# Petition — Phillips v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0891%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 958 ## Text 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 al 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. ii 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 5 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 iv 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 3S 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. Vi 316 U.S. 400,405 (1942).... PAGES ee be 7,945 tle 24 6. i .73 ia,.0 27 15 a3 bP 11,16 11 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 ix 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 ee 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. 6. 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 1/ 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. ae 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 3S 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 t. 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 pe 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, A. 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. © Ali vignt. 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 i. 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. i re rs Marion K. Seebo Bette Anne Shepherd Myron F. Spring, Sr. Richard R. Stringer M F A,40 9 16 ti i2Z ww et ww FF we § ree to ll 10 Co Oo NUN OT VM eS Ww Nl hCUe te -) 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. 2 ra ae a Bernard A. Hiram G. White, Sue R. Dix Assistant Foreman Burton C. Nettie P. Wright on Deputy Riedel, White M F *Court designated Sue Oo 14 22 15 16 be R. 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 Ae 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. rs Ze. _. 24. Juanita A. Noble Bennie 0. Parke Robert K. Rickert Dolres J. Smith Roy P. Williamson Charles E. Ryan 14 10 M F 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 ve J// wy be 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 6. 7 8 9 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 ww Aw F VY F AY M MY M ExcusedY O M YU F wit MY F “aM Vv “YM WF “Mw M MM M/F 19. 20. OR ae. Loraine Tennefoss Vernon W. Turpin Lawrence W. Wheeler Jack M. Bailey > A.46 ae oe ww" FF -wM “uM Ym 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 A. 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 i Ww ~~ + oo w Oo .Magdalene H, Johnston GRAND JURY - SEPTEMBER 9, 1974 9 10 . William L, Adams ne Frederick 3B. Baines —_ i Alice P. Bell vail Constance A. Boyd ill anil Freda H. Brunson -_/. ~~ Mary B, Coleman i . 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 il .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 yl 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 1 2 a 4 - 6 7 8 9 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, ri aa. yo 24. a3. 26. ai. 28. 29. 30. ake ae. 33. 34. aes 36, ar 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 21 1 WO = 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 "5 ?F Fae BM OF 18. Cecil F. Mohler, Jr. av ew A.37 a9. 20. ys 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 B xy oC ff at OO OOSlhlURmhlUNmDULN COU i —) 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 Ta A.59 2 9 2 8 BM ee 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 lu . Lois Napier ta - Ralph W. Oliver, Jr. . Irene Patterson 3U, Roay_N Riereé \_— Excused 38. Joseph Preziotti, Jr. Robert W. Roach 1#™ A.60 jt BF BF WM 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, 19 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 -— 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 1 2 2 4 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 2 an. 22 43. 24. aa: 26, ys 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 t ho A.65 WM =z bm Le. i 14, ie 16. ip 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 ?F 297RER § 8 21. Eunice B, Shaw BF 22. Annie B, Taylor WF 23. Lawrence E. Towndrow WM F = Ms W B LS 10 ll 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. po 22. re Carlton W. Spruill Doris K. Thompson Edward R. Ullom, III Charlie B. Ward "ow ~ we nou lool ~s 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 BM 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 be 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, 77 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 i) oles FRE RG RERERARR REE EEE 21. Maurice L. Sison 22. Frank A. Tolliver 23, Gary Q. Williams M F 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 } § s _ nancial Teeter ate ats 19. 20. ai. y a 23. 24. ra 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 2 William David Sawyer Faye L. Shrewsbury Lorraine E. Waida Dora M. Wilson M= 9 Ba A.81 WM WF W F BF Grand Jurors - Reporting for Service February 11, 1980 wo FF Ww Hw - — we = 10. ba he. L3. 14, to 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 ke 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/ United States Circuit Judge /s/ United States Circuit Judge /s/ United States Circuit Judge /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- by 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 forth under clause (2), (3), ©) or (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 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 By 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 i] 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 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 District Judge United States DATED March 10 A.126 District Judge , 1980 a _ 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. A,129 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. A.130 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 A,131 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 A.134 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. A.135 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0891%3A1. Public record. Not legal advice.