Petition — Phillips v. United States

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Supreme Court of the United States

OCTOBER TERM, 1982

ALAN DALE PHILLIPS,

Petitioner

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

JOSEPH R. CAPRIO,Record Counsel

704 Main Street

P.0.8ex G

West Point,Virginia 23181

804-843-3656

For Petitioner Phillips

APPELLATE PRINTING SERVICES INC HERITAGE BLOG RICHMOND VA (804) 643-7789

QUESTIONS PRESENTED

I. Whether the lower court erred in

denying the defendant's motion to dis-

miss the indictment against him which

motion was based on prejudice to defen-

dant's constitutional rights to a fair

trial because of the discriminatory

composition and selection of grand

jury forepersons?

A, Do the Sixth Amendment and

the Jury Selection Act of 1968, 28

USC 1861, et seq, require that grand

jury foremen represent a "fair cross

section" of the community, just as

this representation is required in

grand and petic jury venires?

B, Does the “equal protection"

component of the Fifth Amendment due

process clause entitle a criminal de-

fendant to be tried on an indictment

which is returned by a grand jury which

is untainted by invidious discrimin-

ation and does this right encompass

the selection of the grand jury fore-

man.

TABLE OF CONTENTS

Questions Presented,....-+-+++++:: i

Table of Contents....... a ey iii

Table of Authorities.......s-e+eer: Vv

Reference to Opinion Below........ 1

Det OGL GEI OR. cok ch nc eos ve cess ces 1

Constitutional Provisions.,........ 2

Statement of Case........-eeeeeees 3

Reasons for Granting the Writ.,...

I. WHETHER THE LOWER COURT

ERRED IN DENYING THE DE-

FENDANT'S MOTION TO DIS-

MISS THE INDICTMENT

AGAINST HIM WHICH WAS

MOTION WAS BASED ON PRE-

JUDICE TO DEFENDANT'S

CONSTITUTIONAL RIGHTS TO

A FAIR TRIAL BECAUSE OF

THE DISCRIMINATORY COM-

POSITION AND SELECTION

OF GRAND JURY FOREPER-

a ee ae >)

A. DO THE SIXTH AMENDMENT

AND THE JURY SELECTION

aa a aer ACT OF 1968

USC , ET SEQ.

REQUIRE THAT GRAND JURY

FOREMEN REPRESENT A

"FAIR CROSS-SECTION"

OF THE COMMUNITY, JUST

AS THIS REPRESENTATION

233

IS REQUIRED IN GRAND

AND PETIT JURY VEN-

Te kk... io es 17

B. DOES THE “EQUAL PRO-

TECTION" COMPONENT

OF THE FIFTH AMEND-

MENT "DUE PROCESS"

CLAUSE ENTITLE A

CRIMINAL DEFENDANT

TO BE TRIED ON AN

INDICTMENT WHICH IS

RETURNED BY A GRAND

JURY WHICH IS UN-

TAINTED BY INVIDIOUS

DISCRIMINATION AND

DOES THIS RIGHT EN-

COMPASS THE SELECTION

OF THE GRAND JURY

FOREPERSON..... kee. 22

ee ee ee 34

Certificate of Service........... 35

Appendix Index,.......--seeeeeees 36

Appendix. ....csccesecns awe A.1-135

TABLE OF AUTHORITIES

CASES PAGES

Alexander v. Louisiana, 5.

G05 U.S. 625, 545-546 (1972).16,31

Arnold v. North Carolina,

oo UN ae 9. a @ S| 8 Re A ee Li

Atkins v. Texas

325, U.S. 398 OG) En 9

Ballard v. United States,

See ter. ses Ch94R6)..... S17

Billingsle Clayton,

385 . od’ is. 15- 16 (5th Cir.

1966), cert.den. 385 U.S. 1043 .9

Brooks v. Beto,

"66 F, ze C€5th Cir. 1966) cert.

den. 386 U.S. 975, reh den. 386

Oe BO cede esuses 10

Brown v. Allen,

eG Go. O43, 474 €19535)....... 10

Carter v. Green County

2e6 U.3.. 3240, 5e5_ S58 (1970)... $

Cassell v. Texas, 9

339 U.S, 282 ko) 5 Ea Rae «kU

Castaneda v. Partida,

Bee Oe CESPID. . ecw enews 7,26

29,32

Duren v. Missouri,

8 a a te NS a a ee Tie

20,29

TABLE OF AUTHORITIES

CASE

Eubanks v. Louisiana,

im. 2 3 ne

Fay Vv. New York

332 G.3. 761 299-300

Glasser V. United States,

Sa Uo ’

Guice Vv. Fortenberry,

661 F.2d L496 sth Cit.

Hernandez v. Texas

347 U.S. E15 17954). ...-:

Hill v. Texas,

Hoyt v. Florida,

368 U.S. sy. 50-60

Labat v. Bennett,

365 F.2d 698, 722 (5th

Cir. 1966), cert. den.

396 U.S. 991...-ceeeeress

Norris v. Alabama,

294 ONT a ws

Patton v. Mississi

Jaa U Bl. wees.

316 U.S. 400,405 (1942)....

PAGES

ee be

7,945

tle

6. i .73

ia,.0

11,16

TABLE OF AUTHORITIES

CASE PAGES

Peters v. Kiff,

ic? 0.8. 493, 305 (1972). .22

Pierre v, Louisiana,

$06 U.S. 354, 356 (1939). .10

Rose v. Mitchell,

443 U.S. 545 (1979)-----:: 22,23

Ross v. Texas,

SA, 6.8. Gi8 C1951).....: ao

Smith v. Texas

31) Us. 138 (1940). ey AB Be

Strauder v. West Virginia

100 U.S. 303 (1879)......: 12

Taylor v, Louisiana,

419 U.S. 522 (1975).-----: oa?

Thiel v. Southern Pac.R.R. Co,,

398 U.S. 217, 220 (1946).. 8

Turner v. Fouche,

396 U.S. 346,361 (1970)... i.

vii

TABLE OF AUTHORITIES

CASE PAGES

United States v. Breland,

522 F. Supp. 468, 474-475

20. 23.

25.27.32

United States v. Butera,

: 564. 370 (ist

Oe BP kc dcwccces LS

United States v. Perez-Hernandez

ip Op., N. SU-516),

31 Civ. kn 2110 (Lith Cir.

Beets 15, 1960)......... 23,25, 26

"29, 31, 32

United States v. Holman,

Sic &. sume. bisa, 1177

We Fae AO) ow cee ess 7.3738.

20.26.27 ,34

United States v. Jenison,

435 F. Supp. 655, 660

em WE. FOE. og owen v en 7.20.23;

ao 26.21 ,29, 25.34

United States v. Layton,

319 F. Supp. . OS

mo Gel. I9et)..... Sass 20

United States v. Manbeck,

514 F. Supp. 148, n. 10

ee Ee 21.29.44

Witeho . Peyton,

W.2ea fas (4th Cir.

Ce can dodin ann 10.11,16

Whitus v. Georgia,

3o5 U.S. i aoe, (i967)... 16

TABLE OF AUTHORITIES

CASE PAGES

Williams v. State of

~” Mississippi,

608 F. 2d 1021 (5th

Oe FO TT cc snne 24

REFERENCE TO OPINION BELOW

The opinion of the United States

Court of Appeals for the Fourth Cir-

cuit is United States v. Alan Dale

Phillips, No. 82-5212, unpublished,

Appendix A (A,1-5), argued December 10,

1982 and decided February 11, 1983.

JURISDICTION

The United States Court of Appeals

for the Fourth Circuit entered its

judgment on February 11, 1983, affir-

ming the United States District Court

for the Eastern District of Virginia,

Norfolk Division.

The jurisdiction of this Court is

invoked pursuant to 28 USC 1861, et

seq.

CONSTITUTIONAL PROVISIONS

AND STATUTES

The relevant provisions are: United

States Constitution, Amendment VI; 28

USC 1861, et seg. Each provision is

set out in full in Appendix F (A.134).

STATEMENT OF THE CASE

The Appellant, Alan Dale Phillips,

Was arrested on February 9, 1982. He

was subsequently indicted on February

8, 1982 for violating 21 U.S.C. 846

(drug conspiracy), 21 U.S.C. 841 (a)

(1) and (b) (1) (Possession with in-

tent to distribute) and 21 U.S.C, 952

(importing marijuana). On March 4,

1982, Appellant filed a motion to dis-

miss his indictment (See Appendix B,

A. 6 - 10 ) based on a discriminary

history of selecting grand jury fore-

persons in the Norfolk District.

After hearing testimony on March 31,

1982, The Honorable Richard B. Kellem

denied the motion on April 5, 1982,

(See Appendix E,. ,A.85-A.133) motion

was denied, the Appellant waived a

jury, plead not guilty and entered

into a written stipulation of the evi-

dence. He was found guilty by the

Honorable John MacKenize of the Dis-

trict Court for the Eastern District

of Virginia-Norfolk Division. Defend-

ant was sentenced to 6 years on 21

U.S.C. 846 (drug conspiracy), 6 years

on 2i°U.8.C. S6i te) (1) ond (h) (1)

(possession with intent to distribute)

and 5 years on 21 U,S,C, 952 (importing

marijuana). Notice of Appeal and

Assignment of Error were timely taken.

The Appellant's appeal is based

solely upon the denial of his pretrial

Motion to Dismiss Indictment against

him.

All the defendants indicted in

this matter submitted a joint Motion to

Dismiss the Indictment against them and

on March 31, 1982, at the hearing on

this motion, they introduced the testi-

mony of John Lamberth, a group dynamics

expert, who testified as to the exis-

tance of per se discrimination in the

selection of grand jury forepersons

and the effect this discrimination

had on the impartial effective repre-

sentation of the jury system in this

district. Reference is hereby made to

the transcript of that hearing and to

the twenty-two page statistical report

which was submitted to the court at

that hearing and which contained the

chronological-statistical breakdown

of grand jury forepersons over a nine

(9) year period, (See attached

Appendix D,, A.37-A.84).

REASONS FOR GRANTING THE WRIT

WHETHER THE LOWER COURT ERRED IN DE-

NEYING THE DEFENDANT'S MOTION TO DIS-

MISS THE INDICTMENT AGAINST HIM WHICH

MOTION WAS BASED ON PREJUDICE TO DE-

FENDANT'S CONSTITUTIONAL RIGHTS TO A

FAIR TRIAL BECAUSE OF THE DISCRIMINA-

TORY COMPOSITION AND SELECTION OF

GRAND JURY FOREPERSONS.

The Sixth Amendment and Jury Se-

lection and Service Act of 1968, 28

U.S.C. 1861, et seq, guarantees all

defendants in criminal cases a "speedy

and public trial by an impartial jury."

The requirement of an impartial grand

jury has been interpreted to mean a

jury composed of members drawn from a

"fair cross-section of the community.”

"There is a constitutional

right to a jury drawn from a

group which represents a

cross-section of the communi-

ty, And a cross-section of

the community includes persons

with varying economic and

social positions. Under our

Constitution, the jury is not

to be made the representative

of the most intelligent, the

most wealthy or the most suc-

cessful, nor of the least in-

telligent, the least wealthy,

or the least successful. It

is a democratic institution,

representative of all qualified

classes of people. Fay v. New

York, 352 U.S. 261, 799-300

(1947) (Murphy J, dissenting).

See also United States v. Jeni-

son, 485 F.Supp. 655, 660 (S.D.

Fla. 1979), Duren v. Missouri,

439 U.S. 357 (1979); Casteneda

vV. Partida, 430 U.S. 482 (1977):

and United States v. Holman, 510

— Aaya, £477 GHD. Fila.

981).

Our notions of what a proper jury

is have developed in harmony with our

basic concepts of a democratic society

and a representative government. For

it is part of the established tradi-

tion in the use of juries as instru-

ments of public justice that the jury

be a body truly representative of the

community. Smith v, Texas, 311 U.S.

138 (1940).

And, its exercise must always

accord with the fact that the

proper functioning of the jury

system, and indeed, our demo-

cracy itself, requires that the

jury be a "body truly represen-

tative of the community," and

not the organ of any special

group or class. If that require-

ment is observed, the officials

charged with choosing...jurors

may exercise some discretion to

the end that competent jurors

may be called. But they must

not allow the desire for com-

petent jurors to lead them into

selections which do not comport

with the concept of the jury as

a cross-section of the community.

Tendencies, no matter how slight,

toward the selection of jurors

by any method other than a pro-

cess which will insure a trial

by a representative group are

undermining processes weakening

the institution of jury trials

and should be sturdily resisted.

Glasser v. United States, 315

U.S. 60 (1942); See also Thiel

v. Southern R.R.Co., 328 U.S.

217, 220, (4996); Salierd v.

United States, 329 U.S. 187,

The reason behind the requirement

is, of course, the eradication of bias,

prejudice, unfairness and partiality.

The requirement is binding through the

"due process" and "equal protection"

clauses of the Fourteenth Amendment.

Billingsley v. Clayton, 359 F.76 i3,

15-16 (5th Cir. 1966), cert. den. 385

U.3. Sax.

No principle could be more firmly

established nor more basic to the Am-

erican system of justice than that a

jury must be a body truly representa-

tive to the community and the Supreme

Court has consistently so ruled;

Smith v, Texas, supra, 311 U.S. at 130;

Glasser v. United States, supra, 315

U.S, at 85-86; Atkins v, Texas, 325

U.S. at 220; Fay v. New York, supra,

332 U.S. at 229-300; Cassell v. Texas,

339 U.S. 282 (1950); Hernandez v.

Texas, 347 U.S. 475, (1954); Taylor

vy. Eouisiana, 619 U.S. 522, (1975).

That this principle applies

equally to Grand and Petit Juries has

been decided and affirmed in Carter v.

Green County, 396 U.S. 320, 557-558

(1970); Cassell v. Texas, supra, 339 U.

S. at 291; Brown v, Allen, 344 U.S. 443,

U.S. 354, 358, (1939); Alexander v.

Louisiana, 405 U.S. 625, 545-546 (1972)

(Douglas J, concurring); Brooks v. Beto,

$66 F. 2¢ 1 (Sth Cir. 1966), cert. den.

386 U.S. 975, reh.den. 386 U.S. 1043;

Witcher v. Peyton, 405 F.2d 725 (4th

Cir. 1969).

This Appellant does not maintain,

nor would case law support the proposi-

tion that a jury panel, Grand or Petit,

must be an accurate and complete repre-

sentation of all of the groups and ca-

tegories that comprise a modern heter-

geneous community, because fulfilling

such a requirement would be virtually

impossible. The case law is, however,

unmistakably clear that when the ex-

ite

istence of any definable class is shown

and it is further shown that class has

been systematically excluded from jury

service, not based on some reasonable

ground for such exclusion, the Four-

teenth Amendment's demands have been

violated. Hernandez v. Texas, supra,

347 U.S. at 478; Arnold v. North

Carolina, 376 nS. 773; (1964), Eubanks

v, Louisiana, 365 U.S. 584, (1958);

Norris v. Alabama, 294 ns, S67. (1935);

Patton v. Mississippi, 332 U.S. 463,

(1880), In short, "a jury is a demo-

cratic institution and as such must

be representative of all qualified

classes of people." Fay ¥: New York,

supra, 532 U.S. a+ 300; Witcher v-

Peyton, supra, 405 F.2d at 727; Labat

v. Bennett, 365 F.2d 698, 722 (5th Cir.

1966), cert, den, 386 U.S. 991.

tis

The case law which pioneered the

"exclusion" principal emanated, basi-

cally, from the struggle of black

people in the United States to achieve

equal status within the legal system.

It is not, therefore, surprising to

find that the mass of case law concer-

ning group exclusion from juries,

Grand and Petit, deals with the sys-

tematic exclusion of "Negroes." It

has now beyond doubt, however, that

the principles enunciated in those

cases are not restricted to the "white/

black" issue, but apply with equal

force and logic to any exclusion of a

"definable class" within the geograp-

hic area of selection:

Although the Court has had little

occasion to rule on the question

directly, it has been recognized

since Strauder v. West Virginia,

100 U.S. 303, (1879), that the

exclusion of a class of perons

from jury service on grounds

oh Gu

other than race or color may,

also deprive a defendant who is

a member of that class of the

constitutional guarantee of

equal protection of the laws.

The State of Texas would have us

hold that there are only two

classes-white and black- within

the contemplation of the Four-

teenth Amendment. The decisions

of this court do not support

that view...

Throughout our history differences

in race and color have defined

easily identifiable groups which

have at times required the aid

of the courts in securing equal

treatment under the laws. But

community prejudices are not

static, and from time to time

other differences from the com-

munity norm may define other

groups which need the same pro-

tection, Whether such a group

exists within a community is a

question of fact. When the

existence of a distinct class

is demonstrated, and it is further

shown that the laws, as written

or applied, single out that

class for different treatment

not based on some reasonable

classification, the guarantees

of the Constitution have been

violated. Hernandez v. Texas,

supra, 347 U.S. at G77-478

(Warren C.J.); Accord: Hoyt v.

Florida, 368 U.S. 57, 59-60,

(1961).

24.

Thus by substituting the names of

other classifications without our

society for the word "Negroes," as

found in the overwhelmning number of

applicable cases, the true thrust and

meaning of the Constitution's and

Court's commands can be more easily

and accurately understood.

Once a defendant can show an id-

entifiable group and that such group

is statistically underrepresented, then,

even without the presumption of discri-

mination which attaches to the jury

selector's failure to uncover the

source of competent jurors from all

significantly identifiable elements of

the community, the burden of proof

shifts to the government and it is in-

cumbent upon the government to show by

rebuttal evidence a constitutionally

ath.

acceptable explanation for the discre-

pancies which give rise to the infer-

ence to deliberate and intentional

discrimination. Alexander v. Louisi-

ana, 405 U.S. 625, 545-546, (1972),

Eubanks v, Louisiana, 356 U.S. 584,

587, (1958); Hernandez v. Texas, 347

U.S. 475, 460, (1955), Hill v. Texas,

316 U.S. 400, 405 (1942); Turner v.

Fouche, 396 U,S. 436, 361, (1970), See

Also: Cassell v. Texas, 339 U.S. 202,

(1950); Ross v. Texas, 341 U.S. 918,

(1951); Smith v, Texas, 311 U.S. 128,

130, (1940); Labat v. Bennett, 365 F.

2d 658, 719 (Sth Cir. 1966), cert. den,

386 U.S. 991; United States v. Butera,

420 F.2d 564, 570 (ist Cir. 1970). And

if the explanation of the government

is insufficient to constitutionally

justify the prima facie case of the

tS.

defendant, there need be no showing

of intent to discriminate as the intent

is presumed, Whitus v. Georgia, 385 U.S.

545, 552 (1967); Hernandez v. Texas,

347 U.S. 475 (1954); Alexander v.

Louteiansa, 605 0.8. 625, (1972):

Norris v. Alabama, 294 U.S. 587, 593,

(1935); Witcher v. Peyton, 405 F,2d

725, 730 (4th Cir. 1969) for it is not

intentional discrimination which is

the measure but only the methods em-

ployed and the actual results. Witcher

v. Peyton, supra, 405 F.2d at 730. Nor

is it necessary to show prejudice in

any individual case where a distinct

group is shown to have been systema-

tically excluded, for the injury..."is

not limited to the defendant - there

is injury to the jury system, to the

law as an institution, to the commun-

ity at large, and to the democratic

wii

een ee ee

ideal reflected in the process of our

courts," Ballard v. United States,

supra, 329 U.S. at 195.

A. Do the Sixth Amendment and

the Jury Selection and Ser-

vice Act of 1968, 28 USC

1861, et seq. require that

grand jury foremen repre-

sent a "fair cross-section"

of the community, just as

this representation is re-

quired in grand and petit

jury venires,

Even though few courts have ad-

dressed the question of whether the

"fair cross-section" analysis is ap-

plicable to the office of federal grand

jury foreman, and the Jury Selection

and Service Act of 1968 does not spec-

ifically refer to the office of grand

jury foreman, the court in United

States v, Holman, 510 F. Supp. 1175

(N.D, Fla. 1961) clearly indicated

that the "fair cross-section" test is

alia

applicable and set forth the test:

To prove that a Sixth Amendment vio-

ation has occurred in the context of

grand jury forepersons selection,

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 the office

of the grand jury person)...

is not fair and reasonable in

relation to the number of

such persons in the community;

and,

(3) That this underrepresen-

tation is due to the systema-

tic exclusion of the group in

the jury selection process,

Duren vs. Missouri, 439 0.8. 357,364,

(1979); United States vs. Holman,

supra, 510 F. Supp. i175, 11/77.

As with de facto discrimination

in the selection of grand and petit

jury members, so too a defendant who

charges discrimination in the selection

of grand jury forepersons is not re-

18.

quired to show bad faith, and a prima

facie showing may not be rebutted by

the government using proof of nondis-

criminatory intent, United States vs.

Jenison, 485 F. Supp. 655, 660, (S.D.

Fla. 1979); United States v. Holman,

supra at 1177-1178, Systematic dispro-

portion by itself will demonstrate an

infringement of defendant's rights

under the Sixth Amendment and the pro-

visions of the Jury Selection and Ser-

vice Act of 1968, 28 U.S.C, 1861,

et seq. United States v. Jenison, supra,

at 660.

"Once the defendants have made a

prima facie showing of substantial un-

derrepresentation, the state (govern-

ment) may only rebut the prima facie

case by showing that a significant

state interest is advanced by the pro-

cedure which results in the exclusion,

-19-

Duren v. Missouri," United States vs.

Holman, supra citing Duren v. Missouri,

supra, at 1178.

In the past the courts which have

adopted the government's position that

the protections of the Sixth Amend-

ment and Jury Selection Act's "fair

cross section" requirement are nct

applicable to the office of grand jury

foreperson, have always done so only

after the defendant was unable to fac-

tually show that the "impact of the

grand jury foreperson is so substan-

tial as to influence or alter the uni-

que qualities and characters of the

jury's individual members." See eg.

United States v. Layton, 519 F. Supp.

946, 957 (N.D. Cal. 1981); United

States v, Jenison, 485 F. Supp. 655,

661-662 (S.D. Fla. 1979); United

States v. Breland, 522 F. Supp. 468

-20-

474-475 (N.D. Ga. 1981),

Evidence sufficient to establish

that prima facie discrimination had

taken place in the selection of grand

jury forepersons in the grand juries

for the Norfolk Division of the United

States District Court for the Eastern

District of Virginia was presented

during the testimony of John Lamberth.

This testimony was given on March 31,

1982, at the hearing on the motion to

dismiss held before Honorable Richard

Kellam. For purposes of establishing

that such discrimination did exist and

the effects that such discrimination

has on the decision-making process of

the grand jury, specific reference is

made to Appendix C,A,11-36,which is a

true copy of that pre-trial motion

testimony.

The district court erred, then, in

-21-

not approving the defendant's Motion

to Dismiss in light of this evidence,

not only because of the requirements

of the Sixth Amendment and Jury Selec-

tion and Service Act of 1968, but also

because of the rules which this court

has ab initio established to prove

that such discrimination occurred.

Under the holding in Peters v, Kiff,

407 U.S. 493, 503 (1972); and Rose v.

Mitchell, 443 U.S. 545, (1979) this

indictment should have been dismissed

by the District Court.

B. Does the "equal protection"

component of the Fifth

Amendment "due process"

clause entitle a criminal

defendant to be tried on

an indictment which is re-

turned by a grand jury

which is untainted by in-

vidious discrimination

and does this right encom-

pass the selection of the

grand jury foreperson.

Regardless of how this court rules

regarding the defendant's claim that

the Sixth Amendment and Jury Selection

and Service Act were violated by the

underrepresentation of blacks and wo-

men as grand jury forepersons, and

that this underrepresentation had de-

monstratable impact on the jury pro-

cess in general and the potential out-

come of the grand jury which indicted

defendant in particular, this court

must still decide the defendant's

Fifth Amendment claims, See, United

States v. Perez-Hernandez, F.2d

, Slip Op., No. 80-5165, 31 Cr.

L. 2110 Cllth Cic., Aseii 15, T9362);

United States v. Jenison, supra;

United States v. Breland, supra.

In Rose v, Mitchell, the Supreme

Court assumed without deciding that

"discrimination with regard to the

selection of only the foreman requires

o2 3

that a subsequent conviction be set

aside, just as if the discrimination

proved had tainted the selection of the

entire jury venire," 443 U.S. at 55l

n. 4. That assumption has been accep-

ted twice by judges of Circuit Court

of Appeals, Guice v. Fortenberry, 661

F, 2d 496 (5th Cir. 1981) (en banc);

Williams v. State of Mississippi, 608

F.26 1021 (Sth Cir. 1979). “if con-

victions must be set aside because of

taint of the grand jury, we see no

reason to differentiate the result

because discrimination affected only

the foreman." Guice v, Fortenberry,

661 F.2d at 499. A government argu-

ment that cases, such as Rose v.

Mitchell, supra, only dealt with a

State grand jury procedure and not a

federal one and therefore is inappli-

cable to federal forepersons has been

sah.

eo ee

rejected by every court but one which

has expressly reached the issue. See

e.g. United States v. Perez-Hernandez,

supra at 886; United States v. Jenison,

supra at 661; United States v. Breland,

supra at 447.

In order to prevail in a Fifth

Amendment challenge, the defendant

must demonstrate purposeful exclusion

of cognizable classes from the office

of grand jury foreperson. Specifically,

to prove this prima facie case the

defendant must show:

(1) that the group allegedly

discriminated against is a re-

cognizable, distinct class

singled out for different treat-

ment under the laws, as written

or as applied;

(2) that the group has been sub-

stantially underrepresented

over a significant period of

time; and,

(3) that the selection proce-

dure is not racially neutral

or susceptible to being used

as a tool of discrimination.

Rose v. Mitchell, supra at 565; United

States v. Jenison, supra at 662; United

States v. Perez-Hernandez, supra at 887.

Accord: United States v, Holman, supra.

Castaneda v. Partida, 430 U.S. at 494.

Once a prima facie case is made by

the defendants, the burden shifts to

the government to rebut that prima

facie case, Rose v. Mitchell, supra

at 565, Castaneda v. Partida, supra

at 497; United States v, Jenison, supra

at 665; United States v, Perez-Hernan-

dez, supra at 887.

Using the above criteria, the de-

fendant makes a prima facie case as

follows: first, that the discrimination

has involved distinct and identifiable

classes.

There can be no dispute that women

and blacks have long been recognized as

distinct classes subject to different

oh.

treatment under the law. See Hernandez

v. Texas, 347 U.S. 675 (1994); Tavyior

v. Louisiana, supra at 531; United

States v. Jenison, supra at 662; United

States v, Manbeck, 514 F. Supp. 148

(1981); United States v. Holman, supra

at 1179; United States v. Breland,supra

at 478. Sufficient evidence was intro-

duced at the pre-trial hearing on the

Motion to Dismiss the Indictment to es-

tablish a substantial underrepresen-

tation of women over a significant

period of time.

Out of twenty-two grand jury fore-

persons selected over a nine year per-

iod, only three were women. In other

words, although forty-four percent of

the venire were women, only fourteen

percent of those selected to be fore-

persons were women. This dispartiy,

o27-

according to the expert introduced at

the pre-trial hearing and accepted by

the government as an expert in statis-

tical interpretation, has a chance of

occurring less that 8/1000, or less

than eight times in a thousand "one

would expect that this occurrence

could occur by chance." (Appendix C,A.

19-22). This disparity clearly satis-

fies the first part of the prima facie

test. See Turner v. Fouche, 396 U.S.

346 (1970).

Secondly, the facts and affidavit

introduced at the pre-trial hearing

(Appendix D,A.37-84) demonstrate that

this disparity continued over a signif-

icant period of time and therefore

affected the defendant's rights to

"equal protection" and "impartial sel-

ection of jurors" to which all defen-

dants are entitled under the United

- 28-

Constitution. The existence of this

disparity over so long a period of time

satisfies the second part of the prima

facie test. See Castaneda v. Partida,

supra; Duren v. Missouri, supra; United

States v. Perez-Hernandez, supra (5

years); United States v. Jenison, supra

at 663, n. 3 (5 years); United States

v. Manbeck, supra at 148 n.10(8 years).

In determining whether there was

an unconstitutional underrepresentation

of women, this Court should examine

the evidence introduced during the

pre-trial hearing. This testimony sets

forth the absolute and comparative

disparities that existed for women

during the relevant time frame.—~

_1/ In United States v. Jenison, supra

at 663, n. 5,0, the Court defined these

terms as follows:

Absolute disparity is "calculated

by substracting the percentage of

(a class) who served as grand jury fore-

persons fromthe percentage of (that

-29-

1 / continued:

Class) in the general population.”

Comparative disparity is "calcu-

lated by determining the percentage

difference between the minority com-

position in the office in question and

its proportion in the general popula-

tion.

Where, for example, blacks com-

prise twenty percent of the presump-

tively eligibles, their appearance on

ten percent of the venires can be view-

ed as a ten percent deviation under

the absolute view. Although the pre-

ferable view is that an absolute mea-

sure may, in certain circumstances, also

produce distorted results.

Clearly, the absolute measure

should not be inflexibly applied to

foreclose a prima facie case where its

utilization may distort the significant

of the figures shown. With the pre-

centages in this case the comparative

measure is least likely to distort the

significance of the deviation and most

likely to adequately protect the in-

terests of the selection system and

those who challenge it,

Finally, the method used by the

judges of the Eastern District of Vir-

ginia for selecting the forepersons was

and is susceptible to abuse. A judge

personally selected the foreperson

after the grand jury was empaneled.

Each judge, therefore, was able to de-

termine both the race and sex of the

grand jury members from either visual

observation or the questionaires filled

out by the grand jurors before he made

his selection. See Alexander v. Loui-

siana, supra at 630-632; Castaneda v.

Partida, supra at 495; United States

v. Holman, supra at 1179, United States

v. Manbeck, supra at 148; United States

v. Breland, supra at 478; United States

Jenison, supra at 663; Accord: United

States v. Perez-Hernandez, supra at

887,

The defendant at the pre-trial

hearing, therefore, established a prima

facie case of discrimination. The

burden then shifted to the government

to rebut that presumption of invidious

discrimination and of the significance

ao.

such discrimination had on the dec-

ision-making process of the grand jury.

At no time during the hearing or subse-

quently has the government discharged

its rebuttal burden. The government

introduced no testimony to explain or

justify the discrimination, No testi-

mony as to the guidelines used in se-

lecting the foreman has been given as

in United States v. Jenison, supra; or

United States v. Perez-Hernandez,

supra. This instant case presents

this court with a set of circumstances

more closely eligned to Turner v.

Fouche, supra, at 361, where arbitrary

stereotypes were used in the selection

process, (i.e. men are more able to

lead and control the grand jury).

As the court in United States v.

Perez-Hernandez, supra at 888, stated,

"Wad the record in this case shown

32.

that these judges abused their discre-

tion by selecting foremen without re-

gard to the (extensive and tack-re-

lated) criteria, or by excluding

equally qualified blacks and wormen,

then we would conclude that the pre-

sumptions established by the prima

facie test was not rebutted."

The defendant asserts that he in

this incident was provided the court

with the kind of evidence to establish

that the gender and racially neutral

selection procedures required by the

Fifth Amendment were not in fact app-

lied in a neutral manner. The defen-

dant accordingly asks this Court to

grant his motion to dismiss his indict-

ment and conviction on constitutional

grounds.

~i%

CONCLUSION

The Court has yet to decide this

particular issue and there exists now

a difference of opinion among the

Circuits and this should be resolved

by a ruling from this Court.

Respectfully submitted,

ALAN DALE PHILLIPS

Petitioner

Couns f etitioner:

Os ; prio, Record Counsel

JOSEPH RR. CAPRIO, F.C.

704 Main Street

ry. G. 50x G

West Point, VA 23181

CERTIFICATE OF SERVICE

I hereby certify that on this

‘Oo _ day of Whru. 1983,

three true and accurat opies of this

Petition for Writ of Certiorari to

the United States Court of Appeals for

the Fourth Circuit was mailed, first

class, postage prepaid, to the Office

of the Solicitor General, Department

APPENDIX

United States v, Phillips,

No. 82-5212 (4th Cir.

Oo ie hc ese A.l

United States v. Ravenel,

No.82-I2-N (4th Cir.

March 5, 1982)

Motion to Dismiss In-

ee a ee A.6

United States v. Alexander,et al

No. 82-14-N (4th Cir.

March 31, 1982)

Transcript, Record Ex-

certs, Testimony of John

Lamberth, March 31, 1982

SE A ee a A.il

United States v. Alexander, et al

No. 82-14-N (4th Cir.

March 31, 1982)

Pa TE ae a a A.37

United States v. Alexander,et al

No. 52-14-N (4th Cir.

March 31, 1982)

Order and Affidavits........ A.85

Constititutional Provisions

and Statutory Provisions..,...A.134

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5212

UNITED STATES OF AMERICA,

Appellant,

Vv.

ALAN DALE PHILLIPS

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA, AT NORFOLK

[ HON. JOHN A. MACKENTZE,

Chief District Judge]

Before

WIDENER and HALL, Circuit Judges

BUTZNER, Senior Circuit Judge

Joseph R. Caprio for Appellant,

William G. Otis, Special Assistant

United States Attorney (Elsie L. Munsell

United States Attorney, David P. Baugh,

Assistant United States Attorney, on

brief) for Appellee.

A.i

PER CURIAM:

The male defendant was indicted and

convicted of conspiracy to import, to

possess with intent to distribute and to

distribute marijuana; of possession with

intent to distribute; and of the import-

ation of marijuana, in volation respect-

ively of 21 U.S.C. §§ 846, 841 (a) (1)

and (b) (1), and 952.

His sole ‘claim on appeal is that

the past twenty-two grand juries in the

district consisted of 44% women; yet

those grand juries had only 14% fore-

ladies, the balance being foremen.

Because the judges of the district were

male and appointed the presiding offic-

ers of grand juries, he argues that the

statistics show a systematic exclusion

of women from the position of forelady.

See Rose v. Mitchell, 443 U.S. 545 (1979)

(exclusion of Negroes from grand and

A. 2

petit juries although the defendant was

white). He bases his argument upon the

due process clause.

The difficulty with defendant's

case is that the grand jury which in-

dicted him was presided over by a fore-

lady, not a foreman, so whatever ex-

clusion the selection process may have

resulted in the past was not present in

his case.

Even if we assume, since Rose v.

Mitchell states a constitutional rule,

that it applies to the presiding officer

of federal grand juries, and that it

applies to sex as well as race, Phillips,

nevertheless, has not brought himself

within the rule of Peters for he has not

alleged or proven any systematic ex-

clusion from the grand jury which indict-

ed him. In Peters the first sentence

of the opinion begins: "Petitioner

alleges that Negroes were systematic-

ally excluded from the grand jury which

indicted him. .. ." 407 U.S. at 494.

The opinion reiterates the claim:

the tribunals that indicted and con-

victed him were constituted in a manner

that is prohibited by the Constitution.

." 407 U.S. at 497. (Italics added.)

Because Phillips cannot prove any

exclusion of women from being the pre-

siding officer of the grand jury which

indicted him, the presiding officer of

the grand jury which indicted him being

a woman, his case must fail.

It may be true, as the defendant

argues, that other methods of selection

for the presiding officers of grand

juries, such as random choice or elec-

tion by the members thereof, would

make the system less susceptible to

constitutional attack, but we have no

A. 4

occasion to comment here on their use.

The judgment of the district court

is accordingly

AFFIRMED.

sce ae gic

pcg eee

a =e eS te

APPENDIX B

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA NORFOLK DIVISION

No. 82-14-N

UNITED STATES OF AMERICA,

Appellant,

Vv.

STEPHEN D, RAVENEL,

Defendant

MOTION TO DISMISS INDICTMENT

COMES NOW the Defendant, Stephen

D. Ravenel, by and through counsel, pur-

suant to the Fifth and Sixth Amendment

to the United States Constitution, 28

v.$.¢.. Section 1667 (a). @). (Ce), (@

and (e), Rule 6 of the Federal Rules of

Criminal Procedure and the Jury Plans of

the Eastern District of Virginia, re-

sepctively moves this Court for entry

of an Order dismissing the indictment

A. 6

herein and/or staying the proceedings

until such time a Grand Jury can be

selected in conformity with the law. In

support of this motion, the Defendant

states as follows:

1. Based on an initial inspection

of the Court's records, it appears that

of the eight (8) Grand Jury Foremean

which have been selected since March of

1979 of present, only one (1) black per-

son was selected and one (1) female was

selected. It further appears that of

nine (9) Deputy Foremen who were selec-

ted during the same period of time,

there were six (6) and possibly eight

(8) of those individuals who were white

and seven (7) of those individuals who

were male.

2. The Defendant alleges that

these figures demonstrate a pattern and

practice in the Eastern District of

. 7

Virginia which have resulted in substan-

tial noncompliance with the law and

authorize relief to the Defendant.

3. Even if the selection process

was not the result of invidious and

active discrimination, there has been

a substantial and statistically signifi-

cant underrepresentation of women and

non-whites selected as forepersons.

This underrepresentation is so grossly

disproportionate to these numbers in a

fair cross-section of the community

that they have been discriminated

against as a matter of law and the re-

quirement of foreperson representative-

ness has been breached.

4. As a result of the individual

cumulative and aggregate effects of the

foregoing, there has been substantial

failure to comply with the law in estab-

lished Grand Juries in this District,

all in violation of the Fifth and Sixth

Amendments to the United States Constit-

ution, the Jury Selection and Service

Act of 1968, as amended (28 U.S.C,,

Section 1861, et. seq.) and the local

plan of the United States District

Court of the Eastern District of Virgin-

ia, all requiring a dismissal of the

Indictment,

Prior to a hearing on the motion,

Defendant will file a Memorandum in sup-

port of this motion with supporting

statistical analysis and requests an

evidentiary hearing at a time certain.

STEPHEN D. RAVENEL

By/s/ John Zwerling

Of Counsel

John K. Zwerling

108 N. Columbus Street

Post Office Box 1929

Alexandria, Virginia 22313

CERTIFICATE

This is to certify that a true

copy of the foregoing was mailed to

David Baugh, Assistant United States

Attorney, on this 5th day of March,

1982.

/s/ John Zwerling

A. 10

APPENDIX C

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA

NORFOLK DIVISION

UNITED STATES OF AMERICA

vs.

JAMES DANIEL ALEXANDER, et al

No. 82-14-N

Testimony of John Lamberth

Norfolk, Virginia

March 31, 1982

Before HONORABLE RICHARD B. KELLAM,

Senior United States District

Judge

A.1l

JOHN LAMBERTH, called as a witness

by and on behalf of the defendants, hav-

ing been first duly sworn, was examined

and testified as follows:

MR. ZWERLING: Your Honor, I remind

the Court that Dr. Lamberth's vita was

submitted to the Court and counsel earl-

ier today.

THE COURT: Yes, sir. I‘1l accept

him as an expert without any question.

MR ZWERLING: Thank you, Your

Honor,

DIRECT EXAMINATION

BY MR. ZWERLING:

Q Doctor, I won't go through your

qualifications at this point inasmuch as

you've been accepted as an expert in

statistics and statistical analysis and

compilation.

I ask you if you are familiar with

attachments to the affidavit that was

A.12

filed, pages 1 through 22?

A Yes.

Q All right. Are those all of the

pages that are attached -- twenty-two

pages?

A Yes.

Q All right. Now, have you had an

opportunity to go over the information

contained in those pages?

A Yes, I have.

Q All right. And how many grand

juries do these figures reflect?

A They reflect twenty-two grand

juries,

Q And the selection of how many

foremen?

A Twenty-two.

Q Forepresons, I should say.

And how many veniremen are reflect-

ed from which the foremen were selected?

A If I may qualify that slightly,

A.L5

of those that wereable to determine sex

for -- and there were a couple--

THE COURT: You have to speak up.

I can't hear you, Doctor.

THE WITNESS: Of those that we

were able to determine the sex for,

501.

MR. ZWERLING: All right.

BY MR, ZWERIJING:

Q How many did you have question

about that you couldn't determine the

sex?

A We had -- I had question about

-- about two or three. It's --

Some of these say "excused," if

you -- if you look at the things, and

it's difficult to tell exactly.

A But the vast majority of people

are accounted for.

Q Two or three out of how many?

A.14

A 501 if the number I have.

Q Okay. If the two or three had

been all one sex, would that have made

any signigicant difference to your cal-

culations?

A If might have changed -- it

conceivably could have changed it by one

percent or could have changed the per-

centage of females or males by one per-

cent, and that would have been due to

rounding.

Q All right. Now, you're talking

about the number of females who were

members of this panel?

A Who are --

Yes, the number of females who are

members of the twenty-two separate grand

juries.

Q All right. Of the twenty-two

forepersons, how many of those were

women?

A.a3

A Three.

Q All right. Would it be fair to

say that nineteen were male?

a Fee.

Q Okay. Of the venire that you

were able to determine, how many of

those were women?

A How many?

There were 222 women.

Q All right. What is the percent-

age, rounded off to the nearest percent?

A Forty-four percent.

Q Allright. Of the venire, there

were forty-four percent women?

A That is correct.

Q And what is the percentage of

the forepresons who were women?

A Fourteen percent. -

Q And have you been able to deter-

mine, separate from the affidavit and

these things, these attachments, what

A.16

the population of women in the general

population -- what percentage of women

in the general population?

A Yes.

MR. BAUGH: Objection, Your Honor,

until we find out what general --

MR. ZWERLING: All right.

MR. BAUGH: -- population we're

talking about.

BY MR. ZWERLING:

Q Of Virginia?

MR. BAUGH: Objection, Your Honor,

relevancy.

The pool is not drawn from the

general population of the State of

Virginia,

BY MR. ZWERLING:

Q What about the Southeastern

Regional Planning District?

A Yes.

MR. BAUGH: Objection, Your Honor,

A.17

until such time as the parameters of

that district are determined.

MR. ZWERLING: Your Honor, I under-

stand the government's objection.

We're not relying on that. I was

just going to pat ourselves on the back

by showing the Court we took the lower

of the two figures, which was the per-

cent of the pool.

It's really not important.

BY MR. ZWERLING:

Q Dealing with the percentage of

actual number of women who were fore-

persons out of their relative population

in the venire, what is the absolute

disparity?

A Thirty percent.

Q Is it 30 percent underrepresent-

ation?

A Underrepresentation of women,

yes.

A.18

Q Ali right.

THE COURT: Of women as to what?

THE WITNESS: As forepersons of

the grand jury.

THE COURT: I know. But in what

area are you talking about?

Where were these figures derived

from?

THE WITNESS: The figures were

derived from the Newport and -- pardon

me -- Norfolk and Newport News Divisions

of -- of the -- I believe it's the

United States District Court for the

Eastern District of Virginia.

MR. ZWERLING: All right.

BY MR. ZWERLING:

Q Now, was there any major dis-

parity between the two different areas?

A No, no major disparity.

Q Now, what is the --

Is "statistical significance" a

A.19

term of art in the field that you are

an expert in?

A Yes. iG is.

Q Would you explain what that

term means when it is used?

A Yes. Statistical significance

means that when an event or series of

events occur, there is a probability

associated with them occurring by

chance. By all -- by conventions within

all of the social sciences, it is --

when an event could occur by chance

five times or less in a hundred, we

say that that is a significantly -- a

significant finding, and that is the

way we use "significance."

Q What is the statistical signi-

ficance of the 30 percent disparity in

representation that you've mentioned

before, based on the numbers that are

contained in these affidavits?

A.20

A The underrepresentation of women

is significant not at the five in a

hundred level or the 05 level, as we

call it, but at the 008 level, which is

eight less than eight times in a thous-

and would one expect that this occur-

rence could occur by chance.

Q Did you go back in Newport News

as far back as the clerks were able to

provide documents to you?

A Yes,

Q And the ten-year cutoff in

Norfolk, was that arbitrarily set?

A Yes.

MR. ZWERLING: I have no further

questions.

THE COURT: Let me inquire of one

or two, to be sure I understand it.

How many times did you say you

found a woman had been selected as fore-

man?

A.21

THE WITNESS: Can you wait a

moment ?

I did not compute deputy foreperson.

I can --

MR. ZWERLING: I would ask that

remark be stricken, Your Honor.

If his questions aren't relevant,

he shouldn't be asking them.

BY MR. BAUGH:

Q Sir, have you ever in your life,

for whatever purpose, made a determin-

ation as to how many votes a foreman or

a deputy foreman would have as to whe-

ther to true bill or no bill in relation

to other members of a grand jury?

A No.

MR. ZWERLING: I also would object,

Your Honor, to that question on rele-

vance. It doesn't matter whether they

have but one vote or no votes.

We don't have --

A.22

It's not a burden to show pre-

judice. It has been established by the

Supreme Court, the Fifth Circuit en

banc, quoting the Supreme Court, that

we have a three-part test to meet:

One, that there is -- there is a

group that we are complaining about

being underrepresented, that is, a

cognizable group, that is either based

on race, sex, national origin, et

cetera.

Certainly sex is one. He's

testified to that.

We then need to show that there is

a significant underrepresentation. And

the courts have picked out an arbitrary

10 percent absolute disparity. They've

also picked out a five precent chance

-- a one in twenty chance of it happen-

ing by chance to be significant --

statistically significant, and that

A.23

once we have established all three

things, that is all we have to show.

We don't have to show there was actual

prejudice to the defendant. We don't

have to show that he was even a member

of the minority that was being excluded.

We don't have to show that the foreman

voted or didn't vote or voted three

times to stuff the ballot box, or any-

thing else. We don't have to show that

because the Supreme Court's already

ruled that it is -- the constitutional

issue here, that is, a person have a

grand jury with a foreperson that is

selected in conformity with the due

process right, is so overwhelming --

THE COURT: Well, where is there

anything in the Constitution concerning

the selection of a foreman?

MR. BAUGH: I cannot find one case,

Your Honor, where it says that anybody

A,24

has a constitutional right to have a

member of a certain group or an even

representation of foremen. The act

refers to veniremen and members of the

pool.

MR. ZWERLING: Well, this is just

an objection to a question, Your Honor.

I don't want to argue the motion at this

point.

THE COURT: No, I--

MR. BAUGH: Well, Your Honor, I

would like to know --

THE COURT: What I don't understand

is what -- what is your complaint here

about the grand jury?

I must say I miss what you're

saying.

MR, ZWERLING: Your Honor, our

complaint if that the selection process,

which, in this jurisdiction, the fore-

person is selected by the judges, has

A,25

produced results where women have been

significantly underrepresented as fore-

persons, and it's our position that that

requires the Court to either dismiss

the indictment or require -- hold up

proceedings until a proper indictment

is had,

We rely on the Supreme Court case

of Castaneda versus Partida, 430 U.S.

482.

THE COURT: In that case they said

because there was not an equal repre-

sentation is selection of the foreman,

that the indictment had to be dismissed.

MR. ZWERLING: It says -- Let me

quote Guise, Your Honor, which deals

with this particular portion and quotes

the case.

It says: "The prerequisites for

federal relief from alleged discrimina-

tion in the selection of a grand jury to

A.26

establish --"

Ali right. in that case -- s0

that's the selection of a grand jury.

THE COURT: Yes,

MR. ZWERLING: All right. Now,

Guise talks about those three things in

relation to selection of the foreperson

and quotes Rose versus Mitchell for the

Supreme Court.

Rose versus Mitchell, 443 U.S. 545,

says: "Held the racial discrimination

in the selection of a grand jury and

its forman violates the Fourteenth

Amendment and requires the federal court

to grant habeas relief whenever --"

In that case it was even reversing

a state criminal conviction because it

brought in the Fourteenth Amendment.

It wasn't even solely under super-

visory powers.

So, clearly, it was of constitu-

Az?

tional dimension.

Guise, which is an en branc decis-

ion of the Fifth Circuit, November is.

1981, was a state conviction of individ-

uals challenging solely the selection of

the forepreson.

Now, I have -- if the Court wishes

not to consider this as precedent -- re-

quired to show prejudice, which I don't

think we need do -- I would also ask at

this time the witness be qualified, as

I think he would clearly be -- of course,

the Court doesn't know him -- but if

it's read his vitae, he would know he's

an expert in the dynamics of small group

decision-making and the effects of the

leader or foreperson in petit juries

and the leader in any small group -- the

dynamics of it, why there would be pre-

judice, if I need to, I don't think

it's required,

So I guess that's my objection to

the question, Your Honor.

THE COURT: All right. Any further

questions of the witness, then?

BY MR. BAUGH:

Q Have you ever served on a grand

jury?

A No,

Q Are you saying that the selec-

tion process, based on what you're see-

ing now, could not have happened --

mathematically could not have happened

at random?

A I'm saying that there's eight

chances in a thousand it could have

been -- it could have happened randomly,

and only eight in a thousand.

Q So you're not saying it couldn't

have happened?

A In the social sciences, when

we deal with

A.29

Q Do you expect it would be signi-

ficantly different from -- or do you

have --

A It very well might be, I mean,

when -- when --

Q All right. Well, let me -- let

me backtrack and I'll ask you this.

You have done studies in group

dynamics; is that correct?

A Yes.

Q You've taught that, have you?

A I teach sociology and group

dynamics as part of it.

Q Would you very briefly relate

to the Court what your expertise is in

decision-making, small group dynamics?

A Yes, For the last ten years my

research area has been in small group

decision-making, the influence of in-

dividuals in the group and who is the

most influential, with particular

A.30

emphasis upon petit juries.

THE COURT: Well, you ascribe to

that saying that one man with -- one

man with courage is a majority or one

person with courage -- excuse me -- one

person with courage is a majority.

THE WITNESS: I -- I -- I think

there are a few of those people still

around but not a great many.

MR. ZWERLING: Your Honor, I would

offer him as an expert in that field,

sociology --

THE COURT: I'll be glad for him

to answer any question in the world you

wish for him to,

BY MR. ZWERLING:

Q In your expert opinion, do your

feel that the selection of a foreman as

opposed to deputy foreman -- the selec-

tion of the foreman -- has an influence

over and above that of just being one

A.31

vote on a grand jury?

A Yes, without a doubt,

Q And more so than that of a

deputy foreperson or a secretary?

A Yes,

MR. ZWERLING: I have no further

questions,

MR. BAUGH: Just a few brief

questions,

RECROSS-EXAMINATION

BY MR, BAUGH:

Q You just said that based on

your experience, the person being the

foreman or deputy foreman has -- that

that title would give them power -- the

gist of it is?

A Ho, that is not what I said.

Q Well, then, give it back to me.

A I said that the person who was

foreman would have a great deal more

influence than would another member of

A,32

the grand jury.

Q Influence over what?

A Influence over people in the

grand jury.

Q Do you know what a foreman or

a deputy foreman does?

Do you know what a foreman or a

deputy foreman does?

A I know what their duties are

prescribed to be. I do not --

Q Do you --

A I've never been in a grand jury.

Q Tell me what their duties are

and how their duties differ from a

regular, ordinary, old, run-of-the-mill

field hand grand juror.

A They are to administrate. To

the extent that they are the leader of

the group, they recognize people within

the grand jury to ask questions. They

are the individual who is to be called

A.33

upon when a grand jury cannot be there,

and what I am reading -- what I am

reciting to you now is actually the

Third Circuit's rules on -- on fore-

persons of grand juries and I may be

making some mistakes as to how you do

it in the Fourth Circuit. It may be

somewhat different, But, in general,

they are the administrative leader of

the grand jury to the extent that they

are the person who's in charge of making

sure that it moves smoothly.

Q And does it follow, sir, that

the more adminsterial power or responsi-

bility that person has, the more influ-

ence they would have?

A Let me respond by saying that in

the -- in my research and in the re-

search of other people in the field of

sociology, particularly Professor

Zeisel (phonetic), who is both a sociol-

A. 34

ologist and lawyer, and Professor

McCullers (phonetic), who is a sociol-

ogist, the finding is consistently that

in small group work the leader of that

group has influence that is three to

four times the influence of any other

idividual within the group.

Q What causes the variable --

three to fourt times?

Is one of the factors in determining

the variable the amount of adminstrative

duties the person has?

A You are asking me what causes it,

and I will give you my opinion.

My opinion is that in a grand jury

it is caused by the power that is attrib-

uted to the individual by the fact that

they were indeed appointed by a judge.

They not only are the leader of

that group, but indeed they are not an

elected leader but one appointed by a

Aso

judge.

Q And, of course, that has more

impact than if you're elected by the

group?

A Yes.

Q All right. Have you ever found

a district where

APPENDIX D

AFFIDAVIT

Filed March 31, 1982

Lloyd J. Parker, Jr,, Esquire, duly

sworn, and upon his oath says:

l. The Clerk of the Court of the

United States District Court for the

Eastern District of Virginia provided

me with lists of the names of each grand

jury which had been impaneled and sat

from April 9, 1973 to the present, for

the Norfolk Division.

2. For the Newport News Division

the Clerk provided the name of each

grand jury which had been paneled and

sat from August, 1976 to the present.

3. The Clerk also provided me with

corresponding questionaires completed

by each of the said grand jurors (with

the exception of the 1977 questionaires,

which, as to the Norfolk Division were

A,37

not located).

4. From the information gathered

from the above records, I identified the

race and sex of the grand jurors on the

attached twenty-two sheets as accurately

and faithfully as possible.

/s/ John J. Parker, Jr.

Subscribed and sworn to before me this

3lst day of March, 1982.

/s/George R. Old

Notary Public

Commission expires: 2/12/84

A, 38

GRAND JURY - APRIL 19TH, 1973

A.39

mR. Braxton Hill, Jr., 9 10 tl. iz SB

Foreman rrr

See,

Donald E. Childress, Sr. ~v ~~ M

John J. Creech OA ei stil M

. Elsie R. Garrison Mew F

John H. Gibbs nw M

Gracie M. Holland vs eae F

Earl W. Jones vee 6

. Larry K. Kowalsky ee M

. Marva Langaster wee | FF

. Norma Lankford vs ae F

Jackie Ray Murphy Absent F

Lois M. Nelson Excused F

Sylvia B, Norman v el F

. John M. Parsons ad ill M

. Clarence E. Reutlinger Excused M

. Robert M. Rice "al vi alee M

. Maxine Sampson ge F

20.

Marion K. Seebo

Bette Anne Shepherd

Myron F. Spring, Sr.

Richard R. Stringer

A,40

9 16 ti i2Z

ww et ww FF

we §

ree

Co Oo NUN OT VM eS Ww Nl hCUe

ee el =

os uw OO UM eF WS NH OH

. Dorothy Mae Moseley

. William H, Pate

GRAND JURY - SEPTEMBER 10, 1973

Deputy Foreman

Foreman

10 11 12 13 3

Beatrice Anderson Swwww *t

James G, Bishop yur wv a

Beastun Bobbitt. Ic. Vw Ver &

Isabell M. Buchanan verre oe

Barbara A. Carter iat pg F

Geroge C, Daniels "hol hs M

Robert A. Greer wwrrw a

- Peedence L. Henty ow’ wr’ we CF

st etn twee OO UH

. Charles H. McCoy, Jr. vw ea

mechan ¢. Pecle. Se. ww Ve NM

. Thelma N. Perry

Melchizedek Plummer, Sr!

Julia C. Rodgers

. Dennis H. Sanderlin

. Doris J. Smith

A,41

Le.

20.

ra ae

Bernard A.

Hiram G. White,

Sue R. Dix

Assistant

Foreman

Burton C.

Nettie P.

Wright

Deputy

Riedel,

White

*Court designated Sue

Oo 14 22 15 16

rr]

Dixon as Asst.

Deputy Foreman (oath readminstered).

A.42

GRAND JURY - JUNE 15, 1977

, John B. Moore,

Foreman

Eleanor C. McLean,

Deputy Foreman

Margrette A, Adams

Nora E. Arrington

Edward Barnes, Jr,

Martha H. Boone

Doris Bright

. Edna S, Bunting

Ira W, Carter

. Marguerite C. Cobb

. William M, Crace

. James M. Davis

. William H. Godley

. Harrell W, Hall, Jr,

. Vickie E. Harris

. Clyde A. Hughes, Sr.

Ida M. Johnson

. Joseph J. Lahouchuc

A.43

15 16

ye’

Vay

ww f

YOM

at a

Yu F

Jw t

yw x

Excused ?M

vue M

yw.

Vv MM

YUM

Vu F

Jv"

vv *

VV M

ae.

20.

Ze.

24.

Juanita A. Noble

Bennie 0. Parke

Robert K. Rickert

Dolres J. Smith

Roy P. Williamson

Charles E. Ryan

i oi

June 15, 1977 - 10:00 to 5:00

June 16, 1977 - 10:00 to 4:00

6/16/77 Jurors

excused subject to

eal.

A,44

is is

wiew

JO x

wv «

Vw oF

J// wy

GRAND JURY - SEPTEMBER 21, 1977

. Guy V. Mallonee,

Foreman

. Richard A. Kavanaugh,

Deputy Foreman

3. Eugene W. Alley

4, Midlred G. Basnight

5. Doyce D, Berry

Walter G. Bryan

. Robert E. Delong

, Jules J. Freeman

. Gloria B. Heflin

10.Carolyn E. Giles

11.Mary Ann Krzak

12.William L. O'Connell

13.Rena L. Parker

14.Lindsay 0. Piland

15,Emma Rhodes

16.Henry C. Roughton

17.Michael J. Simcisko

18. Mary F. Stowe

A.45

2. ae

Hw =

“MYM

Aw F

VY F

AY M

MY M

ExcusedY O M

YU F

wit

MY F

“aM

“YM

“Mw M

M/F

19.

20.

ae.

Loraine Tennefoss

Vernon W. Turpin

Lawrence W. Wheeler

Jack M. Bailey

A.46

ae oe

ww" FF

-wM

“uM

GRAND JURY - NOVEMBER 13, 1978

1. Ronnie L. White, > 14

Foreman

2. Betty J. Eisele, a a

Deputy Foreman

3. Marie K, Armstrong wm F

4. Roy G, Barnes, Jr. ~ M

5, Frederick F. Bennie “MM

6. Ann C, Boothe - Sick a Ff

7, John C, Cherry —M

8, Thomas F, Crews : “MM

9. Harvard G. Dotson —M

10.Helen J. Friedman we

11.David W, Hesson - F

12. Rosita T. Hopkins Excused OF

13. Linda V. Jackson “ F

14.Michael D, McCall ~™M

15.Donald L. Manley uM

16,John J. Nichols “M

17,Mary Parham will J

18.Tyler Phillips “™M

A,47

19. Mary G. Ragin wv F

20. Herta E. Russell ie

21. Mary R. Slaughter vw F

22. Alphonso W, Stukes uw M

23. Gerald E. Thompson “mM

M = 12

F = 10

11/13/78

9:30 a,m. to 4:00 p.m.

Grand jurors

excused subject to

call

A.48

GRAND JURY - MONDAY, JULY 14, 1975

. H. Paige Watkinson

Foreman

William L. Adams

Frederick B. Baines

Alice P. Bell

Freda R. Brunson

Constance Boyd

Carol E. Carter,

Deputy Foreman

Mary B, Coleman

. Beatrice D. Fineman

.Roy Willis Green

. Mildred M. Hughes

.Magdalene H. Johnston

14,

Ao.

16.

17,

18,

19.

William E. Mann

Anthony P. Pittas

Freddie Rawls

Elizabeth A. Sellars

Roger Lee Stewart

Larry Vellines

C. W. Whitehurst

A.49

20. Howard H. McKenzie —“ u— WM

W= 12

B= 6

F = 9

M= 11

Note 7/15/75

Carol E. Carter - appt'd Deputy Foreman

(oath adminstered)

713/75

Grand Jurors excused subject to call.

A.50

oo owvsonawne F-—} Ww WW

~~. 6 6Cl«@

~~ —-

— WW bd

~~ +

oo w Oo

.Magdalene H, Johnston

GRAND JURY - SEPTEMBER 9, 1974

9 10

. William L, Adams ne

Frederick 3B. Baines —_

Alice P. Bell vail

Constance A. Boyd ill anil

Freda H. Brunson -_/.

Mary B, Coleman

. Carol E. Carter

Dorothy Lee Dilday Excused it a

Beatrice D. Fineman itl. tll

.Roy Willis Green Oe A

.Robert Spencer Hill, Absent,RGLé to

Issue

.Mildred Mae Hughes ar

.Nellie Elizabeth King ,Absent “Rule to

Issue

~ x

.Edwin Marion Leidholdt Excused for

Term

.William E, Mann wo

.Howard G. McKenzie a aw”

. Mildred M. Montgomery —

Deputy Foreman

A.51

19.Anthony P. Pittas “on

20.Elizabeth A. Sellars oe tr

21.Roger Lee Stewart

22.Larry Wilson Vellines will ll

23.H. Paige Watkinson ae

Foreman

24.C.W. Whitehurst aa

“no

25.Freddie Rawls

Etta-

*Re-Rule (Hill) Dismissed 9/10/74 (RBK)

Jurors to remain availabe if later need-

ed- Excused subject to call.

*k Re-Rule (King) Dismissed 9/10/74 (RBK)

Jurors to remain available if later need-

ed. Excused subject to call.

A.52

GRAND JURY - MAY 6, 1975

eres

1. Robert J. Morrison vwrur WM

Foreman

2. Edith S$. Eichelberger “ wuyue WF

Deputy Foreman

3. Marie Anna Adams cf utiutut We

4. Larry D. Bailey sruweu WM

5S. J. BE. Beale Yuvwe WM

6. Franklin P. Bowden “wwe WM

7. Niles L, Carr “ere WM

8. Donnovan R. Colonna Yue WM

9. Lee Roy Dixon “eur WM

10.Kemper J. Gilbert “Mreur WM

1ll.Hannah M. Hawes

12.Mace M. Hurwitz

13.Elijah M. Jones

14.Leona S.

15.Edith B.

16,Nancy N.

17.James H.

Kelley

Lodge

McAdoo

O'Berry

18.Alma R. Robinson

A.53

19.Martin Swain “ve WM

20.Herbert T. Toby A“ vw BM

21.Robert F. Wilson “Yeu WM

W= 18

Be 3

F = 7

M= 14

249/75

Etta - Jurors excused until Monday, June

23, i972 €t 9:30 a.m.

Please send notices

Ray

5/6/75 - 8hrs.

S/7i75 + Shere.

5/8/75 - 8hrs.

5/9/75 - 7hrs.

A.54

GRAND JURY - SEPTEMBER 8, 1975

. John H. Babb

. Rawlings M. Barrett

. William E. Berry

. Patricia A. Bowman

Joyce T. Brown

. Billy W. Chaplain

. Joseph F. Condon

. Helen W. Davis

. John Daniel Downing

10.Thomas K. French

1l. Anna M. Gilman

12.Edna T. Guill

13.George M. Harris

14.Charlie B. Holcomb

15.Fanny Humphreys

16,Irving C. Jernigan, Foreman

17.Pauline D. Jones

18.Margaret F, Keller

19.Helen W. Kutz,Deputy Foreman

A.35

20,

aa.

24.

a3.

26.

ai.

28.

29.

30.

ake

ae.

33.

34.

aes

36,

James M. Leonard / WM

Kenneth L. Lueke, Jr. / WM

Christeen M. Motley / WF

Julian P. Nixon A WM

Suzanne K. Parker

Virginia B, Pritchard

Aaron C. Ricks

Ellen M. Schmitt

Ramon L. Smouse

Lawrence J. Steinberg

James 8. Talbot

William D. Thompson

Oliver S. Tyner

Herman Ward

Fred W. Westmoreland

Nancy E. Aley

Bobby C. Crawford, Police Officer

Excused for Term

Nathaniel H. Simon

nt i

#24 thru #37 Excused subject to call

All Grand Jurors have been sworn

A.56

GRAND JURY - SEPTEMBER 13, 1976

£2 48 45

1. Raymond Allen ow oe

2. Inez D. Baker, Foreman - ail

3. Don G. Beek a

4. Connie D. Bonniwell yi oll oa

5. Ann E, Canady i oe

6. Coy Allen Clerk, Deputy ~ “=

Foreman

7. Margaret L. Coughenour “ —“ 4~

9. Dorothy Dorer ee

10.Diane E. Schuler a i ll

11.Marjorie L. Johnson ~~ - ©

12.Irvin Hendrick a ot of

13.Francis P. Horner a of

14.Leroy R. James ri

15, Robert C. Kelton oe

16. Horace F. Lancaster tu

17. Elisa M. Lilienthal a te lll

2942 49 8

Fae

18. Cecil F. Mohler, Jr. av ew

A.37

a9.

20.

22.

rs f

24.

43 34 55

Clifford M. Parker nt bo

Patricia L. Phillips Yue

Rosemary K. Rainey ce

Mary G. Ripley ee i ail

Joseph G, Shimandle aa ell

Pecolia Y. Smith rr

2499 9 8

oC ff at OO OOSlhlURmhlUNmDULN COU

—)

SE a ne a

eS ee

.Harold L. Hagans

GRAND JURY - JANUARY 9. i979

Thomas D. Anthony /5 —

Mattie M. Baynard aw

Frank W. Black

Morris W. Branch A”

Harvey W. Brown al il

James W. Burgess

Steven A. Carila

Connie D, Chay

William R. Coleman

.Harold W. Danklefs, Deputyw

Foreman

.Henry R. Defelice Gu

.James E. Downs 10”

.Annette G. Ebron

Belva L,T. Eure 7”

.Richard H. Fitton, Jr,

.Betty B, Freeland

Ava L. Gilman 3”

.Martha Connell Green

A.59

2 9

2 8

39.

40. Evelyn D. Sanderson U—

. Frances M, Holland

. Gladys N, James

. Gladys H, Major

. Edward H, Morgan

. Dale C. Hudson

. Pamela P. Gray Sv

ria

. Lucille King Johnson

. Robert G. Joynes au

. James D. Kirchner

. Linda J, Latta

. Herbert L. Ling 1

Lau

. James L. McMillan +“

. Linda S. Massengill

Joyce L. Miller

. Lois Napier ta

- Ralph W. Oliver, Jr.

. Irene Patterson

3U, Roay_N Riereé \_— Excused

38. Joseph Preziotti, Jr.

Robert W. Roach 1#™

A.60

2 8

41. James H. Scott now WM

42, Thomas M. Smith

43. Frank G. Stevens, Jr,

44. Myron R. Tauchen

45. Benjamin W, Ward

46. Bessie D. Williams

47. Morris V. Winston

48 ie\M. e

49. Tamara D. Updegraff Moving WF

F = 12

M = 18

W = 23

B= 6

Jurors not serving excused subject to

call.

Net = 23 jurors serving reported

1/9/79 and 1/10/79

A.61

18,

GRAND JURY - JANUARY 14, 1979

Louis G. Plummer, Foreman

. William H. Barba, Deputy

Foreman

Walter H. Bell

Ivison H. Buchanan

John T, Camper

James W. Cole

Arthur D. Cross

Paul L. Duke

Helen L. Elliott

.John E. Foxwell

Albert R, Hartley

.Gwendolyn F. Johnson

.Gordon R. Joyner

.Richard C. Klein

.Lonnie P. Longtin

.Bennie L. Marshall

Kathleen W. Myron

.Raymond S. Orne

A.62

14 15

“vw

~ WM

“uw 2M

“~ “WM

“uv WM

vu WM

“~~ WM

“wv WM

“v BF

oO WM

“—-— WM

uv“ — WM

wwiF

~u WM

-— WM

uy BF

“vu WF

“uw WM

20,Marthyn M. Quinn

21.Sylvester G. Richardson

22.Winifred J. Snyder

23.Nancy R. O. Wright

oe Ss

A.63

16 15

“vc WF

— — WM

Me WF

“we WF

GRAND JURY - MARCH 26, 1979

. Lillie H. Barkow

. James H. Biggs Excused

. Mary Ann Cahill

. Richard A, Cook

5, Lavon G. Curles

6. Wanda Marie Dayton

7. Ted R, Draughn

8. John A. Feres, Foreman

9. Frances A. Golding

10.Shirley R, Gurganus

11.Benjamin Harris

12.Columbus Hill, Deputy Foreman

13,LeRoy H. Jacobs

14,Emma R. Kennedy

15.Mary Lee McElhiney

16.Norma L, Patterson

17,Herman Shepard Riley

18.Alma W. Saunders

19.William H. Sheavly

20. Abby J. Thompson Reserve

A.64

2494 9 8 a a a a

an.

43.

24.

aa:

26,

28,

Robert H. White, Jr.

.James M. Wunderle, Jr.

Theresa L. Fremd Excused

Vonzola M. Johnson Absent

Martha C. Langhorne

Lester L, Liverman Reserve

Margaret E. Smith

Clara L. Tyler

woe

How

A.65

Le.

14,

16.

18.

19.

20.

GRAND JURY - JUNE 8, 1981

. Eugene P. Lanning, Foreman

Richard L. Limerick, Deputy

Foreman

Willie Barber

Brenda L. Battle

John D. Brockman

Josie F. Davis

. Marion L. Dillard

Mary L. Earley

. James W, Evans

.Jean 0. Flaherty

.Marion H. Green

Donna C. Hollowell

Brenda J. Hudson

Frank L. Jamison, Jr.

Sheila F, Magee

Mildred Norman

Albert Padilla

Robert W, Rhodes, Jr.

Delores E, Rodman

Herman D. Sawyer

A. 66

297RER § 8

21. Eunice B, Shaw BF

22. Annie B, Taylor WF

23. Lawrence E. Towndrow WM

F =

GRAND JURY - JUNE 10, 1980

1. Gerhard W, Schlierf, Foreman

2, DonaldR. Evans, Deputy

Forman

. Martha J. Baugher

. Joseph A, Bradshaw

Elbridge J, Brown

Robert E. Chapman

Bruce D. Crawford

A, | | ee ee

Virginia S. Darden

9. Margie E. Durham

10,Cora W. Flemming

11.William E. Glenn

12,Ralph A. Hardy

13.Russell Johnson, Jr. Absent

14,Michael W. Kittrell

15.Virginia A. McCormick

16.Paul S. Manby

17,Reuben L. Miller

18,Therese Richards

19.Carl M. Rose

A. 68

20.

22.

Carlton W. Spruill

Doris K. Thompson

Edward R. Ullom, III

Charlie B. Ward

"ow

nou

lool

A.69

GRAND JURY - MARCH 8, 1982

1. Joseph H. Simons, Jr., BM

Foreman

2. Diana M. Hickman, Deputy WF

Foreman

3. Alistelle P. Bloom WF

4, Archie L. Bradford WM

5. Jean J. Brooks BF

6. Gloria B, Bunting WF

7. Lenora Chirsitan ?F

8, Luke Constatnimdes WM

9. Particia H. Davis WF

10.Betty G, Doll WF

11.Barbara B. Fuller BF

12.Edith R. Harrison Til

13.Lorine C, Hull WF

14.C. R. Jennette WM

15.Debra A. Mallon ?F

16.Joyce K. Martin BF

17,Melba M. Miller WF

18,Mary Lou Nichols ?F

19.Agnes H. Peffer WF

20.Norman Potts

21.Marjorie L. Steed

22.Donald R. Townes

23.Fern Williams

wet <7

“ou

Excused subject to call

A.71

GRAND JURY - APRIL 14, 1982

. Betty D. Romulus, Foreman

. Garland E. Jackson, Deputy

Foreman

Thomas A. Baskerville

Raymond V. Bierbaum

Richard M. Byrd

Clifford J. Cowley

. Margaret P. Dewald

Samuel M. Ellyson

Particia B. Filipowski

.Catherine B. Hobbs

.Alvah V. Jones

.Cassie A. O'Brien

. Deborah Parker

. Jean K. Pfaehler

. Almer E. Plemons

. Bernice Reynolds

. Dorothy R. Shepherd

. Erma L. Smith

. Hazel S. Stringfellow

. Hazel D. Tyler

21. Donna K. West WF

22. Jeffrey G, Wilda 2M

we I

rh 48

rw) 7

A.73

Do FP BF BF BF FP YF PF FP KF FY © oO Ns

oo wu oe uw oO UW + UW NN OS 6S roe Se Pe ee

GRAND JURY - APRIL 27, 1982

Charles R. Kilmon, Foreman

. Cecilia D. Vail, Deputy Foremen

Evelyn C. Allen

Nancy F. Besso

Anna S. Brink

Terry W. Brumley

Milton Crawford

Carlton M. Davenport

. Caroline T. Diniz

.Marvin B. Frye

.Nancy O. Hart

.George E. Higson, Jr.

.Geraldine H. Jones

.Charles M, Jordan

.Sharon D. McRae

.Thomas L, Musser

.Leonard W, Saunders

.Elbert W. Sherrill

.Irene M. Smith

.Mary L. Spurgeon

A.74

21, Margaret G. Sullivan WF

22. Sylvia J. Thomson WF

23. Kenneth Williams BM

F = 12

W= ll

W = 18

Be 3

A.75

AUGUST 9, 1976 - FEBRUARY 14,

Hermine B. Alhea, Deputy

Foreman

C, William Blake

William C. Britton

Shirley Adams Burney

Rodney Miles Coleman

Eugene W. Crisp, Sr.

Samuel M. Derr

Fred M. Flanary

William M. Garrett, Foreman

. Felton S. Graham

. William C. Holloway

William C. Keatts

. Ralph D. Lane

. Joan M. Lipka

. Lawrence J, Marr

. Hampton L. Meskins

Pearl T. Moore

. Richard Ogle

. Charles W. Robertson

. Estes D. Sanders

A.76

oles

FRE RG RERERARR REE EEE

21. Maurice L. Sison

22. Frank A. Tolliver

23, Gary Q. Williams

A.77

August, 1977 - July, 1978

Mattie B. Armstead

Paul W. Bassett, Sr.

Dep. Foreman

Elmo H. Bloxom

Foreman

Alnen J. Christensen

Wilbur H. Crawford

Lawrence A. Deaner

James F,. Dunn

William E. Ferguson

Shirley Mae Barcia

Regina R. Holmes

Wilbur M. Hurst

Terry R. Johnson

Nancy T. Kent

Martha D. Leclere

Edward C. Lumpkin

Julian D. McClenney

Stephen Miller

(Excused by Court)

Joy L. Mettey

A.78

~~ @ ££ 2 2G US UE! CUS

a ee

}

_ nancial Teeter ate ats

19.

20.

ai.

y a

23.

24.

Rebecca A. Osborne

Shirley D. Peters

James A. Pucci

(Excused by Court)

Robert G. Robb, Jr.

Alice M. Toliner

Janey P. Webb

Joyce Y. Williams

M = 12

F@ ii

A.79

- Se a

a a i <

August, 1978 - 1979

1, William A. Bailes WM

2. David Lee Bell WM

3. Elizabeth Boyd WF

4. Joseph T, Bulatewicz WM |

5. Helen Jones Carter WF

6. James W. Cofer Unknown

7. Blaine B. Franklin W F

8. Thomas F. Goshell WM

Deputy Foreman

9. Gladys H. Hardwicke W F

10. Pamela Ann Ingram WF

ll. Marvin D. Jones BM

12. Laura D. Knight BF

13. Faye Thomas Lemon BF

14. Calvin M. Marder - Race Unknown M

15. Ruth N. McKeller B F

16. Bessie James Moore BF

17. John F. Newcomb WM

Forman

18. R.M. Parker WM

A.80

19.

20.

ees

William David Sawyer

Faye L. Shrewsbury

Lorraine E. Waida

Dora M. Wilson

M= 9

A.81

W F

Grand Jurors - Reporting for Service

February 11, 1980

wo FF Ww Hw -

— we =

10.

he.

L3.

14,

16.

Lf.

18.

William W. Adams

Ann A. Atkins

Lester M. Breen

G. E. Burcher

Phillip E. Carter

Foreman

William J. Coley

Fannie S. Curtis

Robert C. Driver

Robert M. Epstein

William E. Francis

Susan J. Glasheen

James H. Hutcheson

Pereuna Johnson - Absent

Thomas H. Kennedy

Mary A. Lenning

Mae F. McGough

Jerry L. Parker

Mildred Brickey Pierce

Deputy Foreman

A.82

eit ee

ot i i oe ee

20,

r 2 ie

23.

Betty A. Schuler

Clyde L. Smith

Vernie C. Taylor

Eugene W. Tysor

(Marked off List)

Jimmie E. Waters

A.83

81-1

Foreman - Charles R. Kilman MW

Deputy Foreman - Cecilia D. Vail F W

81-2

Foreman - Betty D. Romulus F W

Deputy Foreman - Garland E.

Jackson-Race Not Named M

Rollingwood Avenue, VB :

(White Area) )

81-3

Foreman - Joseph H. Simmons, Jr. M B

Deputy Foreman - Diane M. Hickman F W

80-1

Foreman - Gerhard W. Schlierf MW

Deputy Foreman - Donald R. Evans M W

80-2

Foreman - Eugene P. Lanning M W

D. Foreman - Richard L. Limerick M W

A, 84

APPENDIX E

BEFORE THE REVIEWING PANEL

OF THE FOURTH CIRCUIT

In the Matter of the Review of the

Amendment to the Jury Selection

Plan submitted by the United States

District Court for the Eastern

District of Virginia

Filed: July 3, 1973

ORDER

The Jury Selection Plan of the

United States District Court for the

Eastern District of Virginia, now in

effect, is hereby modified by the amend-

ed plan shown on the eight pages attach-

ed hereto and made part of this order,

and

It is so ORDERED this 12th day of

June, 1973.

/s/ Chief Judge, Fourth Circuit

/s/ United States Circuit Judge

A.85

/s/ United States Circuit Judge

/s/ Chief Judge, Eastern District

of Virginia

A, 86

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

No. 82-14-N

UNITED STATES OF AMERICA

Vv.

JAMES DANIEL ALEXANDER, et al

Filed April 2, 1982

AFFIDAVIT - CERTIFICATE

I hereby certify that the attach-

ments (copy of this Court's Jury Selec-

tion Plan, with amendments; copy of

Courtroom Clerk's Minutes of proceedings

on February 8, 1982; and copy of the

Grand Jury attendance record for Feb-

ruary 8, 1982) to this affidavit-certi-

ficate are true and exact copies from

the records of this Court and I further

certify the selection of the Grand

Jurors was by use of an Electronic Data

A,87

Processing System, pursuant to the pro-

visions of this Court's Jury Plan.

IN TESTIMONY WHEREOF, I have here-

unto subscribed my name and affixed the

seal of the aforesaid Court at Norfolk

this gnd day of April, A.D. 1982.

W. FARLEY POWERS, JR.,

Clerk

/s/ Chief Deputy Clerk

A.88

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA NORFOLK DIVISION

No. 82-14-N

UNITED STATES OF AMERICA

Vv.

JAMES DANIEL ALEXANDER, et al

Filed, April 5, 1982

Entered, April 5, 1982

ORDER

Defendants move to quash the in-

dictments returned by the grand jury in

this case asserting that the foreman of

the grand jury was improperly selected

in that the records establish that for

the last twenty-two grand juries con-

vened in this division of the Court a

male had been selected as foreman some

ninteen times, and a female selected

only about three times. However, the

A.89

record did show that a female had been

selected as deputy foreman some twelve

or more times.

Defendants asserted that the fore-

man exercised great influence over the

other jurors and that the male was more

persuasive than the female in returning

an indictment.

The Court does not reach the ques-

tion of whether the challenge to the

array of the jurors, or the selection

of the foreman is timely, or whether

there is merit to the challenge that

females have not been selected in pro-

portion to the males, or whether male

foremen are more persuasive with the

other grand jurors than are females, for

the foreman of the grand jury which re-

turned the indictments agains the de-

fendants in this case was a female. See

affidavit of the Deputy Clerk filed

A.90

herein by agreement of all parties.

A copy of the Jury Plan of selec-

tion of petit and grand juries, approved

by the Court and by the Circuit Council

is attached to the affidavit, along with

a copy of the list of the grand jury of

February 8, 1982, and the Clerk's minutes.

The motion being without merit is

DENIED,

Copy of this Order is forwarded to

counsel,

/s/ U.S. District Judge

A True Copy Teste:

W. Farley Powers, Jr.,

Clerk

By /s/ Deputy Clerk

A.91

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA

Filed: July 3, 1973

Amended Plan Prescribing Method for

Composition of Jury Wheels And

selection of Jurors in All Divisions

of the District in Accordance With the

Jury Selection and Service Act of 1965

The Court having on July 1, 1968,

adopted a "Plan Prescribing Method for

Composition Jury Wheels and Selection

of Jurors in All Divisions of the Dis-

trict in Accordance with the Jury Selec-

tion and Service Act of 1968" and the

Plan has heretofore been amended by

Order of this Court on October 28, 1970

and again on July 14, 1972, it is here-

ORDERED that the existing plan for

the random selection of grand and petit

jurors in effect for the Eastern Dis-

trict of Virginia since July 5, 1968,

be and same hereby is amended and

A,92

adopted by this Court as follows, sub-

ject to the approval by a reviewing

panel and to such rules and regulations

as may, from time to time, be adopted

by the Judicial Conference of the United

States.

Policy

It is the policy of this Court that

all litigants entitled to trial by jury

shall have the right to a jury venire

initially selected at random from a

cross-section of the community in the

area surrounding the location where the

court is convened, and that all qualif-

ied citizens shall have the opportunity

to be considered for service on grand

and petit juries, and shall have the

obligation to serve as jurors when

summoned for that purpose. The use of

the word "court" in this order shall

contemplate the full court, or any

A.93

judges thereof. The phrase "location

where court is convened" shall embrace

the cities and counties within the sep-

arate divisions as now or hereafter

established by local rule.

Discrimination Prohibited

No citizen shall be excluded from

service as a grand or petit juror on

account of race, color, religion, sex,

national origin or economic status,

Management of Jury Selection Process

The Clerk of Court shall manage

the jury selection procedures under the

supervision and control of the Chief

Judge of this District.

Disclosure of Names of Jurors

Upon qualification, the entire list

of names drawn from the Qualified Juror

Wheel may be disclosed to counsel for

the parties or to any party acting pro

se, unless the Court directs otherwise.

A.94

ET eT Te eR pee

As for jurors assigned for service on

particular cases or particular days,

disclosure shall not be until three

days prior to the trial date; provided

the Court may, in any case, keep such

names confidential for such period of

time as the interest of justice may

require.

Random Selection

Voter registration lists represent

a fair cross-section of the community

in the Eastern District of Virginia.

The Clerk may select names from the

voter registration lists from each

county and city located within the re-

spective divisions of this Court

through the use of a properly programm-

ed data processing system.

A, Manner of Selection - After

determining total number of registered

voters for all counties and cities in a

A.95

a division, the Clerk will divide that

number by the number of names needed

for the Master Jury Wheel. The result

is referred to herein as the "quotient".

The quotient is the ratio of selected

to unselected names.

B. Determining a StartingNumber -

After determinig the quotient, the Clerk

shall establish a starting number. This

number will locate on the voter regist-

ration lists the first name to be select-

ed. The starting number will be manual-

ly drawn by lot from numbered cards or

disks placed in a jury drum or box.

Cards or disks used for this drawing

should begin with a card or disk con-

taining number one and end with a card

or disk containing the same number as

the "quotient",

C. Use of Electronic Data Process-

ing System - A properly programmed

A, 96

ee ee

electronic data processing system may

be used to select names from voter re-

gistration lists of any or all cities

and counties in the respective divisions

in the district, provided that the

required proportions of names for each

county and city are maintained and that

the above described quotient and start-

ing number formula is followed. Where

a machine does the selecting of names

it must be programmed first to accept

a specific instruction as to what

"starting number" and "quotient"

formula is to be used and secondly to

perform a proportionately balanced

selection and retrieval of names pre-

cisely according to that formula.

Master Jury Wheel

The Master Jury Wheel into which

all names and addresses of those rand-

omly selected from voter registration

A.97

lists from each county and city within

the respective divisions of this dis-

trict are to be placed may consist of

a revolving drum, drawers of file cabi-

nets or electronic data, storage devices

such as punched cards, magnetic tapes

or magnetic disk files.

The number of names to be placed

in each Master Jury Wheel shall be as

follows:

1. Alexandria, Norfolk and Richmond

Divisions- approximately fifteen thousand

names in each division, but in no event

less than one half of one percent of the

total registered voters for the design-

ated cities and counties,

2. Newport News Division - approx-

imately eight thousand names, but in no

event less than one half of one per cent

of the total registered voters for the

designated cities and counties.

A.98

(See Rules of Court for cities and

counties in each division.)

The Court may order additional

names to be placed in the Master Jury

Wheel or Qualified Juror Wheel if and

When needed.

Drawing of Names from Master Jury

Wheel or Tape

From time to time, as directed by

the Court, the Clerk,or Deputy Clerk if

the Clerk is not available, shall

publicly draw from the Master Jury Wheel

the names and addresses of persons to

whom questionnaires will be sent as may

be required for service for a particular

period. An alphabetical list of the

names drawn shall be prepared. The

Clerk shall cause to be mailed to every

person whose name is so drawn, a juror

qualification form, with instructions

to fill out and return the form, duly

A,99

Signed, by mail within ten (10) days.

1. For any of these drawings names

will be taken by using the same random-

ized selection formual described herein-

above as follows: The total number of

names to whom questionnaires will be

sent shall be divided into the total

number of names in the Master Jury

Wheel of each division of this Court

to determine a "quotient" and that

quotient will be used in determining

the starting numbers. The names so

selected shall be listed in alphabe-

tical order.

2, After completed questionnairs

are returned by prospective jurors

these will be reviewed by the Clert

3. Any person who fails to re-

turn a juror qualification form as in-

structed may be summonsed by the Clerk

A.100

to appear and fill out such forms;

provided that any person who returns

an executed juror qualification form

by mail, and who is subsequently sum-

moned for service on grand or petit

jury, may be required by the Clerk to

fill out another juror qualification

form. Any person who fails to appear

as directed, or who appears to have

wilfully misrepresented a material fact

on a juror qualification form for the

purpose of avoiding service as a

juror, shall be ordered by the court

to appear and make such explanation,

if any he can, as to his failure to

appear and/or his alleged misrepresen-

tation on the juror qualification form.

Qualified Juror Wheel

The Qualified Juror Wheel may

consist of a revolving drum, drawers

of file cabinets, magnetic tapes or

magnetic disk files, into which shall

be placed the names of all persons

drawn at random from the Master Jury

Wheel who are deemed to be qualified

as jurors and not exempt, excluded or

excused.

The names of grand and petit

jurors for each division shall be pub-

licly drawn from a Qualified Juror

Wheel containing the names of not less

than 300 qualified persons in such

division at the time of each drawing.

After drawing names for jury service

for a specified period from the Quali-

fied Juror Wheel, the Clerk is autho-

rized to select alphabetically, if

practicable, the jurors directed to

report for particular dates or series

of dates, The Clerk shall have the

A.102

power to temporarily excuse the chosen

jurors if a reasonable excuse is given,

such as a planned vacation, an impor-

tant business meeting, OF other simi-

lar event that would cause inconveni-

ence to the juror if required to report

for jury service on a particular date

or dates, Those jurors so excused

shall be ordered by the Clerk to report

for jury service at another time dur-

ing their tenure, so as to provide for

approximately equal distribution of

time among the members chosen for jury

service during the period for which

the jurors were called to serve. Once

a juror has been selected and has

served for his entire designated per-

iod of service, not to exceed a total

of thirty (30) days except when nec-

essary to complete service in a parti-

cular case, his name shall not be re-

A.103

turned to the Qualified Juror Wheel.

The Clerk shall prepare a list of

names of persons drawn for service on

grand and petit juries for the period

of their service. He shall issue

summons for the required number of

jurors and deliver them to the Marshai

for service. Each person drawn for

jury service may be served personally

or by registered or certified mail,

addressed to such person at his usual

residence or business address. Such

service shall be made by the Marshal

who shall attach to his return the

addressee's receipt for the registered

or certified summons, where service is

made in that manner by mail. Nothing

herein contained shall be construed

as requiring the issuance or service

of any summons other than for the

first day of any specified period of

A,104

of service, which date may be contin-

ued by order of Court. Jurors serving

on individual days may be excused by

the Court or Clerk to a specified date

in the future, if within the date of

the overall period of service.

Juror Qualification Form

Questionnaires as to qualification

for jury service, as prescribed by the

Administrative Office of the United

States Courts and as from time to time

revised, shall be used to elicit the

information necessary to determine

whether a person is qualified for,

exempt from, or excused from jury ser-

vice. The Court or Clerk may require

additional information, The question-

naire shall be forwarded to such pros-

pective jurors whose names are drawn

from the Master Jury Wheel to be

A.105

placed in the Qualified Juror Wheel.

Emptying and Filling of Master and

Qualified Juror Wheels

The Clerk is hereby directed to

empty and refill the Master Jury Wheel

in each division of this court as pro-

vided in this plan between May 15 and

August 15 of every fourth year here-

after, commencing between May 15 and

August 15, 1973, and every fourth

year thereafter,

The Qualified Juror Wheel shall

be emptied and refilled pursuant to

the procedures herein set forth be-

tween August 15 and October 1 of every

year beginning August 15 to October 1,

ae73.

Qualifications to Serve

Any person shall be deemed quali-

fied to serve on grand or petit juries

A. 106

in this court unless the person is

1. not a citizen of the United

States, eighteen years old, who has

resided for a period of one year with-

in the judicial district;

2. is unable to read, write and

understand the English language with

a degree of proficiency sufficient to

fill out satisfactorily the juror

qualification form;

3. is unable to speak the Eng-

lish language;

4. is incapable, by reason or

mental or physical informity, to ren~

der satisfactory jury service; Or

5. has a charge pending against

him for the commission of, oF has been

convicted in a state or federal court

of record of, a crime punishable by

imprisonment for more than one year

A.107

and his civil rights have not been re-

stored by pardon or amnesty.

If Congress creates additional

disqualifications, any person falling

withing such category shall be deemed

disqualified to serve on grand and

petit juries in this Court. Only ob-

jective criteria may be used to deter-

mine whether any person has satisfied

any qualification for jury service or

whether a basis exists for exempting

or excusing any person from jury ser-

vice.

Exclusion, Excuse or Exemption from Jury

Service

Except as provided herein, no per-

son or class of persons shall be ex-

cluded, excused or exempt from service

as jurors; provided that any person

summoned for jury service may be (1)

excused, as the Court may direct, upon

A.108

a showing of undue hardship or ex-

treme inconvenience, or (2) excluded

by the Court upon a finding that such

person may be unable to render impar-

tial jury service, or that his service

as a juror would be likely to disrupt

the proceedings, or (3) excluded upon

peremptory challenge by any party for

good cause shown, or (4) excluded upon

a challenge by any party for good

cause shown, or (5) excluded on deter-

mination by the Court that his service

as a juror would be likely to threaten

the secrecy of the proceedings, or

otherwise adversely affect the inte-

grity of the jury deliberations, or

(6) excluded on determination by the

Court upon a challenge by a party,or

sua sponte, that such a person is

unable, for cause other than physical

infirmities, to fill out a jury quali-

A.109

fication form, or is otherwise not

qualified for service pursuant to law.

Whenever a person is exempted, excused

or excluded, except for causes set

(5) of this paragraph, he shall be

eligible to sit on another jury if the

basis for his initial exclusion would

not be relevant to his ability to

serve on such other jury. Whenever a

person is exempted, excused, or exclu-

ded from jury service, the Clerk of

the Court shall not in the space pro-

vided on his juror qualification form

the specific ground of exemption, ex-

cuse of exclusion.

Automatic Exemptions from Jury Service

The exemption of members of the

following occupations classes or

groups of persons is in the public in-

A.110

terest, consistent with law, and shall

be automatically granted:

(1) Members in active service in

the armed forces of the United States.

(2) Members of the active five,

police or law enforcement departments

of any country, state, district, terri-

tory, possession or subdivision there-

of.

(3) Public officers, as defined

by statute, in the executive, legis-

lative or judicial branches of the

government of the United States, or any

state, district, territory, possession

or subdivision thereof, who are activ-

ely engaged in the performance of offi-

cial duties,

Excuses from Jury Services on Request

Since jury service by the mem-

bers of the following occupational

classes or groups of persons would en-

A. iit

tail undue hardships, extreme incon-

venience, or serious obstruction or

delay in the fair and impartial admin-

istration of justice, the excuse of

such members would not be inconsis-

tent with law, and may be granted by

the Court or Clerk if individually

requested:

(1) All persons over 70 years of

age,

(2) All ministers of the gospel

primarily engaged in the active dis-

charge of their ministerial duties.

(3) All physicians, dentists,

and attorneys engaged in actual prac-

tice.

(4) All registered, practical or

vocational nurses actively engaged in

the practice of their profession.

(5) Any person who has served as

A.112

a grand or petit juror in a federal

court within the preceding two years,

or who has served as a grand or petit

juror in a state court within the

preceding one year,

(6) All registered pharmacists

actively engaged in the practice of

their profession.

(7) All licensed morticians

actively engaged in the practive of

their profession, and any other per-

sonnel needed to conduct funeral ser-

vices,

(8) All school teachers, which

shall include public, parochial and

private school teachers, engaged in

the active teaching of children.

(9) All females having legal cus-

tody of a child or children the age

of twelve or under,

A,113

(10) The spouse of any person

who is summoned to serve on the same

jury panel.

(11) Any prospective juror re-

Siding at least 35 miles from the

place of holding court whose service,

in the discretion of the Court only,

would entail undue hardship or ex-

treme inconvenience.

(12) Duly licensed commerical

maritime pilots and seamen actively

engaged in the practice of their

occupation,

(13) Persons actively and phy-

sically engaged in the movement of

vehicles, aircraft, trains and vessels

in interstate and foreign commerce.

United States District Judge

A.114

Sat Ae aa Ras ag

Dated:

United States

District Judge

United States

District Judge

United States

District Judge

United States

May 29, 1973

District Judge

BEFORE THE REVIEWING PANEL

OF THE FOURTH CIRCUIT

In the Matter of the Review of the

Amendment to the Jury Selection Plan

Submitted by the United States

District Court for the Eastern

District of Virginia

ORDER

The Jury Selection Plan of the

United States District Court for the

Eastern District of Virginia, now in

effect, is hereby modified by the

amended plan shown on the one page

attached hereto and made part of this

order, and

It is so ORDERED this llth day

of January, 1977.

A.116

Chief Judge, Fourth Circuit

United States Circuit

Judge

United States Circuit

Judge

United States Circuit

Judge

United States Circuit

Judge

United States Circuit

Judge

United States Circuit

Judge

Chief Judge, Eastern Dis-

trict of Virginia

Filed Jan. 17, 1977

U.S. Court of Appeals

Fourth Circuit

A,117

A True copy Teste;

William K. Siate,. II, Clerk

Deputy Clerk

A.118

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Filed November 16, 1976

ORDER

By and with the consent of the

Circuit Council, it is ORDERED that

the "Plan Prescribing Method for Com-

position of Jury Wheels and Selection

of Jurors in All Divisions of the

District in Accordance with the Jury

Selection and Service Act" adopted

July 1, 1968, amended by Orders of

October 28, 1970, July 14, 1972, and

May 29, 1973, be further amended to

provide:

that the Clerk shall empty and

refill the Master Jury Wheel in

each Division of this @®urt

between May 15 and August 15

of every other year commencing

with the period of May 15 to

August 15, 1977.

A, 41i9

It is further ORDERED that copy

of this amendment be forwarded to the

Circuit Council, the Administrative

Office of the United States Courts, the

Attorney General of the United States,

and that copy be filed in the Clerk's

Office of each division of this Court,

and that it shall become effective upon

it's being filed with the Clerk of this

Court.

United States District Judge

United States District Judge |

United States District Judge

A.120

United States District Judge

United states District Judge

DATED November 16, 1976

A.121

BEFORE THE REVIEWING PANEL

OF THE FOURTH CIRCUIT

In the Mtter of the Review of the

Amendment to the Jury Selection

Plan Submitted by the United States

District Court for the Eastern

District of Virginia.

ORDER

The Jury Selection Plan of the

United States District Court for the

Eastern District of Virginia, now in

effect, is hereby modified by the

amended plan shown on the one page

attached hereto and made part of this

order, and

It is so ORDERED this 8th day of

February, 1980.

Chief Judge, Fourth Circuit

A.122

United

States

Circuit

Judge

United

States

Circuit

Judge

United

States

Circuit

Judge

United

States

Circuit

Judge

United

States

Circuit

Judge

United

States

Circuit

Judge

United

States

Gircuit

Judge

United

States Circuit Judge

Chief Judge, Eastern Dis-

trict of Virginia

FILED: Feb. 8, 1980

U.S. Court of Appeals

Fourth Circuit

A.123

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

FILED Mar. 10, 1980

ORDER

By and with the consent of the

Circuit Council, it is ORDERED that the

"Plan Prescribing Method for Composi-

tion of Jury Wheels and Selection of

Jurors in All Divisions of the District

in Accordance with the Jury Selection

and Service Act" adopted July 1, 1968,

amended by Orders of October 28, 1970,

July 14, 1972, May 29, 1973 and Nov-

ember 16, 1976, be further amended to

provide that provision under "Excuses

from Jury Service on Request" identi-

fied in paragraph (9) therein, be and

same lereby is amended to read as

follows:

A.124

Persons having active care and

custody of a child or children

under 10 years of age whose

health and/or safety would be

jeopardized by their absence

for jury service; or a person

who is essential to the care of

aged or infirmed persons.

It is further ORDERED that copy of

this anendment be forwarded to the Cir-

cuit Counsel, the Administrative

office of the United States Court,

the Attorney General of the United

States, and that copy be filed in the

Clerk's Office of each Division of

this Court, and that it shall become

effective upon it's being filed with

the Clerk of this Court.

United States District Judge

United States

District Judge

United States

District Judge

United States

District Judge

United States

District Judge

United States

District Judge

United States

DATED March 10

A.126

District Judge

, 1980

Newport News Division

Monday, February 8, 1982

Minutes of Proceeding in Open Court

Present: Honorable Richard B. Kellam

Re: Grand Jury Proceedings

Following Grand Jury Approval

1. Susan M. Butler - Foreman

2. Stanley S. Hicks - Deputy

Forman

3. Shirley S. Aikon

4. George T. Bats

5. Sherwood L. Evans

6. Emily K. Fournew

7. Ada Morris Gay

8. Florence Fay Griffin

9. Dorothy T. Howell

10. Jerry R. Karwac, Jr.

11. Herbert Hoow Lake

12. Rawleigh J. Linkous

13.

14.

is.

16.

: &

18.

19.

20.

21.

22.

John H. Midkiff

Elva Ann St. Clair O'Neal

Stephen Peters

Garland F. Gilloman

Leonard C. Richarson

Thomas W. Russell, Jr.

Louis S. Silverman

Henry B. Sudduth

Maxwell S. Torgerson

Susan M. Townsend

All Grand Jurors heretofore sworn

retired to begin their considerations

returning late with the following

presentments:

U.S. v. James Daniel Alexander,

a/k/a J.D.

U.S. v. Thomas Glen Flowers

U.S. v. Steven Thomas McMahan

U.S. v. Alan Dale Phillips

U.S. v. Stephen Deveaux Ravenel,Jr.

A.128

U.S. v. Dale Thomas Strouse

U.S. v. Gary Sokoloff

U.S. v. Terrance Sokoloff, a/k/a

D. Terry Michaels.

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Newport News Division

Monday - February 8, 1982

Minutes of Proceedings in Open Court

Present: Honorable Richard B. Kellam

Grand Jury Proceedings (cont'd)

On motion of U.S. Attorney, Court

directed Bench Warrants issued for

defendants, Alexander, bond $75,000.00

(surety); Flowers, bond $200,000.00

(surety); McMahon, bond $75,000.00

(surety); Phillips, bond $75,000.00

(surety); Strause, bond $200,000.00

(surety) and Terrence Sokoloff bond

$200,000.00 (surety).

U.S. v. Jerry Morgan Brown

U.S. vi~ James Larry Grainger

U.S. V. Randolph Freeman

U.S. v. Raymond Vernon Williams

U.S. v. Joseph Donald Alexandro

a/k/a , etc.

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U.S. v. Kenneth Parker

On motion of the U.S. Attorney,

above indictments are transferred to

the Norfolk Division for docketory

and trial and indictment against defts

Alexender, Flowers, McMahon, Phillps,

Strouse, Gary Sokoloff and Terrence

Sokoloff be sealed.

U.S. v. Robert Duane Praml

U.S. v. Leonard H. Lockhart

U.S. v. Anthony George Kelly

Cavall

Grand Jurors excused subject to cali

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Grand Jury

February 8, 1982

Attendance - 22

1. Shirley S. Aiken

2. George T. Bata

3. Susan McCann Butler...Foreman

4. Sherwood L. Evans

5. Emily K. Fournier

6. Ada Morris Gay

7. Florence Fay Griffin

8. Stanley S. Hicks...Deputy Foreman

9. Dorothy T. Howell

10.Jerry R. Karwac, Jr.

11l.Herbert Hoover Lake

12.Rawleigh J. Linkous

13. John H. Midkiff

14.Elva Ann St. Clair O'Neal

15.Garland Flem Prillaman

16.Stephen Peters

Avice

Thomas W. Russell, Sr.

19. Louis S. Silverman

20. Henry B. Sudduth

21. Maxwell S. Torgersen

Susan M. Townsend

APPENDIX F

CONSTITUTIONAL PROVISIONS

Sixth Amendment, United States

Constitution provides:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy trial and public trial, by an

impartial jury of the state and dis-

trict wherein the crime shall have

been comitted, which district shall

have been previously ascertained by

law, and to be informed of the nature

and cause of the accusation; to be con-

fronted with the witnesses against him,

to have compulsory process for ob-

taining witnesses in his favor, and

to have the assistance of counsel for

the defense.

STATUTORY PROVISIONS

Title 28 U.S.C, 1861. Declaration

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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 community 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 courts

of the United States, and shall have

an obligation to serve as jurors when

summoned for that purpose.

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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.