Petition — Cronn v. United States

83-979 [Tes

NOV

No. 23 1983

ALEXANDER L

STEv,

CLERK —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DONALD LORRIN CRONN,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

ARCH C. McCCOLL, III

BRUNER, MCCOLL, ENGLAND,

McCCOLLOCH & MCCURLEY

The Katy Building, Suite 302

701 Commerce Street

Dallas, Texas 75202

(214) 744-5044

DAVID W. COODY COUNSEL OF RECORD

Of Counsel FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

TI.

DOES A FEDERAL CRIMINAL

DEFENDANT, WHO IS A WHITE

MALE, HAVE STANDING TO CHAL-

LENGE THE PURPOSEFUL DIS-

CRIMINATORY EXCLUSION OF

BLACKS, WOMEN AND HISPANICS

FROM THE POSITION OF GRAND

JURY FOREMAN?

II.

IS INVIDIOUS DISCRIMINATION

IN THE SELECTION OF FEDERAL

GRAND JURY FOREMEN A SIGNIF-

ICANT VIOLATION OF THE DUE

PROCESS CLAUSF OF THF FIFTH

AMENDMENT TO THE UNITED

STATES CONSTITUTION RE-

QUIRING DISMISSAL OF AN

INDICTMENT?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ADDRESS TO THE COURT

DECISIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

AND RULES INVOLVED

STATEMENT OF THF CASE

REASONS FOR REVIFW

I. STANDING

II. CONSTITUTIONAL SIGNIFI-

CANCF OF FEDFRAL GRAND

JURY FORFMEN

CONCLUSION

APPENDIX

TABLE OF AUTHORITIES

CASES

Guice v. Fortenberry,

661 F.2d 496 (5th Cir. 1981)....18

Peters v. Kiff, 407 U.S 6,7,8,9,

GOS CEPR ccccscereedsevee sess ceenneuaesaees

Rose v. Mitchell, 17,18

443 Usebe 545 fa, fp eres

United States v. Abell,

552 F.Supp. 316

Ds Me. a Pe eee CPS ty

United States v. Breland,

522 F.Supp. 468

Bats Gs ROOLS cbecadocrcrcoes oo Bek?

United States v. Carbrera-

Sarmiento, 533 F.Supp. 799,

(Boma Wabe S90 a ccccecteccscecest

United States v. Coletta,

682 F.2d 820 (9th Cir.

oy ee re res oe

United States v. Cronn,

F.2d (5th Cir., Sept.

28, BE Uh ee ee

United States v. Cronn,

559 F. Supp. 124

(N.D. Tex. BOER beeetecdececesvenee

United States v. Cross,

708 F.2d 631 (llth Cir. 1983)...9,15,18,19

ii

United States v. Hobby,

702 F.2d 466

(4th Gir « RS) 626.46 66%0 06d 0c Deane se

United States v. Holman,

680 F.2d 1340 (llth Cir.

RD as 6 ob Oo eee te obb ee 6eeee

United States v. Holman,

510 F.Supp. 1175

(N.D. Fla. 1981) ...cceeeeeeee 20

United States v. Jenison,

485 F.Supp. 655

4 Pe ee eee « Pee oy me

United States v. Layton,

519 F.Supp. 946 (N.D.

Chee Seal aues con ctcevieesecdOehh a7

United States v. Manbeck,

514 F.Supp. 141

[PeweGs -— BOOS debe cscdcercerccaagat

United States v. Musto,

540 F. Supp. 346

Qo ae Dl «<eedevienceoe weaaweat

United States v. Perez-

Hernandez, 672 F.2d 1380

(llth Care Ba) 460s oebesuc Bean

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V. 3,5,11,12

bec cde 00 00 000006666600 00800600088

18 G.8.C. Dt hsstnaevesiuce veel

18 SéoGe Rt)

iii

18 0.$.C. +e”: ee

28 U.S.C. CLASS L) cc cscocsossed

Fed. R. App. P.,

Rule ND uk octet iucae eee ee

Fed. R. Crim. P.,

Rule GUO ccescceeeeseseeenaenee

iv

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DONALD LORRIN CRONN,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

TO THF HONORABLE COURT:

COMES NOW the Petitioner, DONALD

LORRIN CRONN, who petitions this

Honorable Court to issue a writ of cer-

tiorari to review the judgment of the

United States Court of Appeals for the

Fifth Circuit and would show the Court as

follows:

DECISIONS BELOW

The opinion in this case by the

United States Court of Appeals for the

Fifth Circuit is found in United States

v. Cronn, F.2d (Sth Cir., Sept.

28, 1983) (not yet reported). The

district court opinion is reported in

United States v. Cronn, 559 F. Supp. 124

(N.D. Tex. 1982). Both opinions and the

judgment are included in the attached

Appendix (hereinafter App.).

JURISDICTION

On September 28, 1983, the United

States Court of Appeals for the Fifth

Circuit issued a judgment of affirmance

in this case. (App., p. 39-A) Peti-

tioner's Petition for Rehearing and

Suggestion for Rehearing En Banc were

denied on October 27, 1983, and

Petitioner's motion for a stay of the

mandate was granted by the court of

appeals until November 26, 1983, pursuant

to Fed. R. App. P., Rule 41(b). (App.,

pp. 41-A - 45-A.) The jurisdiction of

this Court to review the judgment of the

Fifth Circuit is provided by 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS

AND RULES INVOLVED

(A) U.S. Const. amend. V provides in per-

tinent part:

No person. shall...be

deprived of life, liberty,

Or property, without due

process of law....

(B) Fed. R. Crim. P., Rule 6(c) provides:

Foreman and Deputy Fore-

man. The Court shall ap-

point one of the jurors to

be foreman and another to be

deputy foreman. The foreman

shall have power to admi-

nister oaths and affir-

mations and shall sign all

indictments. He or another

juror designated by him

shall keep a record of the

number of jurors concurring

in the finding of every

indictment and shall file

the record with the clerk of

the court, but the record

shall not be made _ public

except on order of the

court. During the absence

of the foreman, the deputy

foreman shall act as fore-

man.

STATFMFNT OF THE CASE

Petitioner was convicted in the

District Court for the Northern District

of Texas on one count of conspiracy (18

U.S.C. $371), three counts of wire fraud

(18 U.S.C. §1343) and four counts of mail

fraud (18 U.S.C. §1341). Prior to trial

he moved to have his indictment dismissed

because of the discriminatory selection of

grand jury foremen. In that motion

Petitioner alleged that blacks, women and

Hispanics were systematically and discri-

minatorily excluded from the office of

grand jury foreman in the Northern

District of Texas, which exclusion vio-

lated the Due Process Clause of the Fifth

Amendment. To support these allegations,

Petitioner also moved to inspect the grand

jury selection records which would provide

evidence as to the race and gender of

grand jury foremen for use in establishing

a prima facie case of discriminatory

selection.

In an opinion issued August 4, 1983,

the district court denied Petitioner's

motion to inspect the grand jury selection

records. United States v. Cronn, 559 F.

Supp. 124 (N.D. Tex. 1982). (App., op.

29-A.) The court reasoned that Petitioner

was entitled to inspect the records only

if any demonstrated discrimination in

selecting the grand jury foreman would

require dismissal of the indictment.

Initially, the district court held that

pursuant to Peters v. Kiff, 407 U.S. 493

(1972), Petitioner had standing to chal-

lenge the discriminatory exclusion of

minority groups from the position of grand

jury foreman although Petitioner was a

white male. However, the court then found

that discriminatory selection of federal

grand jury foremen was constitutionally

insignificant, and even if proven, such

discrimination would not warrant’ the

dismissal of Petitioner's indictment.

Following Petitioner's conviction, he

appealed to the United States Court of

Appeals for the Fifth Circuit raising,

among other issues, the incorrectness of

the district court's ruling on the consti-

tutional significance of the federal fore-

man. The Government joined issue on the

question of significance, and the case was

orally argued. Neither in the district

court nor on appeal did the Government

challenge Petitioner's standing to make

this attack. Furthermore, when the

question of standing was raised by the

district court at a pre-trial hearing,

Petitioner explicitly relied upon Peters

v. Kiff, 407 U.S. 493 (1972) as the basis

for his claims. (App., pp. 46-A - 47-A.)

Despite these facts, a panel of the Fifth

Circuit on September 28, 1983, held that

Petitioner had not relied upon Peters, but

rather had made an equal protection claim

for which he did not have standing.

(App., p. 1.) Petitioner's Petition for

Rehearing and Suggestion for Rehearing Fn

Banc were denied by the Fifth Circuit on

October 27, 1983. (App., p. 41-A.) It is

this adverse judgment of which Petitioner

seeks review by this Court.

REASONS FOR REVIEW

IT.

STANDING

The issue of whether a white male has

standing to seek dismissal of his indict-

ment on the basis of discriminatory exclu-

sion of minorities from the office of

grand jury foreman has caused a signifi-

cant split among the federal courts of

appeals. The holding by the Fifth Circuit

below that Peters v. Kiff, 407 U.S. 493

(1972), did not provide standing for

Petitioner's attack on the unconstitu-

tional selection of federal grand jury

foremen is in direct conflict with deci-

sions by the Eleventh Circuit in United

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

(llth Cir. 1982), United States Vv.

Holman, 680 F.2d 1340 (llth Cir. 1983),

and United States v. Cross, 708 F.2d 631

(llth Cir. 1983). The Fifth Circuit

recognized that it was creating sucn a

Split in the Circuits. (App., Dd. 9-A.)

The decision below also implicitly

conflicts with the Pourth Circuit's opi-

nion in United States v. Hobby, 702 F.2d

466 (1983), cert. pending, wherein that

court decided the merits of the attack by

the appellants, who were male, on the

exclusion of women from the foreman's

position. The decision in United States

v. Coletta, 682 F.2d 820 (9th Cir. 1982),

in harmony with the decision herein by the

Fifth Circuit, adds to the conflict which

now involves differing opinions in four

circuits. This conflict should _ be

resolved.

The issue of standing in this kind of

case is an important one which should be

settled by this Court. Attacks on the

discriminatory selection of grand jury

foremen have often been made in the courts

below. See, e.g., United States v. Abell,

552 F.Supp. 316 (D. Me. 1982); United

States v. Musto, 540 F. Supp. 346 (D.N.J.

1982); United States Vv. Carbrera-

Sarmiento, 533 F.Supp. 799, (S.D. Fla.

1982); United States v. Breland, 522

10

F.Supp. 468 (N.D. Ga. 1981); United States

v. Layton, 519 F. Supp. 946 (N.D. Cal.

1981); United States v. Manbeck, 514

F.Supp. 141 (D.S.C. 1981); United States

v. Jenison, 485 F.Supp. 655 (S.D. Fla.

1979). It is likely that such challenges

will continue. Because of the uncertainty

in the application of the Peters v. Kiff

doctrine, standing will be a major

stumbling block unless resolved by this

Court.

The decision in Petitioner's case by

the Fifth Circuit takes too narrow a view

of the standing allowed by Peters v.

Kiff. Petitioner's factual allegations,

if proven, clearly demonstrated arbitrary

exclusion of women, blacks and Hispanics

from the position of grand jury foreman in

violation of the Due Process Clause of the

1l

Fifth Amendment. The court below held

that the failure to denominate the attack

as a “due process" violation of the Due

Process Clause took Petitioner outside the

coverage of Peters even though Petitioner

relied upon Peters as the basis for stand-

ing the only time such a question was

raised. (App., pp. 46-A - 47-A.) To hold

that Petitioner should be denied standing

where the facts he alleges otherwise show

a violation of the Fifth Amendment disre-

gards the reasons for the decision in

Peters. There, in the opinion by Justice

Marshall it was stated:

In light of the great poten-

tial for harm latent in an

unconstitutional jury-

selection system, and the

strong interest of the cri-

minal defendant in avoiding

that harm, any doubt should

be resolved in favor of

giving the opportunity for

12

challenging the jury to too

many defendants, rather than

giving it to too few.

Peters, 407 U.S. at 504 (footnote

omitted). Similar policy considerations

were involved in Justice White's opinion

in Peters, which was based upon statutory

grounds. Id. at 506-07.

The rigid compartmentalization of

Petitioner's claim as only an “equal

protection" claim for which he supposedly

lacked standing, even though alleged as a

violation of the Fifth Amendment's Due

Process Clause, calls into question the

proper scope of standing under Peters, and

also whether standing should have been

dispensed in such a niggardly manner as it

was in the court below. The courts of

appeals have struggled with this question,

reaching conflicting results. [In order to

13

resolve this conflict and set out the

limits on standing pursuant to Peters v.

Kiff, this court should grant Petitioner's

request for a writ of certiorari to the

United States Court of Appeals for the

Fifth Circuit.

II.

CONSTITUTIONAL SIGNIFICANCE OF

FEDERAL GRAND JURY FOREMEN

The issue briefed and argued by both

parties in the court of appeals below, but

not addressed because of its standing

decision, was whether the district court

erred in holding that discrimination in

selecting grand jury foremen was constitu-

tionally insignificant. Because it was

insignificant, the district court

reasoned, Petitioner's indictment could

not be dismissed even if such discrimina-

14

tion were conclusively proven. (App., p.

38-A.) Assuming the opinion below on

standing was wrong, the district court's

ruling on the constitutional significance

of the federal foreman must be addressed.

The significance question, like the

standing question, has caused a direct

split in the circuits. The Eleventh Cir-

cuit has consistently held that systematic

exclusion of groups from the position of

grand jury foreman is constitutionally

important. See, United States v. Cross,

708 F.2d 631 (llth Cir. 1983); United

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

(llth Cir. 1982). In contrast the Fourth

Circuit has held in United States v.

Hobby, 702 F.2d 466 (4th Cir. 1983), cert.

pending, that the federal grand jury

foreman's duties are only ministerial, and

15

thus, discriminatory selection of the

foreman does not affect the rights of

criminal defendants. Hobby is currently

pending a decision in this Court on a

petition for certiorari raising this

question of significance. In addition,

the Ninth Circuit's decision in United

States v. Coletta, 682 F.2d 820 (9th Cir.

1982) also conflicts with the Eleventh

Circuit decisions in holding that discri-

minatory selection of federal foremen does

not have such a significant unfair impact

so as to violate the due process require-

ments of the Fifth Amendment. This uncer-

tainty concerning a defendant's rights

against discrimination in the federal jury

system should be eliminated by review of

the problem by this Court.

16

Like the standing question, the signi-

ficance question has also been the source

of substantial litigation in the district

courts. See, e@.9., United States vy.

Abell, 552 F.Supp. 316 (D.Me. 1982);

United States v. Musto, 540 F.Supp. 346

(D.N.J. 1982); United States v. Carbrera-

Sarmiento, 533 F.Supp. 799 (S.D. Fla.

1982); United States v. Breland, 522

F.Supp. 468 (N.D. Ga. 1961); United States

v. Layton, 519 F.Supp. 946 (N.D. Cal.

1981); United States v. Manbeck, 514

F.Supp. 141 (D.S.C. 1981); United States

v. Jenison, 485 F.Supp. 655 (S.D. Fla.

1979). These cases illustrate the recur-

rent nature of the problem of discrimina-

tory grand jury foreman selection and the

proper remedy for such discrimination.

17

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

provided the main basis for these attacks.

In Rose, this Court assumed, without hold-

ing, that the discriminatory selection of

the Tennessee grand jury foreman required

dismissal of the indictment. This assump-

tion was adopted as law in Guice v.

Fortenberry, 661 F.2d 496 (5th Cir.

1981)(en banc) which involved Louisiana

aqrand jury foremen. Some courts, most

notably the Fourth circuit in United

States v. Hobby, 702 F.2d 466 (4th Cir.

1983), have held that discrimination

involving federal grand jury foremen is

insignificant because he does not have as

much power as the state foreman in Rose

and Guice.

The Eleventh Circuit has rejected this

distinction, and in United States. v.

18

Cross, 708 F.2d 631 (llth Cir. 1983), pro-

vided a well-reasoned analysis of the

foreman significance issue. That court

found that discriminatory selection of

federal grand jury foremen struck at the

same values recognized in Rose Vv.

Mitchell, 443 U.S. 545, 556 (1979), that

is the integrity of the judicial process

and the basic concepts of a democratic

society. Three reasons were given by the

court in Cross to support the conclusion

that this type of discrimination is signi-

ficant enough to require dismissal of a

federal indictment. First, as a matter of

law, the federal foreman has many duties

and responsibilities, for example, contact

with the district judge and the United

States Attorney, temporary excusal of

grand jurors, and consultation regarding

19

contempt proceedings against recalcitrant

witnesses. These duties are of such an

extent and nature to render the foreman's

position important. This importance is

also demonstrated by judges who seek out

persons who have strong leadership quali-

ties, educational backgrounds, occupa-

tional experience and management ability

for selection as foreman. See, United

States v. Holman, 510 F.Supp. 1175, 1180

(N.D. Fla. 1981); United States Vv.

Jenison, 485 F. Supp. at 665-66. The

second supporting reason noted by the

court of appeals was that appeintment as

foreman could endow a person with enhanced

influence in decision-making. Third, it

was unseemly to allow challenges to the

discriminatory selection of state grand

20

jury foremen while ignoring the same type

of discrimination in the federal system.

In Rose v. Mitchell and the many cases

that preceded it, this Court has con-

sistently recognized the insidious nature

of discrimination and has required that

convictions be set aside even though there

was no showing of harm to a particular

defendant. The application of this policy

to foreman discrimination has split the

courts of appeals and raised doubt as to

the remedies available for such discrimi-

nation. Because this is an issue involv-

ing considerable litigation, and as in

other discrimination cases, is one of

importance to society, this Court should

grant a petition for writ of certiorari to

review the ruling below by the district

court that discriminatory selection of

21

federal grand jury foremen is insignifi-

cant.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Peti-

tioner, DONALD LORRIN CRONN, prays that

this Court grant his petition for a writ

of certiorari to review the judgment of

the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

ARCH C. McCCOLL, III

BRUNER, MCCOLL, ENGLAND,

McCCOLLOCH & MCCURLEY

The Katy Building, Suite 302

701 Commerce Street

Dallas exas 75202

ARCH C. MCCOLL, SN

COUNSEL FOR PETITIONER

VID W. COO

Of Counsel

22

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

DONALD LORRIN CRONN,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

APPENDIX

ARCH C. MCCOLL, III

BRUNER, MCCOLL, ENGLAND,

MCCOLLOCH & MCCURLEY

The Katy Building, Suite 302

701 Commerce Street

Dallas, Texas 75202

(214) 744-5044

DAVID W. COODY COUNSEL OF RECORD

Of Counsel FOR PETITIONER

United States of America,

Plaintiff-Appellee,

Vv.

Donald Lorrin Cronn,

Defendant-Appellant.

No. 82-1614.

United States Court of Appeals,

Fifth Circuit.

Sept. 28, 1983.

Before CLARK, Chief Judge, GEE and

POLITZ, Circuit Judges.

GEE, Circuit Judge:

Today's issue of significance is

whether a criminal conviction in an

otherwise fair trial 1 must be reversed

on a ground far removed from guilt or

innocence of the accused. ”* Defendant

Cronn, an Anglo male, asserts that his

lwe so conclude as to Cronn's other

points for reversal, discussed below

with the brevity that they merit.

*In accordance with Court policy,

this opinion, being one which ini-

tiates conflict with the rule declared

in another circuit, was circulated

l-A

conviction of mail fraud and related

offenses must be overturned because

females and members of racial minorities

may have been underrepresented in tenure

as grand jury foremen at the time of his

indictment. This circumstance, which, in

the posture of the appeal, we must assume

existed, is said to have denied him his

Fifth Amendment right to equal protection

of the laws. No contention is made that

the grand jury itself, from which the

court selected a foreman, was improperly

constituted.

The district court, 559 F.Supp. 124,

denied Cronn's motion for access to grand

jury selection records, thus aborting his

before release to the entire Court,

and rehearing en banc was not voted by

a majority of the judges in active

service.

attempt to establish underrepresentation.

Although the court concluded that despite

his non-minority status Cronn possesses

Standing to raise the complaint, it

determined as well that “the position of

a federal grand jury foreman is not

constitutionally significant.” In s0

doing, it distinguished our decision in

Guice v. Fortenberry, 661 F.2d 496 (5th

Cir.1981) (en banc), and that of the

Supreme Court in Rose v. Mitchell, 443

U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739

(1979), both concerned with foremen of

State grand juries, on two grounds: that

the federal foreman was selected from

among the members of the already-

constituted (and properly so) grand jury,

rather than added to them as in Rose and

Guice; and that his powers, unlike the

greater ones of the state foremen, were

merely ministerial. We affirm, but on a

narrow and basic ground--one that allows

us to leave decision of these broad and

knotty issues for another day .2

From the presentation of the initial

motion to the submission of the briefs

and argument of the case before us,

plaintiff has specifically denominated

his claim as one arising under "the equal

protection component of the Fifth Amend-

ment to the United States Constitution."

(App.Br. p. 7). In none of his briefs to

this court is any other due process con-

tention made. Nor was any made in his

district court filings or discussed in

the opinion of that court. Indeed, the

only time the words "due process" appear

2a conflict already exists within

the circuits about whether the posi-

tion of federal foreman is constitu-

tionally significant. Compare United

States v. Hobby, 702 F.2d 466 (4th

4-A

in any brief filed with us by Cronn is in

an observation that, as in the case of a

State defendant relying on the explicit

Equal Protection Clause of the Fourteenth

Amendment, "(t)his equal protection

attack is also available to federal

defendants through the Due Process Clause

of the Fifth Amendment." (App.Br. p. 7).

It is therefore plain that Cronn has

elected, for whatever reasons, to advance

no broader or additional due process

challenge and to rely solely on the equal

protection component. Based on the ana-

lysis below we determine that, for pur-

poses of standing, challenges based on

equal protection and due process analyses

Footnote 2 continued:

Cir.1983) (not so), with United

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

1380 (llth Cir.1982), and United

States v. Cross, 708 F.2d 631 (llth

Cir.1983) (Significant).

are distinct. Because Cronn has raised

only an equal protection challenge, it is

in this context alone that we review his

standing. We cannot and will not con-

sider a contention presented neither to

the trial court nor to us. 3

The district court, however, failed to

distinguish between due process and equal

protection challenges to grand jury com-

position, and held that this plaintiff

had standing. In so doing, the court re-

lied upon a recent case in the Eleventh

Circuit. United States Vv. Perez-

Hernandez, 672 F.2d 1380. We set out

the reasoning of Perez in this issue in

full:

Before addressing the merits

of appellant's case, we must

first discuss a preliminary

question of standing. Appellant

is a male of hispanic descent

who claims a denial of equal

3we note especially that we do not

deal here with a motion for more defi-

nite statement, with an issue tried as

6-A

protection because blacks and

women have been excluded from

serving as grand jury foremen.

Conflicting language in several

recent Supreme Court cases has

clouded his right to assert this

claim. In Peters v. Kiff, 407

U.S. [493] at 498, 92 S.Ct.

[2163] at 2166 [33 L.Ed.2d 83],

the opinion of the Court

discussed this question in an

equal protection context and

concluded that “when a grand or

petit jury has been selected on

an impermissible basis, the

existence of a constitutional

violation does not depend on the

circumstances of the person

making the claim." Three years

later, the Court reaffirmed this

holding, although in the context

of a Sixth Amendment claim.

Taylor v. Louisiana, 419 U.S.

(522], 95 S.ct. [692] at 695 [42

L.Ed.2d 690]. In 1977, however,

the Court used. significantly

different language to address

the same question: "thus, in

order to show that an equal pro-

tection violation has occurred

in the context of grand jury

selections, the defendant must

Footnote 3 continued:

though pled, or with any other tech-

nical matter of pleading. Instead, we

view a potential contention that was

never advanced at all, neither "pled"

nor “tried,” either here or to the

district court.

show that the procedure employed

resulted in substantial under-

representation of his race or of

the identifiable group to which

he belongs." Castaneda _v.

Partida, 430 U.S. 482, 494, 97

S.Ct. 1272, 1280, 51 L.Ed.2d 498

(1977) (emphasis added). In

Rose v. Mitchell, 443 U.S. 545,

99 S.Ct. 2993, 61 L.Ed.2d 739

(1979), the opinion of the Court

at first seems to support the

holding in Peters yv. Kiff:

"(T]he Court has recognized that

a criminal defendant's right to

equal protection of the laws has

been denied when he is indicted

by a grand jury from which mem-

bers of a racial group purpose-

fully have been excluded." Rose

v. Mitchell, 443 U.S. at 556,

99 S.Ct. at 3000. Later in the

opinion, however, the trouble-

some language from Castaneda v.

Partida is quoted with approval.

Td. [430 U.S.] at 565, 99 S.Ct.

at 3005. Despite this apparent

conflict, we conclude that

appellant is not precluded from

bringing this claim even though

he is not black or female. The

holding in Peters v. Kiff is

clear and unambigous and has

never been expressly overruled.

On the other hand, the disputed

language in Castaneda v. Partida

possibly refers only to the par-

ticular defendants involved in

that case. Without more direc-

tion from the Supreme Court, we

cannot hold otherwise.

672 F.2d at 1385-86 (footnotes omitted).

Despite our customary deference to our

sister circuit, we are unable to concur

in this well-stated reasoning.

At the onset we conclude that Peters

v. Kiff, insofar as it discusses’ the

right of a white defendant not to have

black citizens systematically excluded

from his grand or petit jury, does not

rest on constitutional equal protection

grounds. 4 Since it does not, but

rather on due process and in some instan-

ces Sixth Amendment ones, we do not see

that “apparent conflict" which concerned

the Perez court between it and the Rose

and Castaneda holdings. We suggest with

4°the Perez court represented that

the Peters opinion “discussed” the

question of a defendant's standing "in

an equal protection context and

concluded that 'when a grand or petit

9 -A

Footnote 4 continued:

jury has been selected on an imper-

missible basis, the existence of a

constitutional violation does not

depend on the circumstances of the

person making the claim.'" Perez 672

F.2d at 1385-86 (citing Peters, 407

U.S. at 498, 92 S.Ct. at 2166). [In

this specific context, we believe the

Perez court misunderstood the meaning

of the Peters opinion. The language

quoted by Perez means only that the

"existence" of a “violation does not

depend on the circumstances of the

person making the claim. In the

language following the Court ex-

plained, "(i]t is a different ques-

tion, however, whether petitioner is

entitled to the relief he seeks on the

basis of that constitutional basis."

This question--that of standing to

object--was not analyzed in the equal

protection context, but in the due

process context.

Furthermore, we do not conclude so

readily as did the Perez court that

the Rose opinion "at first seems to

support the holding in Peters v.

Kiff," at least not as Peters is

interpreted by the Perez court. The

opinion in Rose does state, as the

Perez court represents, that earlier

Supreme Court decisions have

"recognized that a criminal

defendant's right to equal protection

of the laws has been denied when he is

indicted by a grand jury from which

members of a racial group purposefully

have been excluded." Yet, the court

in Rose cited in support of this pro-

10 - A

deference that Peters' due process analy-

sis did not bear on Perez's equal protec-

tion claim. Nor do we see how Peters

could figure in today's decision.

The plurality opinion in Peters 5

reviewed a claim brought by a white

defendant that discrimination against

blacks in the selection of his grand jury

violated his consitutional rights under

the due process and equal protection

clause. The State in that case attacked

plaintiff's standing, arguing that absent

a specific showing of harm only a member

of the discriminated-against minority

Footnote 4 continued:

position two cases, each of whcih

upheld a black defendant's right to

object to the exclusion of blacks from

his grand jury. Limited as it should

be to this proposition, it does not

bear directly on the question before

us or the court in Perez.

5 The majority in Peters was made up

of three Justices concurring in

Justice Marshall's opinion and three

joining Justice White's concurrence in

the judgment. Only Justice Marshall's

ll - A

could rest on the presumption that a

grand jury so constituted would be preju-

diced against him. The Supreme Court

responded that this “argument takes too

narrow a view of the kinds of harm that

flow from discrimination in jury

selection." 407 U.S. at 498, 92 S.Ct. at

2166. The Court noted that the exclusion

of minorities from jury service "offends

a number of related constitutional

values." Id.

The Court first reviewed cases in

which black defendants had presented

equal protection challenges to the

discriminatory exclusion of other blacks

Footnote 5 continued:

opinion rests on the right of a white

defendant not to have black jurors

systematically excluded from his

juries. Justice White's concurrence

rests on statutory grounds not urged

here.

12 - A

from their grand juries. In concluding

its equal protection discussion, the

Peters Court reasoned that "[bJecause

each of these three cases was amenable to

decision on the narrow basis of an analy-

Sis of the Negro defendant's right to

equal protection, the Court brought all

three under that single analytical

umbrella." Id. at 499, 92 S.Ct. at 2167

(emphasis added). But the defendant in

Peters was white, and so the court pro-

ceeded to examine the standing of a white

defendant under alternative constitu-

tional values. The Court explained that

because of its disposition of the case,

it had not been necessary to consider

defendant's claim that his own rights

under the Equal Protection Clause had

13 - A

been violated. Id. at 497 5, 92 S.Ct. at

2165 n. 5. °

The Court considered other specific

constitutional values and their effect on

the class of defendants having standing

to object. It concluded that the exclu-

sion of a discernible class from jury

service would violate the right preserved

by the Sixth Amendment to "a represen-

tative cross-section of the community."

Id. at 500, 92 S.Ct. at 2167 (citing in

Williams v. Florida, 399 U.S. 78, 100, 90

S. Ct. 1893), 1906, 26 L.Bd.2d 446

(1970). But the Sixth Amendment was not

applicable in Peters; the Court instead

based its decision entirely upon the due

process analysis.

6 Indeed, the dissent of the Chief

Justice squarely so observes, without

protest from Justice Marshall:

While the opinion of Mr. Justice

Marshall refrains from relying on

the Equal Protection Clause, it

14 - A

Starting with the premise that "[a]

fair trial in a fair tribunal is a basic

requirement of due process," the Court

reasoned that an unconstitutionally com-

posed grand jury violated the due process

rights of all defendants. The Court

relied upon an expanded view of standing

in this context, because due process

violations had previously been found

absent a showing of actual bias. The

likelihood or appearance of bias in the

composition of the tribunal was suf-

ficient to support a due process claim:

"{iJllegal and unconstitutional jury

selection procedures cast doubt on the

Footnote 6 continued:

concludes that if petitioner's

allegations are true, he has been

denied due process of law.

407 U.S. at 509, 92 S.Ct. at

2172.

1S - A

integrity of the whole judicial process."

Id. 407 U.S. at 502, 92 S.Ct. at 2168.

It was only in the context of recognized

due process values that the white defen-

dant in Peters was granted standing.

We do not suggest that the election of

the court in Peters to decide standing in

that case under a due process rather than

an equal protection analysis precludes a

similar conclusion under equal protec-

tion. We hold only that because the

Court did mot reach the question of

Standing under the equal protection anal-

ysis in that case, we are compelled to do

so today. As it bears on this question,

we read Peters to stand for the proposi-

tion that objections to the composition

of a grand jury under the equal protec-

tion and due process analyses are

16 - A

distinct, and that the former is likely a

more “narrow basis of analysis." Id. at

499 s.ct. at 2167. ’”

Against this background, we decide the

question based on a more recent Supreme

Court decision analyzing the question of

standing to object to grand jury selec-

tion specifically under the equal protec-

tion analysis. Rose v. Mitchell, 443

U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739

(1979). Cronn makes no complaint that

the (numerical) minority of which he is a

member--Anglo males--has been discrimi-

nated against in foreman’ selections.

This is fatal to his equal protection

contention. Writing in Rose, a case

involving claimed discrimination in

selection of grand jury foremen and

7 that equal protection may be more

narrowly drawn was also suggested by

the Supreme Court in Bolling v.

Sharpe:

17 - A

squarely in point on this issue, the

Supreme Court reiterated its earlier

holding in Castaneda, quoting from that

opinion:

That is “in order to show that an

equal protection violation has

occurred in the context of grand jury

[foreman] selection, the defendant

must show that the procedure employed

resulted in substantial underrepresen-

tation of his race or of the identi-

fiable group to which he belongs."

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

494, 51 L.Ed.2d 498, 97 S.Ct. 1272

{at 1280).

Id. at 565, 99 S.Ct. at 3005 (emphasis

added). We are not free either to disre-

Footnote 7 continued:

The “equal protection of the laws"

is a more explicit safeguard of

prohibited unfairness than "due

process of law," and, therefore,

we do not imply that the two are

always interchangeable phrases.

But, as this Court has recognized,

discrimination may be so unjusti-

fiable as to be violative of due

process.

347 U.S. 497, 74 S.Ct. 693, 694, 93

L.Ed. 884 (1954).

18 - A

gard or to expand upon the express lan-

guage of the Court, writing on the

precise legal point at issue today, espe-

cially where it is the Court's last word

on the subject and where the Court pro-

ceeded to evaluate the evidence in the

case before it exactly in accord with its

statement of the proof required.

Logic indicates that equal protection

considerations are not involved in the

claim of a white male not to have females

and racial minorities excluded from the

judicial process as it is applied to him.

The essence of an equal protection claim

is that other persons similarly situated

as is the claimant unfairly enjoy bene-

fits that he does not or escape burdens

to which he is subjected. This sort of a

contention on Cronn's behalf might be

19 - A

Stated, for example, in such terms as

that his right to be tried by a petit

jury containing members of his own ethnic

group was infringed by the systematic

exclusion of its members from venires.

Stated or unstated, a claim that others

similarly situated as he is--members of

groups that are not so excluded from jury

service--are unfairly favored over him in

this regard is an essential component of

such a claim. Equal protection claims

are of their nature personal, to be

stated in terms of one's own rights or

those of a class in which one claims

membership; logically, Cronn lacks

standing to complain of unequal treatment

accorded other persons or classes of

which he is not a member.

20 - A

So much for rigorous logic. We are

aware that it has not always carried the

day where standing to assert the consti-

tutional rights of third persons is at

issue. Especially in First Amendment

questions involving freedom of expres-

sion, the Court has, for example, tended

to examine the validity of a statute on

its face--sometimes at the behest of per-

sons to whom its unconstitutionality as

applied is more unlikely. A noted com-

mentator suggests that this tendency pro-

bably results from the threat that a

broad statute may pose to free

expression. C. Wright, The Law of

Federal Courts 73 & n. 71 (1983) (and

cases cited therein). But such

challenges also have been entertained in

other First Amendment contexts. Pierce

2l1-A

v. Society of Sisters, 268 U.S. 510, 45

S.Ct. 571, 69 L.Ed. 1070 (1925)

(parochial school successfully asserted

rights of students and parents against

statute requiring public education

exclusively). Even in the area of equal

protection such departures from the rule

that one may not assert the rights of

another are not unknown. Buchanan v.

Warley, 245 U.S. 60, 38 S.Ct. 16, 62

L.Fd. 149 (1917). There a white seller

seeking specific performance of a real

estate sales contract with a black

purchaser was heard to assert that a city

ordinance barring black persons from the

area concerned was unconstitutional, and

this over the assertion of the ordinance

as a defense by the purchaser. These

are, however, exceptional instances and

22 - A

ones--except perhaps those regarding free

expression--where the rights of the

plaintiff derive from the same nexus and

stand in a symbiotic relationship to

those of the third party. Perhaps the

rule to be deduced is that any part to a

consensual and existing relationship that

is regulated by statute will be allowed

to assert the rights of the other. See

Griswold v. Connecticut, 381 (1965)

(physician furnishing contraceptives to

patients); C. Wright, supra, at 73.

Nothing of this sort is presented by

Cronn's equal protection contention. It

is vintage jus tertii, and we conclude

that the general rule against enter-

taining such equal protection claims

should prevail. This seems, indeed,

especially so where at all times during

23 - A

this litigation the due process attack

sanctioned by Peters v. Kiff, 407 U.S.

493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972),

lay ready to Cronn's hand but was not

taken up.

Cronn advances two lesser points for

reversal which merit brief discussion.

The first complains of the trial court's

refusal to deliver a tendered charge

defining “reckless indifference” as used

in a portion of the mail fraud charge on

which he was convicted. The relevant

portion of the charge reads as follows:

A statement oor representation is

"false" or “fraudulent” within the

meaning of this statute if it relates

to a material fact and is known to be

untrue or is made with reckless indif-

ference as to its truth or falsity,

and is made or caused to be made with

intent to defraud.

During the charge conference appel-

lant s counsel requested that the follow-

24 - A

ing instruction be read to the jury to

explain the meaning of making a repre-

sentation with "reckless indifference" as

to its truth and falsity:

In this context “reckless indif-

ference" means that a defendant must

have actually been aware of a high

probability that the statements were

untrue, and he must have consciously

disregarded that high probability.

The general rule in our Circuit as

regards jury instruction is:

The primary purpose of jury instruc-

tions is to define with substantial

particularity the factual issues, and

clearly instruct the jurors as to the

principles of laws which they are to

apply in deciding the factual issues

involved in the case before them.

United States v. Gilbreath, 452 F.2d 992,

994 (Sth Cir.1971). When called upon to

review the adequacy of jury instructions,

an appellate court must examine the

instructions as a whole, rather than

merely viewing the failure to give any

25 - A

one instruction independently. United

States v. Grote, 632 F.2d 387 (5th

Cir.1980); United States v. Leal, 547

F.2d 1222 (5th Cir.1977). The proper

standard of review, therefore, is

"whether the court's charge as a whole

was a correct statement of law." United

States v. Arguelles, 594 F.2d 109, 112 n.

3 (Sth Cir.1979).

Certainly, the instructions given are

on their face "a correct statement of

law." They were taken from a standard

work, We conclude that in context as

given and taken as a whole they fairly

present the factual issues. The terms

"reckless" and "indifference" either

alone or in combination, carry their nor-

mal meaning in the context and are

scarcely words of art. In order to con-

26 - A

vict, the jury was required to find not

only the presence of "reckless

indifference" in the making of the state-

ments in question, but that they were

made with "intent to defraud." Though

the definitions are fairly circular, they

present the concept fairly.

The second point complains of the

exclusion of the testimony of an expert

witness, where the district court deter-

mined the proffered witness was not qua-

lified. Trial courts exercise a wide

discretion as to admission and exclusion

of evidence and an unusually wide one as

to the testimony of expert witnesses.

Salem v. United States Lines Co., 370

5.8. Se - 33s; CB Ce. 2339. 1332, 8

L.@d.2d 313 (1962); Perkins v. Volkswagen

of America, Inc., 596 F.2d 681, 682 (5th

27 - A

Civ .ad7d). We conclude that it was not

exceeded here.

AFFIRMED.

28 - A

United States of America,

Vv.

Donald Lorrin Cronn,

No. CR 3-82-071

United States District Court

N.D. Texas,

Dallas Division.

Aug. 4, 1982

MEMORANDUM OPINION AND ORDER

This case is presently before the

Court on Defendant's motion to make

available to the Defendant and his coun-

sel the records of grand jury selection.

Defendant wants to adduce evidence to

support his motion to dismiss the indict-

ment based on discriminatory selection of

grand jury foremen. Defendant relies

solely on the Fifth Amendment. If

Defendant has a right to a dismissal of the

indictment on the basis of discriminatory

selection of grand jury foremen, it

29 - A

follows that he has a right to have

access to the records of grand jury

selection. Therefore, the issue before

the Court is whether Defendant would be

entitled to a dismissal of the indict-

ment, assuming an appropriate showing of

discrimination in the selection of grand

jury foremen and further assuming the

government fails to rebut such Showing.

I. STANDING

Defendant is a White male. He alleges

that during the period from 1970 through

1982, members of constitutionally recog-

nNizable Minority groups have been uncon-

Stitutionally Precluded from Service as

grand jury foremen. The Fifth Circuit

has never directly been faced with the

issue of whether a non-Minority has

Standing to assert an equal protection

Claim based on the underrepresentation of

30 - A

minorities on a grand jury. Two district

courts have denied standing in this

situation based on the following language

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

494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498

(1977), quoted in Rose v. Mitchell, 443

U.S. 545, 565, 539 S.Ct. 2993, 3004, 61

L.Ed.2d 739 (1979): "Thus, in order to

show that an equal protection violation

has occurred in the context of grand jury

selections, the defendant must show that

the procedure employed resulted in

substantial underrepresentation of his

race or of the identifiable group to

which he belongs." (emphasis added).

However, this Court finds the reasoning

in U.S. v. Perez-Hernandez, 672 F.2d 1380

(llth Cir. 1982) and U.S. v. Breland, 522

F.Supp. 468 (N.D. Ga. 1981) more per-

suasive on this point. These opinions

31 -A

rely on Peter v. Kiff, 407 U.S. 493, 92

S.Ct. 2163, 33 L.Ed.2d 83 (1972) wherein

the Supreme Court concluded the following:

In light of the great po-

tential for harm latent in

an unconstitutional jury-

selection system, and the

strong interest of the cri-

minal defendant in avoiding

that harm, any doubt should

be resolved in favor of

giving the opportunity for

challenging the jury to too

many defendants, rather

than giving it to too few.

As pointed out by the llth Cir. in

Perez-Hernandez, supra, at 1386 "“"[t]Jhe

holding in Peters v. Kiff is clear and

unambiguous and has never been expressly

overruled." Although the Castaneda and

Rose opinions are more recent, in each

case the defendant was in fact a member of

a minority group. Thus, the issue of

whether a non-minority in fact has stand-

ing to assert underrepresentation of mi-

norities has not been directly reassessed

32 - A

by the Supreme Court. Under the Supreme

Court authority outlined above, I believe

that a non-minority has standing to assert

a challenge to the minority representation

on a grand jury. However, because I

conclude in Part II of this memorandum

opinion that the duties of the grand jury

foreman are ministerial and not of consti-

tutional significance, it is not necessary

to this ruling to determine standing.

II. SELECTION OF GRAND JURY FOREMEN

This issue of whether a federal defen-

dant has a right to challenge the selec-

tion of the grand jury foreman has never

been squarely faced by the Supreme Court.

This issue has been addressed by only one

Circuit Court. United States Vv.

Perez-Hernandez, 672 F.2d 1380 (llth Cir.

1982). The Eleventh Circuit Court held

that the defendant does have a right to

33 - A

nondiscriminatory selection of federal

grand jury foremen under the 5th

Amendment. This result was’ reached

through analogy to 14th Amendment cases

which have held that a state defendant has

a right to challenge a discriminatory

selection of foremen which is co-equal to

the right to challenge discriminatory

selection of the grand jury members.

Guice v. Fortenberry, 661 F.2d 496 (5th

Cir. 1981) per curiam.

The Supreme Court assumed in Rose vy.

Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61

L.Fd.2d 739 (1979) that a conviction must

be set aside for discrimination in the

selection of grand jury foremen in the

context of a 14th Amendment challenge to

the selection process used in Tennessee.

In Guice v. Fortenberry, 661 F.2d 496 (5th

Cir. 1981), the Fifth Circuit accepted

34 - A

this assumption. However, Rose and Guice

are not controlling under the facts of

this case.

Both Rose and Guice involved challenges

to state selection procedures for grand

jury foremen. In the Rose case the fore-

man was chosen by the judge from the en-

tire population. The foreman was then

added to the randomly chosen grand jury as

a thirteenth member. In Guice the foreman

was selected from the 40 member venire and

then the remaining 11 members of the

grand jury was selected randomly from the

remaining 39 veniremen. Thus, each case

presents a situation where discrimination

in the selection of the foreman may result

in a discriminatorily selected grand jury

as a whole. This is not the case in the

federal selection of a grand jury foreman.

A panel of 23 grand jury members is first

35 - A

selected in a manner which is not chal-

lenged here. From this presumptively fair

cross-section cf the population one member

is selected by a judge to act as foreman.

There is no chance that discrimination in

the selection of the foreman would upset

the balance of the grand jury by adding a

discriminatorily selected member.

The nature of the duties and the power

of the grand jury foreman is significantly

different in the federal system than under

the facts of either Rose or Guice. The

Tennessee grand jury foremen challenged in

Rose aid the district attorney in investi-

gation criminal activity, may issue sub-

poenas, and must sign an indictment in

order to prevent a fatal defect in the

indictment. See Rose v. Mitchell, 443

U.S. at 548 n. 2, 99 S.Ct. at 2996 n. 2;

Bird v. State, 103 Tenn. 343, 52 S.W. 1076

36 - A

(1899). The Louisiana grand jury foremen

challenged in Guice are likewise charged

with an active role in the pursuit of cri-

minal activities. Guice, supra at 5ll.

On the other hand a federal grand jury

foreman merely administers oaths, signs

indictments and keeps clerical records.

See Rule 6 of the Federal Rules of

Criminal Procedure. These are clearly

simply ministerial duties. Because I find

that the duties of a federal grand jury

foreman are not constitutionally signifi-

cant, I hold that Defendant Donald Lorrin

Cronn does not have a right under the 5th

Amendment to challenge selection of grand

jury foremen as discriminatory.

In conclusion, I find that the position

of a federal grand jury foreman is very

different from the position of the state

grand jury foremen challenged in Rose and

37 - A

Guice, and thus these cases are not con-

trolling. I further find that the posi-

tion of a federal grand jury foreman is

not constitutionally significant. There-

fore, the Defendant in this case has no

cause of action under the 5th Amendment to

challenge the selection procedure used for

federal grand jury foremen. It is accor-

dingly

ORDERED that Defendant Cronn's motion

to make available the records of grand

jury selection for the purpose of adducing

evidence in aid of Defendant's motion to

dismiss the indictment based on discrimi-

natory selection of grand jury foreman be

and hereby is DENIED in all things.

38 - A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1614

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD LORRIN CRONN,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District

of Texas

Before CLARK, Chief Judge, GEE and POLITZ,

Circuit Judges

JUDGMENT

This cause came on to be heard on

the record on appeal and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the said District

39 - A

Court in this cause be, and the same

hereby, affirmed.

September 28, 1983

ISSUED AS MANDATE:

40 -A

is

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82 1614

UNITED STATES OF AMFRICA,

Plaintiff-Appellee,

versus

DONALD LORRIN CRONN,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District

of Texas

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN ~ BANC

(Opinion September 28, 5 Cir., 1983

"°0" Wesber 27, 1963)

PER CURIAM:

(x) The Petition for Rehearing is

DENIED and no member of ths panel nor

Judge in regular active service of the

Court having requested that the Court be

4.1 -A

polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local

rule 35) the Suggestion for Rehearing En

Banc is DENIED.

( ) The Petition for Rehearing is

DENIED and the Court having been polled at

the request of one of the members of the

Court and a majority of the Circuit Judges

who are in regular active service not

having voted in favor of it, (Federal

Rules of Appellate Procedure and Local

Rule 35) the Suggestion for Rehearing En

Ban is also DENIED.

( ) A member of the Court in active

service having requested a poll on the re-

consideration of this cause en banc, and a

majority of the judges in active service

not having voted in favor of it, rehearing

en banc is DENIED.

ENTERED FOR THE COURT:

THOMAS GIBBS GEF

UNITED STATES CIRCUIT JUDGE

42 -A

IN THF UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82 1614

UNITED STATES OF AMFRICA,

Plaintiff-Appellee,

versus

DONALD LORRIN CRONN,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District

of Texas

ORD E R:

{ ] The motion of appellant, Donald Lorrin

Cronn, for [x] stay [ ] recall and stay of

the issuance of the mandate pending peti-

tion for writ of certiorari is DENIED.

(x] The motion of appellant, Donald Lorrin

Cronn, for [x] stay [ ] recall and stay of

the issuance of the mandate pending peti-

43 - A

tion for writ of certiorari is GRANTED to

and including November 26, 1983, the stay

to continue in force until the final dis-

position of the case by the Supreme Court,

provided that within the period above men-

tioned there shall be filed with the Clerk

of this Court the certificate of the Clerk

of the Supreme Court that the certiorari

petition has been filed. The Clerk shall

issue the mandate upon the filing of a

copy of an order of the Supreme Court

denying the writ, or upon the expiration

of the stay granted herein, unless the

above mentioned certificate shall be filed

with the Clerk of this Court within that

time.

{ ] The motion of

for a further stay of the issuance of the

mandate is GRANTED to and including

44 -A

, under the same conditions as

set forth in the preceding paragraph.

{ ] The motion of

for a further stay of the issuance of the

mandate is DENIED.

THOMAS GIBBS GEE

UNITED STATFS CIRCUIT JUDGE

45 -A

EXCERPT FROM PRE-TRIAL HEARING

28

selected, I would think that any member

thereof would be appropriate as foreman.

MR. McCCOLL: Well, that's not

exactly the case law -- as I read the

cases, Your Honor, I may be wrong, but

that's not my interpretation of the case.

And I cite specifically United States v.

Perez-Hernandez. 672 Federal 2d 1380. And

there the Court relied on a Fifth Circuit

holding which talked about the --

THF COURT: Is that an Eleventh

Circuit case?

MR. McCOLL: Yes, sir. But it

relied on a Fifth Circuit case which

accepted the rational that we're -- that

we're going forward on. It's just simply

in the last ten years that there has never

been a foreman that -- that -- that repre-

46 - A

sents -- is representative of a cognizable

group in a community --

THE COURT: Well, that's true. But

let's let the record reflect that the

defendant Cronn is a Caucasian male, is he

not?

MR. McCOLL: Yes, sir. But under

Peters v. Kiff I don't think that's a

problem.

THE COURT: Well, it may not be a

problem, but your complaint is that -- and

as a matter of fact, the grand jury that

indicted him had a female foreman, which

you can tell, obviously, from the indict-

ment itself. Is that not correct?

47 -A