

ee Oi

ee Wie

ee

Se) EE

Jury Selection and Service Act of 1968,

28 U.S.C. 1861 et seq.:

28 U.S.C. 1861 ... a - 6

ZB U.S.C, 1861-1860 2.2.2... nncesccaceseroee 5

SITS AE 6

FR, Bi I Oy IO iiraccespenrcatecscensviccibessiiie 10, 12

Miscellaneous:

1970 Census of the Population: Charac-

teristics of the Population, vol. I, pt.

Bee CUINNE BVO) ei scckieenictbioeccteceecerecacsccs 7

mw hw dw Ww

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1433

DONALD GEORGE MASKENY, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

No. 79-1532

TONY DARWIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF AF. EALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

22a) is reported at 609 F.2d 183.

‘“Pet, App.” refers to the appendix to the petition in No.

79-1488,

(1)

2

JURISDICTION

The judgment of the court of appeals (Pet. App.

23a-24a) was entered on January 4, 1980. A peti-

tion for rehearing was denied on February 14, 1980

(Pet. App. 25a-26a). The petition for a writ of

certiorari in No. 79-1433 was filed on March 14,

1980. The petition in No. 79-1532 was filed on

March 31, 1980, and is therefore out of time under

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

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the jury-selection plan for the South-

ern District of Georgia deprived petitioners of their

right to a jury drawn from a fair cross-section of

the community, in violation of the Jury Selection and

Service Act of 1968 or the Constitution.

2. Whether the district court misled petitioners

with respect to its intended action on their proposed

jury instructions.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of Georgia, peti-

tioners were convicted of possessing marijuana with

intent to distribute it, in violation of 21 U.S.C. 841

(a) (1), and of conspiracy to commit that offense, in

violation of 21 U.S.C. 846. Petitioners Maskeny, Per-

kins, Sidney Pernell, Julian Pernell, Toombs, and

Darwin were also convicted of conspiring to import

and importing marijuana, in violation of 21 U.S.C.

952(a), 960, and 963. They were sentenced to vari-

ous terms of imprisonment, special parole, and pro-

NO QLD,

3

bation,? and, in addition, Julian Pernell was fined

$5,000. The court of appeals affirmed (Pet. App.

la-22a).

Petitioners do not contest the sufficiency of the

evidence to support their convictions. The evidence at

trial showed that several petitioners engaged in a con-

spiracy to import marijuana from Colombia (Pet.

App. la-2a, 4a-8a). Petitioners Maskeny, Darwin,

and Perkins flew a twin-engine airplane loaded with

more than 3600 pounds of marijuana from Colombia

to Sylvania, Georgia. The remaining petitioners were

waiting with trucks in the woods adjacent to the air-

port, and, when the plane arrived, they transferred

the cargo to the trucks and drove away with it.

Customs agents and state police were informed of

the planned importation in advance and had the air-

port under surveillance. All of the conspirators were

arrested either at the airport or when their trucks

were stopped after they left the airport.

2 Petitioner Maskeny was sentenced to 30 months’ impris-

onment and a four-year special parole term; petitioners

Harvey and Perkins were sentenced to six months’ imprison-

ment and a four-year special parole term; petitioner Black-

burn received a suspended prison sentence and was placed

on supervised probation for three years; petitioner Crocker

was sentenced to six months’ imprisonment and a three-year

special parole term; petitioner Murchison was sentenced to

six months’ imprisonment, a four-year special parole term,

and three years’ supervised probation; petitioners Toombs

and Sidney Pernell were sentenced to imprisonment for a

year and a day and four years’ supervised probation; peti-

tioner Julian Pernell was sentenced to six months’ imprison-

ment, a two-year special parole term, and three years’ super-

vised probation; and petitioner Darwin was sentenced to 36

months’ imprisonment and a four-year special parole term

(Pet. App. 4a n.1).

4

ARGUMENT

1. Before trial, petitioners asserted that the in-

dicting grand jury and the petit jury were not chosen

from a fair cross-section of the community. The

records on which their challenge was based * showed

that the jury wheels were filled, in accordance with

the district court’s jury-selection plan, by a random

selection from the district’s voter registration lists.

Black persons accounted for 29% of the population

of the district and 20% of the grand-jury wheel.*

The district court rejected petitioners’ challenge to

the jury-selection method, and the court of appeals

affirmed. Relying on Swain vy. Alabama, 380 U.S.

202 (1965), the court of appeals held that the “ab-

solute disparity” of less than 10% was insufficient

to “make out a case of a constitutionally impermis-

sible disproportion” (Pet. App. 18a). The court also

found that petitioners did not show “either that the

3’ Rather than offering evidence of their own, petitioners

moved to incorporate the arguments and exhibits in another

jury challenge case, United States v. Lyons, No. CR 277-12

(S.D. Ga.), vacated and remanded on other grounds, No. 78-

5340 (5th Cir. Dec. 14, 1979). Subsequently, they discovered

that the grand jury in Lyons was selected from a jury wheel

filled four years before the wheel from which their grand jury

was selected. Petitioners then moved to incorporate demo-

graphic data introduced in two other cases involving chal-

lenges to the more recent wheel. The court granted their mo-

tion solely for informational purposes in the event the court of

appeals desired such information (Pet. 5-6 & n.1; Pet. App.

29a-3la).

* Blacks represented 31% of the population of the division

in which the trial was held and 24% of the petit-jury wheel.

Petitioners here limit their discussion to the grand-jury chal-

lenge, assertedly “for simplicity” (79-1488 Pet. 10 n.6).

5

use of voter registration lists has a substantial im-

pact on the composition of the average grand jury

or that their use results in the systematic exclusion

of a cognizable group from jury source” (id. at 19a).

Accordingly, the court of appeals concluded that the

Jury Selection and Service Act of 1968, 28 U.S.C.

1861-1869, did not require the use of a supplemental

source for potential jurors.

The gist of petitioners’ contention here is that the

court of appeals erred by applying an “absolute dis-

parity” test rather than a “statistical significance”

test or, preferably, a “comparative disparity” test.°

This case, however, does not present any occasion

for the Court to choose among the different kinds of

tests, even assuming that it is desirable to select one

as the primary benchmark. The grand-jury and petit-

jury wheels satisfied constitutional and statutory

requirements regardless of whether an “absolute dis-

parity” or a “comparative disparity” test is ap-

plied, and the “statistical significance” test has no

relevance to this case.

The Jury Selection and Service Act of 1968 requires

that federal juries be “selected at random from a fair

5 “Absolute disparity” is computed by subtracting the per-

centage attributable to an underrepresented group in the jury

wheel from the percentage that that group represents in the

population at large. “Comparative disparity” is computed by

dividing the absolute disparity by the proportion of the popu-

lation in the underrepresented group. This test is said to

better reflect the amount by which the probability of serving

is reduced for persons in the underrepresented group. The

test of “statistical significance” is the probability that a given

disparity would have occurred by chance (see 79-1433 Pet.

11-12).

6

cross section of the community” (28 U.S.C. 1861)

and provides that no citizen shall be excluded from

jury service “on account of race, color, religion, sex,

national origin, or economic status” (28 U.S.C. 1862).

In order to make a prima facie showing of a viola-

tion of the statutory fair cross-section requirement,

petitioners must demonstrate that a “cognizable”

group within the community was substantially under-

represented in the grand-jury wheel for the Southern

District of Georgia or in the petit-jury wheel for the

Savannah Division of that district, where their trial

occurred. See United States v. Brady, 579 F.2d 1121,

1132-1133 (9th Cir. 1978), cert. denied, 439 U.S.

1074 (1979). In order to make a prima facie show-

ing of discrimination in the jury selection process,

in violation of the Sixth Amendment, petitioners must

also establish that the “underrepresentation is due

to systematic exclusion of the group in the jury-

selection process.” Duren v. Missouri, 439 U.S. 357,

364 (1979).

Petitioners have failed to show a prima facie vio-

lation of either the statute or the Constitution, be-

cause their statistics do not indicate that black per-

sons are substantially underrepresented on jury rolls

in the Southern District of Georgia. In the first

place, the disparities alleged by petitioners are prob-

ably overstated because, if black persons account

for 29% of the total population in the Southern Dis-

trict of Georgia, they almost certainly- represent a

smaller percentage of the jury-age population in that

7

district.2 But, even accepting petitioners’ statistics

at face value, their challenge to the jury selection

process is foreclosed by Swain v. Alabama, supra,

in which this Court rejected a similar challenge where

black persons accounted for 26% of those eligible

for the jury duty but only 10% to 15% of those ac-

tually serving on grand-jury or petit-jury panels.

The Court stated (380 U.S. at 208-209; citations

omitted) :

[A] defendant in a criminal case is not constitu-

tionally entitled to demand a proportionate num-

ber of his race on the jury which tries him nor

[sic] on the venire or jury roll from which petit

jurors are drawn. Neither the jury roll nor the

venire need be a perfect mirror of the com-

munity or accurately reflect the proportionate

strength of every identifiable group. * * * We

cannot say that purposeful discrimination based

on race alone is satisfactorily proved by show-

ing that an identifiable group in a community

is underrepresented by as much as 10%.

As in Swain, there is no evidence in this case that

different selection standards were applied based on

the race of prospective jurors. On the contrary, the

jury selection plan in the Southern District of Georgia

specifies that jury wheels are to be filled by random

¢ The 1970 Census reveals that in that year the total popu-

lation of Georgia was 25.9% black, but the jury-age popula-

tion (18 years old and older) was only 22.9% black. 1970

Census of the Population: Characteristics of the Population,

vol. I, pt. 12: Georgia, Table 19, at 12-57, and Table 20, at

12-58 and 12-62 (March 1978).

8

selection from lists of registered voters, a method ex-

plicitly authorized by Congress in the Jury Selection

and Service Act of 1968.’ Federal courts that have con-

sidered the matter have uniformly sustained the use of

such lists as the basis for compiling lists of prospective

jurors, even when defendants have objected that this

method of jury selection results in the underrepre-

sentation of identifiable groups whose members are

underrepresented among registered voters. This

Court has consistently denied review in such cases.

See, e.g., United States v. Coats, 611 F.2d 37 (4th

Cir. 1979), cert. denied, No. 79-1230 (Apr. 21, 1980) ;

United States v. Butler, 611 F.2d 1066 (5th Cir.

1980), petition for cert. pending on other grounds,

No. 79-1839; United States v. Lopez, 588 F.2d 450

(5th Cir.), cert. denied, 442 U.S. 947 (1979) ; United

States v. Arlt, 567 F.2d 1295, 1297 (5th Cir.), cert.

denied, 436 U.S. 911 (1978); United States v. Gris-

more, 546 F.2d 844, 848 (10th Cir. 1976); United

States v. Freeman, 514 F.2d 171 (8th Cir. 1975);

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

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

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

7 The “statistical significance” test discussed by petitioners

(79-1438 Pet. 14-16) is inapposite in these circumstances.

That test is applied where jury lists are compiled by a method

other than random selection. It is used to determine whether

the system employed can produce a representative jury list

and to enable reviewing courts to draw inferences concerning

the likelihood of deliberate discrimination in the system’s

operation. See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977)

(Texas “key man” system).

9

denied, 423 U.S. 857 (1975); Simmons v. United

States, 406 F.2d 456, 462-463 (5th Cir.), cert. denied,

395 U.S. 982 (1969) (“[n]o significant improvement

in our nation’s federal judicial machinery has ever

met such unanimity of opinion as to its importance

and propriety as has adoption by the Congress of the

system of jury selection at random from voter regis-

tration lists”).

Particularly where, as in this case, the statistical

disparities are even lower than those considered in

Swain,’ there is no statutory requirement that voter

registration lists be supplementg from other sources.

As the Tenth Circuit stated in United States v. Evans,

542 F.2d 805, 812 (1976), cert. denied, 429 U.S. 1101

(1977), “the circuits are in complete agreement that

not only is the use of actual voter lists proper, but

that neither the Act nor the Constitution require[s]

that a supplemental source of names be added to voter

lists simply because an identifiable group votes in a

proportion lower than the rest of the population.”

Because petitioners have not established a prima facie

constitutional or statutory violation under any con-

The “absolute disparity” in Swain was, at minimum,

11%. The “comparative disparity” in Swain was, at mini-

mum, 42%. The comparable figures here are 9% and 31%.

By contrast, in Duren v. Missouri, supra, where the Court

found unconstitutional discrimination, women represented

54% of the community population but only 15% of those on

jury venires. 439 U.S. at 365-366. In Taylor v. Louisiana,

419 U.S. 522, 524 (1975), the corresponding figures were

53% and 10%. The “comparative disparity” in those cases

was, respectively, 72% and 81%—far in excess of the 831%

“comparative disparity” here.

10

ceivably relevant standard, this case does not present

a suitable occasion for this Court to consider which

of several available statistical tools is most useful in

evaluating challenges to jury selection methods.’

2. Petitioners also argue (79-1433 Pet. 18-23)

that the district court violated Fed. R. Crim P. 30 by

misleading them concerning the instructions the court

intended to give to the jury. This contention is

groundless.

At the close of the government’s case, petitioners

moved for a judgment of acquittal on the ground

that the government failed to prove that the mari-

juana involved in this case was the particular species

regulated under the Comprehensive Drug Abuse Pre-

vention and Control Act of 1970 (Tr. 678-685) .’° The

court denied petitioners’ motion, holding that the Act

proscribed “all types [of] Cannabis” (Tr. 685-686).

Petitioners then inquired if the court’s ruling meant

that they could not “still argue it” before the jury

(Tr. 687). The court replied (ibid.):

You mean as to whether this is marijuana?

Surely you can argue that. In fact, I’m going

® Petitioners urge that the court of appeals’ use of the “ab-

solute disparity” test could lead to incongruous results if the

underrepresented group were sufficiently small (79-1433 Pet.

14). As the court of appeals correctly noted (Pet. App. 15a),

however, the question of the proper test to apply when a

small minority is underrepresented is properly left to a case

presenting that fact situation.

10 The government presented an expert in forensic chemis-

try who testified that he had tested samples of the substance

involved in this case and had concluded that the substance

was marijuana (Tr. 601-606).

11

to charge that unless the Government proves be-

yond a reasonable doubt that that is marijuana

as defined and meant in the statute that the

defendants will be acquitted.

Petitioners began the defense case by presenting

an expert on forensic chemistry who testified that

Cannabis is a genus of which there are two and pos-

sibly three species and that the tests performed by

the government’s expert witness were insufficient to

determine whether the marijuana involved in this

case was sativa L. or some other species (Tr. 739-

745). Counsel later submitted a proposed instruc-

tion that repeated the definition of “marijuana” set

forth in 21 U.S.C. 802(15), 2.e., that the “term ‘mari-

huana’ means all parts of the plant Cannabis sativa

L.” The proposed instruction further stated that

petitioners should be acquitted if the government

did not prove that the substance involved was “mari-

huana” within this definition. A substantial part of

petitioners’ argument to the jury was based on the

theory that the government had failed to prove that

the substance involved was sativa L. and not some

other species of marijuana.

The court gave petitioners’ proposed instruction

that the government had the burden of proving be-

yond a reasonable doubt that the substance involved

was marijuana within the meaning of federal law,

i.e., “the plant botanically known as Cannabis sativa

L.” (Tr. 959). The court added, however, that “un-

der that law there is only one species of * * * mari-

juana. Marijuana as far as the law is concerned, is

not divided into species” (Tr. 960).

12

Fed. R. Crim. P. 30 requires the district court

to inform counsel, before closing arguments to the

jury, of the court’s proposed action on requested in-

structions. Petitioners maintain (79-1433 Pet. 7) that

the district court, by promising to instruct the jury

that petitioners could be convicted only if the govern-

ment proved that the substance was marijuana within

the statutory definition, “continued to treat the

[multi-species] question as if it were a factual mat-

ter to be considered by the jury,” and thereby preju-

dicially misled defense counsel. Taken in context,

however, the court’s remarks did not suggest that

the multi-species question was a matter for the jury

to resolve. The court had just finished ruling that

the statutory definition included “all types [of] Can-

nabis.” The question that the court promised to leave

to the jury was not whether the substance was a par-

ticular species of Cannabis, but whether it was Can-

nabis at all.”

In light of the court’s expressed reasons for deny-

ing petitioners’ motion for judgment of acquittal as

well as its subsequent statement that the statutory

definition “will go before the jury with my instruc-

tion” (Tr. 748), petitioners could not reasonably

have expected the court’s final instructions to leave

the multi-species question to the jury. If defense

11 Part of the testimony of petitioners’ expert was that the

tests performed by the government’s expert were inconclu-

sive for distinguishing Cannabis from other substances (Tr.

728-782, 734-738). Petitioners also attacked the government

expert’s expertise and the accuracy of his tests in cross-

examination (Tr. 607-637, 641-649, 655-668).

13

counsel had any lingering doubts on the subject they

could have been eliminated through a specific inquiry

to the court. Having made no such inquiry, peti-

tioners may not now argue that they were surprised

by the court’s instruction.”

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

WILLIAM G. OTIS

MARSHALL TAMOR GOLDING

May 1980 Attorneys

12 Tf there was any genuine surprise to defense counsel in

the court’s instruction, it was invited by counsels’ own in-

sistence on pressing an incorrect theory of defense. As the

court of appeals observed (Pet. App. 8a-9a), all courts of

appeals that have addressed the question have agreed that all

species of Cannabis are covered by the Comprehensive Drug

Abuse Prevention and Control Act of 1970. The district court

here adequately alerted counsel of its agreement with this set-

tled view. The court properly continued to permit evidence

concerning the chemical identity of the substance seized be-

cause of the legitimate possible defense that the substance

was not marijuana. Counsel’s asserted construction of the

court’s action as an indulgence of the improper “species the-

ory,” even after the court disavowed that theory, was a mis-

interpretation for which counsel, and not the court, was pri-

marily responsible.

W ©. &. coveeument painting orice; 1930 321081 334