Oppositief Brief for the United States — Hobby v. United States

Office -Supreme Court, US,

YT tee

No. 82-2140 NOV g 1983

“Rr L. STEVAS,

In the Supreme Court of the United St ra

OCTOBER TERM, 1983

WILBUR HOBBY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

REx E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JANIS H. KOCKRITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court failed adequately to in-

struct the jury concerning the elements of a charge of

defrauding the United States of CETA program funds.

2. Whether petitioner’s claim of selective prosecution

was sufficiently supported to require holding of an evi-

dentiary hearing.

3. Whether alleged discrimination in the selection of

grand jury forepersons resulting in the underrepresen-

tation of women and blacks in that position provides a

basis for reversal of a conviction upon an indictment re-

turned by the grand jury.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S. 625..... 11

Bordenkircher v. Hayes, 434 U.S. 357..... 10

Castaneda v. Partida, 430 U.S. 482 ....... 13

Cox v. Louisiana, 379 U.S. 559........... 7

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

Guice v. Fortenberry, 661 F.2d 496........ 14

Oyler v. Boles, 368 U.S. 448.............. 10

Potore ¥. Ey, GT UB. GBB oc cccccccccess 6, 12

Raley v. Ohio, 360 U.S. 423 .............. 7,8

Rose v. Mitchell, 483 U.S. 545 ...6, 11, 12, 18, 17

Taylor v. Louisiana, 419 U.S. 522 ........ 6, 13

United States v. Aimone, 715 F.2d 822, pe-

titions for cert. pending sub nom. United

States v. Dentico and United States v.

Musto, Nos. 83-681 and 83-690 (filed Oct.

24 and 26, 1983, respectively) ........... 14, 18

United States v. Coats, 611 F.2d 37....... 6

United States v. Coletta, 682 F.2d 820, cert.

denied, No. 82-798 (Feb. 22, 1983)..... 11, 14,

15, 16

United States v. Cronn, 717 F.2d 164 ..... 11, 15

United States v. Cross, 708 F.2d 631 ...... 14, 15,

16, 18

(111)

Cases—Continued: Page

United States v. Goodwin, 457 U.S. 368 ... 10

United States v. Holman, 680 F.2d 1340... 14, 15

United States v. Perez-Hernandez, 672 F.2d

ls cialis dh ol obeds eee wets eee 6, 14, 15

United States v. Russell, 411 U.S. 423 .... 7

Constitution, statutes and rules:

U.S. Const.:

I A da dale Oh cides chttaebideekte 9

Amend. V (Due Process Clause)... .. 5, 6, 11

ps EPP eS ee ee 13

Comprehensive Employment and Training

Act of 1973:

Be hs ea a cents aueesses beak’ a

29 U.S.C. (& Supp. V) 801 et seg...... 1

ak | ot ey re ay Oe CE 1

Oe SEE Sunesuns Gankeckdbives tenes 5

Fed. R. Crim. P

EN GEE bcs oh wine adelc VASewesereen 12, 18

In the Supreme Court of the Grited States

OCTOBER TERM, 1983

No. 82-2140

WILBUR HOBBY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

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

A1-A19) is reported at 702 F.2d 466.

JURISDICTION

The judgment of the court of appeals was entered on

March 9, 1983. A petition for rehearing was denied on

April 29, 1983. The petition for a writ of certiorari was

filed on June 29, 1983, one day out of time. The jurisdic-

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

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of North Carolina, peti-

tioner and codefendant Mort Levi were convicted of

conspiring to defraud the United States of monies ap-

propriated under the Comprehensive Employment and

Training Act of 1973 (CETA), 29 U.S.C. (& Supp. V)

801 et seq., in violation of 18 U.S.C. 371 and 665 (Count

(1)

2

1). In addition, petitioner was convicted on three counts

of fraudulently obtaining and misapplying CETA grant

funds, in violation of 18 U.S.C. 665 (Counts 3, 4, and 5).

Petitioner was sentenced to 18 months’ imprisonment

on Count 1; his sentence to concurrent terms of two

years’ imprisonment on Counts 3, 4 and 5 was suspend-

ed in favor of five years’ probation. In addition, he was

fined $10,000 on each count. The court of appeals af-

firmed (Pet. App. Al-A19).

1. The evidence adduced at trial is summarized in the

opinion of the court of appeals (Pet. App. A2-A8). The

pertinent background is as follows: At the time of the

events that led to this prosecution, in 1979, petitioner

was the president of the North Carolina chapter of the

AFL-CIO. Petitioner also owned Precision Graphics,

Inc., a printing company located across the street from

the labor organization’s headquarters in Raleigh that

sometimes performed work for the chapter. Prior to

1979, the labor organization had been using independ-

ent contractors to maintain its membership data in com-

puterized form, but as early as 1977 petitioner had sug-

gested to the chapter’s board that the union should

acquire its own computer capacity. Petitioner had also

mentioned that there might be CETA funds available

for projects the AFL-CIO was interested in (II C.A.

App. 1199, 1201). Petitioner was well acquainted with

the CETA program; he entered into 15 CETA contracts

between 1977 and 1979.

In early 1979 petitioner’s interest in the CETA pro-

gram and his interest in acquiring a computer for AF L-

CIO use began to converge. In January petitioner be-

gan discussions with a representative of Mohawk-Data

Sciences, a firm that had provided equipment for other

state AFL-CIO affiliates that was tailored to exchange

data with the computers in AFL-CIO national head-

quarters, concerning acquisition of such a computer for

the North Carolina chapter (I C.A. App. 427-431).

3

Meanwhile, petitioner and co-defendant Levi formed a

new company, Precision Data, Inc., which promptly

submitted to the North Carolina Department of Natu-

ral Resources and Community Development (DNRCD)

an application for CETA funds to establish a data proc-

essing training program.

Precision Data’s proposal was received with some

skepticism by DNRCD staff members because officials

doubted the need for such a program in the region to be

served, and because Precision Data had no staff or

plant, nor any experience in data processing training or

in the CETA program generally and would be wholly

funded by the proposed grant (II C.A. App. 655-657).

Petitioner’s funding proposal was modified in response

to some of these concerns. Because it was a going en-

terprise with experience in administering CETA train-

ing, Precision Graphics was denominated the grantee in

place of Precision Data. On May 21, 1979, DNRCD ap-

proved a grant of $129,429 to Precision Graphics to op-

erate the proposed data processing training program.

Earlier, in April, petitioner, acting on behalf of Preci-

sion Data, had agreed to purchase a eomputer from Mo-

hawk-Data Sciences, for $41,317.68. The contract pre-

scribed a down payment of $10,329.42, with the balance

to be paid in 24-monthly installments. In addition Mo-

hawk agreed to provide Precision Data with mainte-

nance service for $214/month.

On May 21, 1979, the very day that Precision Graph-

ics’ CETA application was approved, Precision Data

and Precision Graphics entered an agreement for the

latter to lease the computer just purchased by the

former. A monthly rental of $3,000 and a maintenance

fee of $125/week was agreed upon. As soon as the

CETA contract between DNRCD and Precision Graph-

ics was formalized, petitioner’s co-defendant Levi se-

cured an advance of $43,696, and transferred $18,000 of

that amount to Precision Data, $9,000 of which was des-

4

ignated for computer rental charges. Although the com-

puter was not installed until June 15, 1979, on July 3

petitioner issued another check on Precision Graphics’

data processing training program account, in the

amount of $5,000, to Precision Data for computer rent-

al. In addition although Precision Data’s obligation to

pay Mohawk-Data for maintenance services (at the rate

of $214/month) did not accrue until July 16, 1979, Preci-

sion Graphics expended CETA grants funds under its

maintenance agreement with Precision Graphics at the

rate of $125/week beginning May 21, 1979. The over-

charges thus reaped by petitioner through Precision

Data were the basis for the indictment.’

2. The court of appeals affirmed the convictions of

petitioner and his co-defendant. Petitioner had iden-

tified 14 issues on appeal, and his brief encompassed

numerous additional issues under these headings. The

court of appeals determined, however, that “[mlJost

of these contentions are of little substance or frivolous”

and accordingly limited its discussion to two points

(Pet. App. A8). First, the court concluded that petition-

er had suffered no prejudice from the district court’s in-

structions that to convict petitioner for violation of 18

U.S.C. 665 the jury could find either fraud or diversion

of funds. Although that charge is consistent with the

statute, petitioner had claimed error arising from the

district court’s preliminary instruction, subsequently

1 Petitioner’s scheme began to unravel in August 1979, when

DNRCD’s Independent Monitoring Unit began to audit Preci-

sion Graphics’ performance under its CETA contract. Based

upon the results of the audit, the matter was referred for possi-

ble prosecution. The discrepancy between the rate of the

monthly maintenance charge exacted by Precision Data and its

own maintenance costs was the basis for Count 3 of the indict-

ment. The discrepancy between the monthly computer rental

charged and the cost to Precision Data of the equipment was the

basis for Count 4. The rental charged for the period prior to in-

stallation of the computer was the basis for Count 5.

5

expressly corrected, indicating that the government

was required to establish both fraud and diversion of

funds. Acknowledging that due process concerns could

be raised if the defense had been materially misled, the

court of appeals noted that there was no indication that

petitioner had relied to his detriment upon the incorrect

preliminary instruction in framing his defense, that

upon the record of this case the evidence of fraud and

misapplication of funds was inseparable, and that there

was no pertinent line of defense that might have been

pursued that was not developed. Pet. App. A8-A13.

Second, the court of appeals upheld the denial of mo-

tions by petitioner and his co-defendant to dismiss the

indictment based upon alleged statistical underrepre-

sentation of blacks and women among federal grand

jury forepersonsin the Eastern District of North

Carolina (Pet. App. A13-A19).? The court of appeals

2 In the district court, the claims of petitioner, a white male,

and his co-defendant Levi, a black male, rested both upon the

allegedly non-representative composition of grand juries as a

whole in the Eastern District of North Carolina, as reflected in

a sample drawn from the master grand jury list, and the alleged

underrepresentation of blacks and women in the position of

foreperson. I C.A. App. 205-208. Although defendants’ argu-

ment was not wholly explicit in this respect, their claim was

stated alternatively in terms of “discrimination” (presumably in

violation of the equal protection component of the Due Process

Clause) and failure to reflect “a fair cross section of the commu-

nity” (presumably in violation of 28 U.S.C. 1861). See I C.A.

App. 205, 207. Defendants adduced statistical evidence for

underrepresentation of blacks and women among grand jury

forepersons, and on the list from which potential grand jurors

were called (id. at 170-192). As to the former disparity, defend-

ants argued that they had established a prima facie case that re-

quired the government to rebut an inference that the cause of

the statistical disparity was discrimination by the judges of the

United States District Court for the Eastern District of North

Carolina in their supervision of the grand jury (id. at 207). The

government did not present a rebuttal case but argued instead

6

recognized (Pet. App. Al4-A15) that, in Rose v.

Mitchell, 443 U.S. 545, 551-552 n.4 (1979), this Court

had reserved the issue whether discrimination affecting

only the selection of grand jury forepersons requires re-

versal of a conviction upon the resulting indictment.

The court of appeals observed that, in contrast to the

situation in Rose, federal grand jury forepersons are

chosen from among the members of the grand jury it-

self, and their duties are purely ministerial and provide

them with no special influence over the rest of the

grand jury (Pet. App. Al6-AlR Accordingly, although

cognizant of the contrary decision of the Eleventh Cir-

cuit in United States v. Perez-Hernandez, 672 F.2d

1380 (1982), the court concluded that the “role [of a fed-

eral grand jury foreperson] is so little different from

that of any other grand juror that the rights of defend-

ants are adequately protected by assurance that the

composition of the grand jury as a whole cannot be the

product of discriminatory selection” (Pet. App. A18).

that defendants had not made out a prima facie case of inten-

tional discrimination (id. at 210). Relying primarily upon

United States v. Coats, 611 F.2d 37 (4th Cir. 1979), which

upheld the jury selection plan of the Eastern District of North

Carolina against a challenge based upon much of the same data

adduced here (see I C.A. App. 171, 174-175, 199), the district

court denied defendants’ motion to dismiss the indictment (id.

at 212-214).

On appeal, defendants’ claim rested exclusively upon alleged

underrepresentation of blacks and women among forepersons,

and was predicated entirely upon an equal protection tieory

(Levi C.A. Br. 8-15; Hobby C.A. Br. 45). However, the argu-

ment that petitioner had standing to press the equal protection

claim was supported by citation only of cases presenting Sixth

Amendment fair cross-section claims (Duren v. Missouri, 439

U:S. 357 (1979); Taylor v. Louisiana, 419 U.S. 522 (1975)) or

due process or statutory claims (Peters v. Kiff, 407 U.S. 493

(1972)) (Levi C.A. Br. 15).

.

ARGUMENT

Petitioner tenders three issues for review in this

Court. The first two plainly are insubstantial and do not

warrant further review.

The remaining issue, which concerns the identity of

grand jury forepersons, may warrant this Court’s at-

tention. The decision of the court of appeals in this re-

spect does not conflict with any decision of this Court

and is supported by persuasive reasoning and strong

policy considerations. Nevertheless, the court of ap-

peals’ decision does conflict with decisions of the Elev-

enth Circuit, and the conflict has become entrenched

subsequent to the filing of the petition for a writ of cer-

tiorari. Although practical and legal considerations

noted below might warrant denial of review at this

time, we do not oppose further review here limited to

this issue.

1. Petitioner claims (Pet. 17-19) that the court of ap-

peals’ decision “sanction[s] an indefensible sort of en-

trapment” (Pet. 18, quoting Raley v. Ohio. 360 U.S.

423, 425-426 (1959)). As we shall explain, however, no

entrapment defense was raised by petitioner in the dis-

trict court and no error on this score was alleged in the

court of appeals. The court of appeals accordingly failed

to address any such issue, and there is no occasion for

review of any entrapment claim here.

The substance of petitioner’s contention is that the

district court erred in declining to adopt a proffered in-

struction to the effect that one who discloses to govern-

ment agents “the material facts necessary for an under-

standing of a particular transaction” prior to obtaining

payment in respect thereof from the government can-

not be liable for fraud in connection therewith (see Pet.

18). But the reque truction does not outline an

entrapment defense. Petitioner does not suggest that

he lacked a predisposition to commit the acts constitut-

ing the offenses charged, or that he was induced to

8

commit them by the advice of government agents. Peti-

tioner’s reliance on Raley v. Ohio, supra, and Cow v.

Louisiana, 379 U.S. 559 (1965), is accordingly mis-

placed. See also United States v. Russell, 411 U.S. 423

(1973). Rather than raising an entrapment defense, pe-

titioner’s argument seems to be simply that he did not

in fact deceive the government. But the jury was ade-

quately instructed on this subject. The fraud element of

the offense was defined as “an intentional perversion of

truth for the purpose of inducing another, in reliance

upon it, to part with something of * * * value” (III

C.A. App. 1779). Accordingly, no question of general

importance is raised by petitioner’s contentions.

We note, as well, that petitioner raised no objection

to this aspect of the instructions given, nor did he raise

any specific objection to the district court’s failure to

give his proferred instruction, as required by Fed. R.

Crim. ?. 30. Moreover, in the court of appeals, petition-

er did not assign as error the district court’s failure to

give the particular instruction that is the subject of his

contention in this court.* This default renders consider-

ation of petitioner’s claim for this Court inappropriate.

2. Petitioner contends (Pet. 19-24) that the district

court improperly denied him an evidentiary hearing on

his selective prosecution claim; he suggests (Pet. 25-32)

that this case requires the Court to resolve a conflict

among the circuits as to the standard for determining

whether such a hearing is warranted. Assuming that

the alleged “conflict” amounts to anything more than

3 Petitioner did complain in the court of appeals of the district

court’s failure to give other, similar, instructions and argued

generally that the district court’s instructions failed to alert the

jury to his theory of the case (Hobby C.A. Br. 14-15, 27-28). Be-

cause that theory—to the extent it discloses a legally sufficient

defense— was adequately conveyed by the instructions given,

these contentions have no merit, and did not warrant discussion

by the court of appeals. See page 4, supra.

9

semantic variation, which we doubt, no occasion for its

resolution is presented.

Petitioner claims in this Court that his indictment

was the first for CETA fraud in the Eastern District of

North Carolina, and he observes that various irregular-

ities in other North Carolina CETA contracts were in-

vestigated in the same general time period, but appar-

ently did not lead to prosecution. Finally, petitioner’s

selective prosecution claim rests upon the assertion

that he was a labor leader affiliated with one particular

political party and known as an advocate of controver-

sial positions on issues of public interest. Pet. 22-23.

Petitioner’s motion to dismiss the indictment was based

entirely on these same allegations (I C.A. App.

231-242). The district court concluded that even assum-

ing that respondent had made a colorable showing that

others similarly situated had not been prosecuted, he

had presented an insufficient basis for suspecting that

the exercise of prosecutorial discretion was guided by

political considerations or a desire to burden the exer-

cise of respondent’s First Amendment rights. The dis-

trict court accordingly did not require the United

States Attorney to testify concerning the decision to

prosecute. The court of appeals affirmed without dis-

cussion of this point.

Giver the court of appeals’ failure to discuss this

claim in its opinion, it can scarcely be claimed that the

decision of the court of appeals creates a conflict re-

specting the standard for determining whether an evi-

dentiary hearing is required. In any event, however the

standard may be framed, no hearing was required in

this case. The cases collected by petitioner themselves

reveal that every circuit that has addressed the issue

requires at least the allegation of some facts that, if

proven, would give rise to reasonable doubt as to the

permissibility of the considerations that underlie the

prosecutor’s decisions. Petitioner has not shown that

10

his factual allegations would be deemed sufficient to

meet this test under the case-law of any circuit. Peti-

tioner alleged only that he occupied a certain status—

that of an outspoken labor leader with ties to a particu-

lar political party. He alleged no facts that suggest that

the prosecutorial decision in his case was motivated by

his identity. Plainly this cannot be a sufficient basis for

casting upon the prosecutor the burden of explaining

his decision to prosecute, for virtually any public figure

subject to prosecution could claim that he was singled

out because of some viewpoint he held that was anti-

thetical to the views of the prosecutor.

The Court explained in Bordenkircher v. Hayes, 434

U.S. 357, 364 (1978), that

so long as the prosecutor has probable cause to be-

lieve that the accused committed an offense defined

by statute the decision whether or not to prose-

cute, and what charge to file or bring before a

grand jury, generally rests entirely in his

discretion.

Of course, when the decision to prosecute is based upon

an impermissible criterion, such as race or religion or

the exercise of constitutional rights, the general rule

must yield to an exception. See Oyler v. Boles, 368

U.S. 448, 456 (1962). But here petitioner asks the Court

to infer from a defendant’s identity alone that his prose-

cution was improperly motivated. Where selective

prosecution is alleged, as in cases of alleged vindictive

prosecution, whether a presumption of impropriety is

warranted must turn upon the likelihood that an imper-

missible factor will motivate the prosecutor in the par-

ticular type of situation involved. See United States v.

Goodwin, 457 U.S. 368, 384 (1982). The facts alleged

here pertaining to respondent’s identity simply do not

establish the “‘realistic likelihood’” (idid.; citation

omitted) of improper motivation that would warrant the

presumption sought.

1]

3. Petitioner contends (Pet. 32-40) that historic un-

derrepresentation of blacks and women among grand

jury forepersons in the Eastern District of North

Carolina provides a basis for setting aside his conviction

unless the governmeni establishes, through the testi-

mony of the judges of the United States District Court

for the Eastern District of North Carolina, that the ob-

served statistical disparity does not reflect discrimina-

tion.*

a. Contrary to petitioner’s contention (Pet. 33-34,

36-39), the decision of the court of appeals rejecting this

claim is not inconsistent with Rose v. Mitchell. Rather,

as the court of appeals noted (Pet. App. Al4-A15),

Rose expressly reserved the question. See 443 U.S. at

551-552 n.4, All of the language cited by petitioner in

support of his assertion that Rose “held that racial dis-

crimination in the selection of grand jury foremen was

not and could not be harmless error” (Pet. 37; footnote

omitted), was directed to an entirely distinct ques-

tion—i.e., whether any defect in the composition of the

grand jury should be deemed irrelevant because the de-

fendant was subsequently convicted by a properly con-

stituted petit jury. See 443 U.S. at 550-559. The ques-

tion reserved by the Court (id. at 551-552 n.4) was

whether “discrimination with regard to the selection of

only the foreman” was to have the same consequences

* We note that petitioner, a white male, now appears to base

his claim at least partly upon a due process theory (see Pet. 32),

as well as the equal protection component of the Due Process

Clause (see Pet. 36-39, relying upon Rose v. Mitchell, which ad-

dresses an equal protection claim). Compare pages 5-6 note 2,

supra. To the extent that petitioner raises an equal protection

claim, he lacks standing. See Alexander v. Louisiana, 405 U.S.

625, 633 (1972); United States v. Cronn, 717 F.2d 164 (5th Cir.

1983); United States v. Coletta, 682 F.2d 820, 822-824 (9th Cir.

1982), cert. denied, No. 82-798 (Feb. 22, 1983). (A copy of our

brief in opposition in Coletta has been provided to petitioner's

counsel.)

12

as proven discrimination “taint[ing] the selection of the

entire grand jury venire”—the issue presented here.

But Rose is not without bearing upon this case. As

petitioner notes (Pet. 38), a fundamental premise of the

Court’s reasoning was that racial discrimination in the

composition of a grand jury fundamentally “impairs the

confidence of the public in the administration of justice”

(443 U.S. at 556). But, for the reasons summarized by

the court of appeals (Pet. App. A16-A18), racial dis-

crimination affecting only the selection of a grand jury

foreperson has no such effect. Unlike his counterparts

under the laws of some states, the federal grand jury

foreperson is selected from among the members of the

grand jury itself, so any discrimination does not at all

affect the overall composition of the grand jury. And

the duties of the federal jury foreperson, unlike those of

forepersons in some states, are essentially ministerial.

See Fed. R. Crim. P. 6(c). Thus, any special duties

carried out by forepersons do not suggest that they

possess disproportionate influence over the delibera-

tions of grand jury members. As the court of appeals

concluded (Pet. App. A18), even if the foreperson exer-

cises some marginal degree of informal influence over

his or her peers, the role of the foreperson “is so little

different from that of any other grand juror” that re-

versal of convictions and dismissal of indictments is not

warranted.

Other substantial considerations support the decision

of the court of appeals. First, because petitioner, who is

not a member of the allegedly disfavored classes, has

standing to raise only a due process claim (see page 11

note 4, supra), he must demonstrate that under-

representation of blacks and women in the position of

foreperson “cast{[s] doubt upon the integrity of the

whole judicial process” (Peters v. Kiff, 407 U.S. 493,

502 (1972) (opinion of Marshall, J.)). This high standard

simply cannot be met in the present context. Second,

13

inasmuch as each grand jury has but a single

foreperson, no inference of actual discriminatory selec-

tion sufficient to place the burden of refutation on the

government (and the court) should arise from a general

pattern of historic underrepresentation. Cf. Taylor v.

Louisiana, 419 U.S. 522, 538 (1975) (limiting Sixth

Amendment fair cross-section requirement to petit jury

venires and emphasizing that actual jury panels need

not conform to that standard). Because petitioner in no

event has any cause for complaint unless he was in-

dicted by a grand jury that is unconstitutionally consti-

tuted in this respect, the inference of discrimination

that arises from statistical disparities in cases where an

entire grand jury array is challenged lacks force here.

See Castaneda v. Partida, 430 U.S. 482, 497 n.17

(1977) (noting role of large samples in statistical infer-

ence). Third, because of the severe disproportion be-

tween the wrong and the remedy, reversal of convic-

tions and dismissal of indictments on the ground of

discriminatory underrepresentation of members of a

particular class among grand jury forepersons alone,

where the grand jury itself is properly constituted,

would tend to undermine rather than bolster the “confi-

dence of the public in the administration of justice”

(Rose v. Mitchell, 443 U.S. at 556).5 Finally, because

the designation of forepersons, unlike selection of grand

jury members, ordinarily rests in the hands of the judg-

es of district court, preparation of a rebuttal case where

discrimination is alleged based upon statistical infer-

ence necessarily would impose a substantial burden

5 The fact that petitioner was convicted by a validly consti-

tuted petit jury combined with his indictment by a validly con-

stituted grand jury should suffice to render irrelevant any de-

fect in the selection of a grand jury foreperson. Compare Rose

v. Mitchell, 443 U.S. at 574-579 (Stewart, J. concurring), with

id. at 551-559.

14

upon the judiciary. See United States vy. Cross, 708

F.2d 631, 638-639 (11th Cir. 1983).

b. Petitioner also claims (Pet. 34-35) that the deci-

sion below conflicts with decisions of the Fifth and

Eleventh Circuits. The claimed conflict with Guice v.

Fortenberry, 661 F.2d 496, 498 (5th Cir. 1981), is insub-

stantial, for the decision there addressed the role of the

grand jury foreperson under Louisiana law. On the

other hand, as petitioner asserts and as the court of ap-

peals recognized (Pet. App. Al5, A18), the decision be-

low is contrary to reasoning of the Eleventh Circuit in

United States v. Perez-Hernandez, 672 F.2d 1380

(1982). In addition to Perez-Hernandez, the decision in

this case is contrary to the reasoning of the Eleventh

Circuit’s opinion in United States v. Holman, 680 F.2d

1340 (1982), and the holding of that court in United

States v. Cross, 708 F.2d 631 (1983). On the other

hand, the position of the court below is supported by

United States v. Aimone, 715 F.2d 822, 826-827 (3d

Cir. 1983), petitions for cert. pending sub nom. United

States v. Dentico, and United States v. Musto, Nos.

83-681 and 83-690 (filed Oct. 24 and 26, 1983, respec-

tively)® and United States v. Coletta, 682 F.2d 820, 824

(9th Cir. 1982), cert. denied, No. 82-798 (Feb. 22, 1983)

(rejecting due process claim).? Thus the question

* Aimone is not necessarily irreconcilable with Cross, for the

Third Circuit suggested that the disparate results reached “may

be attributable to custom and practice that have developed in

the respective districts” (715 F.2d at 827). But the Third Circuit

also appears to have rejected the Eleventh Circuit's broader

premise. /bid.

7 At the time the petition was filed in this case, the Eleventh

Circuit was internally divided on this issue. In Perez-Hernan-

dez two judges concluded that discrimination in foreperson se-

lection would require reversal (672 F.2d at 1386). Judge Morgan

disagreed (id. at 1388-1389). But because all members of the

court agreed that the government had successfully rebutted the

inference of discrimination and that the conviction accordingly

15

presented in this case is the subject of a relatively en-

trenched conflict among the circuits that would, all

other things being equal, warrant review by this

Court.®

should be affirmed, there was no opportunity for the United

States to seek en banc review. Then, in United States v.

Holman, 680 F.2d 1340, 1356 n.12 (1982), a different panel of

the Eleventh Circuit deemed itself bound by Perez-Hernandez

but stated its approval of Judge Morgan’s view that underrepre-

sentation of a particular class of persons among grand jury

forepersons is in no event a basis for setting aside . conviction

or indictment. Because the court again concluded tha! the gov-

ernment had successfully rebutted the inference of discrimina-

tion and affirmed the conviction on that ground, the Eleventh

Circuit once again had no opportunity authoritatively to resolve

the issue.

Subsequent to the filing of the petition in this case, yet, an-

other panel of the Eleventh Circuit concluded that discrimina-

tion in foreperson selection provides a basis for challenging an

indictment. United States v. Cross, supra. Because the district

court had concluded otherwise, no evidentiary hearing had been

held on the issue, and the court of appeals accordingly re-

manded for further proceedings. The government filed a peti-

tion for rehearing in Cross, suggesting en banc reconsideration

in light of the evident intra-circuit and inter-circuit conflict. The

court of appeals denied the government’s petition for rehearing,

even though the active members of that court who sat on Perez-

Hendandez, Holman, and Cross are, according to their opinions

in those cases, evenly divided, 4-4, on the issue presented.

* The appropriateness of further review may also be sug-

gested by the divergent decisions of the courts of appeals on the

subsidiary issue of the standing of persons not part of a dis-

favored class to complain of discrimination. As explained in our

Brief in Opposition in United States v. Coletta, (pages 8-10)

page 11 note 4, supra), the Eleventh Circuit has cnnelies

standing to such persons without observing any distinction be-

tween due process and equal protection claims, whereas the

Ninth Circuit has held that such persons have standing to com-

plain only on due process grounds. Most recently, in United

States v. Cronn, supra, the Fifth Circuit held that such persons

had no standing to raise an equal protection claim, and declined

to decide whether a due process claim could be maintained.

‘

16

c. Practical considerations nonetheless give cause for

hesitation as to the necessity of further review at this

time. While a conflict among the circuits is apparent,

there is good reason to believe that its practical impor-

tance is diminishing. As the court of appeals noted (Pet.

App. Al4 n.6), subsequent to the return of the indict-

ment in this case, blacks and women have been repre-

sented among grand jury forepersons in the Eastern

District of North Carolina. Moreover, the filing of mo-

tions to dismiss indictments such as the one in the

present case, and the attention the resulting litigation

focuses upon the need for appropriate foreperson selec-

tion methods. coupled with increased sensitivity

throughout the legal system toward the importance of

race- and sex-blind justice generally, is likely to eradi-

cate any improper practices that may formerly have

prevailed in this area.

Substantial confirmation for that viewpoint is provid-

ed by a survey of United States Attorneys conducted

by the Department of Justice subsequent to the denial

of our petition for rehearing in Cross (see page 15 note

7, supra). The responses to our inquiries disclose a

striking pattern in those districts where there may

have been a historical pattern of underrepresentation of

women or minorities among forepersons. In district af-

ter district we were advised that in the past few years

selection practices of the district court had been altered

to eliminate problems that may have existed in the

past.®

While these decisions are reconcilable, as we explained in

Coletta, they reflect the recurring nature of the foreperson dis-

crimination issue.

® Irrespective of the ultimate disposition of this case, it is the

intention of the Department of Justice to take steps to ensure

that the United States Attorneys call the attention of the courts

in their respective districts to the importance of nondiscrimi-

natory foreperson selection procedures. We have already begun

17

On the other hand, we are confronted with the Elev-

enth Circuit’s refusal to reconsider the rule it has

adopted, and the resulting substantial burden imposed

upon prosecutors and the district courts within that cir-

euit. Moreover, if a demonstration of past statistical

underrepresentation alone is sufficient to put the bur-

den on the court to justify selection practices, this bur-

den will be imposed notwithstanding the reforms we

have described above. In view of those reforms, any ar-

guable justification for allowing defendants to enforce

by proxy the rights of persons who may have been im-

properly disfavored as respects the opportunity to

serve as a grand jury foreperson (see Rose v. Mitchell,

443 U.S. at 558) is rapidly disappearing. Because the

Eleventh Circuit rule is an open invitation to every de-

fendant (regardless of race or sex) who is indicted by a

grand jury with a white male foreperson outside the

Third, Fourth and Ninth Circuits, to require the court

to account for any past underrepresentation of women

or minorities among grand jury forepersons, we be-

lieve, on balance,that a prompt resolution of the under-

lying issue is warranted.?°

that process in connection with the survey described in the text.

Similar action could be taken through the auspices of the Judi-

cial Conference, the Administrative Office of the U.S. Courts

and the Federal Judicial Center. We have called the attention of

the staff of the Administrative Office and the Federal Judic‘al

Center to the foreperson selection issue.

1° Even so, this case is not necessarily an ideal vehicle for

that purpose. The precise nature of petitioner’s claim is not en-

tirely clear and has apparently changed in the course of litiga-

tion. Compare pages 5-6 note 2, supra, with page 11 note 4,

supra. To the extent that petitioner relies on an equal protec-

tion theory he—like any white male defendant—is also con-

fronted by a standing requirement which constitutes an alterna-

tive basis for affirmance. See page 11 note 4, supra. We note,

as well, that the record of this case appears to contain no evi-

dence as to any duties carried out by federal grand jury

forepersons in the Eastern District of North Carolina apart

18

CONCLUSION

The petition for a writ of certiorari should be denied

as to questions 1 and 2 presented. We do not oppose

granting of the petition limited to the third question

presented.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JANIS H. KOCKRITZ

Attorney

NOVEMBER 1983

from the meager role outlined by Fed. R. Crim. P. 6(c). See

page 14 note 6, supra. Finally, we note that the petition ap

pears to have been filed one day out of time. See page 1, sypra.

Because petitioner’s claim does not relate to the process by

which his guilt was determined, the Court may prefer to reach

this issue in a case presenting no time problem. We anticipate

filing a petition for a writ of certiorari in United States v.

Cross, supra; petitions are presently pending in Nos. 83-681

and 83-690 to review the Third Circuit’s decision in Aimone.