# Petition — Cronn v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0763%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 1217

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0763%3A1. Public record. Not legal advice.