Appendix — LaChance v. United States
Supreme Court brief1986
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(9 Supreme Court, U.S.
ve) 8 | eC! 1966
JOSEPH F. SPANIOL, JR.
CLERK
IN THE SUPREME COURT OF THE UNITFD! STATES
October Term, 1985
WILLIAM G. LaCHANCE, WILLIAM F. ZIMMERLI,
Petitioners,
-VS-
UNITED STATES OF AMERICA,
Respondent
APPENDIX TO PETITION FOR A WRIT
-OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
IRA B. GRUDBERG, §SQ.
Jacobs, Grudberg, Belt & Dow, P.C.
350 Orange Street
New Haven, Connecticut 06503
(203) 772-3100
Counsel of Record for Petitioner Zimmerli
NINA J. GINSBERG, ESQ.
Zwerling, Mark, Ginsberg and Lieberman, P.C.
1001 Duke Street
Alexander, Virginia 22314
(703) 549-4333
Counsel of Record for Petitioner LaChance
ALICE S. MISKIMIN, ESQ.
Jacobs, Grudberg, Belt & Dow, P.C.
350 Orange Street
New Haven, Connecticut 06503
Of Counsel
2.
3.
TARLE OF CONTENTS
Page
Ruling on Motion for Rehearing,
filed May 15, Sees iateccesécoscsodhs
Opinion and Judgment of the
Court of Appeals for the
Second Circuit, filed
April 14, EE
Transcript, Pretrial Proceedings,
May 2, 1984, United States
District Court, District of
Connecticut, No. B-83-57 (TFDG)....A63
Ruling, July 10, 1984, endorsed
on Defendants’ Answer Verified
Motion to Dismiss Indictment and
Stay Proceedings on Grounds of
Substantial Failure to Comply
with law on the Selection of
Grand and Petit Jurors. ..++seeee++ A606
Verified Motion to Dismiss
Indictment and Stay
Proceedings on Grounds of
Substantial Failure to
Comply with Law on the Selection of
Grand and Petit jurors...ssecesees eAb8
Affidavit of Dr. John Lamberth.....A80
<n
afle
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United States
Court of Appeals for the Second Circuit, held
at the United States Courthouse in the City
of New York, on the PMifteenth day of May one
thousand nine hundred and eighty-six.
PRESENT:
HON: AMALYA L. KEARSE,
HON: RICHARD J. CARDAMONE,
HON: INZER B. WYATT, # =
CIRCUIT JUDGES,
UNITED STATE OF AMERICA,
Appellee,
en
WILLIAM G. LACHANCE, WILLIAM| 84-1453
F. ZIMMERLI,
JOHN SCHLAGENHAUF AND
THOMAS CICCAGLIONE,
Apyellants,
=i Ie
A petition for a rehearing having been
filed herein by Appellants William G. La
Chance, William F. Zimmerli, John
Schlagenhauf and Thomas Ciccaglione,
Upon consideration thereof, it is
Ordered that said petition be and it hereby
is DENIED.
*The Honorable Inzer B. Wyatt of the United
States District for the Southern District of
New York, sitting by designation.
Elaine B. Goldsmith
Clerk
ee
~-A3@
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT :
+
No. 1378—August Term 1984
(Argued June 27, 1985 Decided April 14, 1986)
Docket Nos. 84-1415, 84-1435, 84-1451, 84-1453
—-
UNITED STATES OF AMERICA,
Appellee,
—V.—
WILLIAM G. LACHANCE, WILLIAM F. ZIMMERLI, JOHN
SCHLAGENHAUF and THOMAS CICCAGLIONE,
Appellants.
+
Before:
KEARSE and CARDAMONE, Circuit Judges,
and WYATT,* District Judge.
+
Appeals from judgments of conviction of the United
States District Court for the District of Connecticut, T.F.
Gilroy Daly, Chief Judge, for engaging in a continuing
criminal enterprise and for substantive and conspiracy
The Honorable Inzer B. Wyatt of the United States District Court
for the Southern District of New York. sitting by designation.
Ada
offenses related to the importation, possession, and dis-
tribution of marijuana, a controlled substance.
Affirmed.
a
HOLLY B. FITZSIMMONS, Assistant United
States Attorney, Bridgeport, Connecticut
(Alan H. Nevas, United States Attorney
for the District of Connecticut, on the
brief), for Appellee.
NINA J. GINSBERG, Alexandria, Virginia
(Zwerling, Mark, Ginsberg & Lieberman,
Alexandria, Virginia, on the brief), for
Appellant LaChance.
IRA B. GRUDBERG, New Haven, Connecticut
(Alice S. Miskimin, Jacobs, Grudberg
& Belt, on the brief), for Appellant
Zimmerli.
JAMES MICHAEL MERBERG, Boston, Massa-
chusetts, for Appellant Schlagenhauf.
M. YVONNE GONZALEZ, Boston, Massachu-
setts, for Appellant Ciccaglione.
>
WYATT, District Judge:
These are separate appeals, consolidated in this court,
of four defendants—William G. LaChance, William F.
Zimmerli, John Schlagenhauf, and Thomas Ciccaglione
—named in a superseding indictment returned against
-AS-
them and many other persons by a grand jury in the
United States District Court for the District of Connecti-
cut. Appellant Schlagenhauf was named in the supersed-
ing indictment as, and is often called in other papers of
record, “John Schlaganauf,” apparently a misspelling of
his surname; for convenience, he will usually be referred
to herein as “John.” Appellant Ciccaglione will usually be
referred to, for convenience, as “Thomas.”
This prosecution had its beginnings on September 14,
1983, when the Coast Guard stopped and boarded the
sailing vessel “Tho” in Long Island Sound some two
miles from the mouth of the Connecticut River in the
District of Connecticut. Appellant LaChance was aboard
as Captain of the Tho and, after 4,300 pounds of mari-
juana was found on the ship and seized, LaChance and
the two crew members were turned over by the Coast
Guard to Drug Enforcement Administration (DEA)
agents who placed them under arrest. Marijuana is a
Schedule I controlled substance (21 U.S.C. § 812(c)
(Schedule I) (c)(10)), the distribution, possession with
intent to distribute, and importation of which is unlawful
(21 U.S.C. §§ 841(a)(1) and 952).
An indictment was returned on September 21, 1983, by
a federal grand jury at Bridgeport in the District of
Connecticut. A superseding indictment was returned by
the same federal grand jury on March 6, 1984, against the
four appellants and many other persons; there were
twenty-nine counts in the superseding indictment. The
indictment and superseding indictment were assigned to
Chief Judge Daly.
The superseding indictment covered a time period from
January 1976 to the date it was returned. The subject
~A6<-
matter was the importation into the United States of
marijuana from the Caribbean and Colombia, and its
distribution in the United States, principally in the Dis-
trict of Connecticut. There was a charge against Zimmerli
and his brother-in-law Francolini, of engaging in a con-
tinuing criminal enterprise (21 U.S.C. § 848); two charges
of conspiracy against many defendants, one to import
marijuana into the United States (21 U.S.C. § 963) and
one to possess and distribute marijuana (21 U.S.C.
§ 846); and many charges of substantive law violations
Over a seven-year period for importing marijuana (21
U.S.C. § 952) and for possessing marijuana in the United
States with intent to distribute it (21 U.S.C. § 841(a)(1)).
On September 17, 1984, appellant LaChance pleaded
guilty to the counts against him in the superseding indict-
ment (counts two, fifteen, sixteen, seventeen, and
eighteen) and his piea was then accepted by Chief Judge
Daly. In this connection, defendant LaChance was per-
mitted to reserve the right on appeal from the judgment
to review of the adverse determination of a motion by
him and other defendants to dismiss the indictment to the
extent that such motion was based on the improper
selection of grand jurors (Fed. R. Crim. P. 11(a)(2)). On
November 8, 1984, sentence was imposed on LaChance
by the district court; we are told by the government
(Brief, p. 4) that the total effective sentence was ten years’
imprisonment and a $60,000 fine. On November 15 and
27, 1984, notices of appeal were filed by LaChance. The
notice of appeal filed November 15, stated that “La-
Chance. . . hereby appeals. . . from the Court’s denial
of his ‘Verified Motion to Dismiss Indictment and Stay
Proceedings on Grounds of Substantial Failure to Com-
ply with Law in the Selection of Grand and Petit Jurors’
uA F<
... » The notice of appeal filed November 27, 1984,
described the appeal as from the order “entered in this
action on May 2, 1984 (Denial of Motion to Dismiss for
Failure to Comply with Law in Selection of Grand
Jurors).” This appeal was given Docket No.: 84-1415-in
this court.
Trial of the superseding indictment began on September
17, 1984 at Bridgeport before Chief Judge Daly and a
jury. The jury returned its verdict on October 17, 1984,
against the remaining defendants then on trial.
Appellant Zimmerli was found guilty on counts one
through fifteen and eighteen, and not guilty on count
twenty-nine. On November 30, 1984, sentence was im-
posed on Zimmerli by the district court; we are told by
the government (Brief, p. 4) that the total effective
sentence was eighteen years’ imprisonment and a
$410,000 fine. On December 6, 1984, a notice of appeal
was filed for Zimmerli. This appeal was given Docket No.
84-1435 in this court. We are told in the Brief for
appellant Zimmerli (p. 5) that on January 24, 1985, the
sentences imposed on counts two and eighteen were
vacated, “thereby reducing the 13-1/2 year consecutive
sentence by 3 years and cutting the fines imposed bv
$125,000.”
We are told in the Brief for appellant John (p. 2) that
the jury found him “guilty on all counts.” The record on
appeal does not seem to include any transcript of the
return of the jury verdict, nor does the Defendants’ Joint
Appendix. We are told in the Brief for appellant John
(p. 2) that he was sentenced, among other counts, on
count “twenty-one”; we are puzzled because in the su-
perseding indictment shown in the record on appeal (BV
-AB-
1, document 21; “BV” references are to the two brown
volumes in the record on appeal) and in Defendants’
Joint Appendix (A177; “A” references are to pages of the
Defendants’ Joint Appendix), count “twenty-one” does
not charge Schlagenhauf. There is a possible explanation
for the apparent mistake. John was charged in count
twenty-two of the superseding indictment, and the jury
found him “guilty on all counts” (Brief, p. 2). According
to the judgment of conviction (SA 1; “SA” references are
to pages of John’s Supplemental Appendix”), John was
not sentenced on count twenty-two. Therefore, the sen-
tence on count twenty-one could have been intended to be
on count twenty-two. In any event, we assume that the
sentence on count twenty-one does not affect the time to
be served in prison because it was made to run “concur-
rently to Counts Eighteen and Twenty-Three” (SA 1).
On November 29, 1984, sentence was imposed on John
by the district court; we are told by the government
(Brief, p. 4) that the total effective sentence was eight
years’ imprisonment. On December 12, 1984, a notice of
appeal was filed for John and for Craig Randall, another
defendant in the same superseding indictment and in the
same trial. This appeal was given Docket No. 84-1451 in
this court. On April 11, 1985, an order of this court was
filed dismissing the appeal of Craig Randall on his con-
sent.
Appellant Thomas was found guilty on count twenty-
one and not guilty on count eighteen. On November 28,
1984, sentence was imposed on Thomas by the district
court; we are told by the government (Brief, p. 5) that the
sentence was two years’ imprisonment and a $15,000 fine.
On December 10, 1984, a notice of appeal was filed for
-A9-
Thomas. This appeal was ziven Docket No. 84-1453 in
this court.
We are told by the government (Brief, p. 5) that the
notices of appeal of the four appellants were all “timely
filed.”
We affirm the severai judgments from which these
appeals were taken.
A. The Appeal of William G. LaChance
On September 17, 1984, LaChance pleaded guilty to all
counts in which he was charged. Chief Judge Daly ac-
cepted his plea. LaChance had properly reserved the right
to review the denial of his motion to dismiss the indict-
ment to the extent that such motion was based on the
improper selection of grand jurors (Fed. R. Crim. P.
11(a)(2)).
As noted earlier, LaChance filed two notices of appeal.
One notice states, and the other indicates, that the appeal
is from the district court’s order denying his motion to
dismiss the indictment for improper selection of jurors.
These notices of appeal raise a question not mentioned
by the government, but which should be addressed. By
Stating or indicating in the notices of appeal thai his
appeal is from the district court’s order of May 2 denying
his motion, LaChance failed to comply technically with
Fed. R. Crim. P. 11(a)(2). Rule 11(a)(2) allows a defen-
dant who has entered “a conditional plea of guilty” to
reserve the right to review of an “adverse determination
of any specified pretrial motion” on “appeal from the
judgment” (emphasis supplied). Therefore, rather than
appealing from the May 2 order, LaChance should have
stated that his appeal was from the judgment of convic-
-Al0-
tion entered against him November 19, 1984. Neverthe-
less, in light of Sanabria v. United States, 437 U.S. 54
(1978), we conclude that LaChance’s appeal is properly
before us. In discussing the effect of mistakes in a notice
of appeal, the Sanabria Court stated: “A mistake in
designating the judgment appealed from is not always
fatal, so long as the intent to appeal from a specific ruling
can fairly be inferred by probing the notice and the other
party was not misled or prejudiced.” Jd. at 67 n.21 (citing
Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53,
56 (2d Cir.) (per curiam), cert. denied, 429 U.S. 862
(1976)).
Under his reserved right to review of an adverse deter-
mination of a pretrial motion, appellant LaChance makes
a single argument for reversal of his conviction: that the
trial judge was in error in denying, without an evidentiary
hearing, his pretrial motion to dismiss the indictment to
the extent that such motion was based on the improper
selection of grand jurors. This motion had alleged a
“substantial and statistically significant waderrepresenta- ,
tion” of blacks and women selected as grand and petit
jurors, and women selected as grand jury forepersons, in
violation of the “fair cross section requirement” of the
Jury Selection and Service Act of 1968 (28 U.S.C. § 1861
and following; the “Act”) and of the sixth amendment.
The motion had also alleged violations of the Act “which
affect the random nature and objectivity of the selection
process.”
On February 2, 1984, LaChance and other then co-
defendants filed the “Verified Motion to Dismiss Indict-
ment and Stay Proceedings on Grounds of Substantial
-All-
Failure to Comply with Law in the Selection of Grand
and Petit Jurors” (A71), described above. This motion
also sought an evidentiary hearing. A supporting affidavit
(A78) by Dr. John Lamberth, a statistics expert, accom-
panied the motion.
On April 27, LaChance and others filed an “Amended
Verified Motion” to dismiss the indictment, etc., to
correct an error containec in the original motion of
February 2.
On May 2, 1984, Judge Daly denied the “Amended
Verified Motion” of LaChance for “lack of a sufficient
showing” and without an evidentiary hearing, except that
he heard argument on the grand jury foreperson issue and
reserved decision on that (A136). It is this ruling, to the
extent that it denied the motion to dismiss the indictment
for improper selection of grand jurors, which LaChance
asserts was error, requiring reversal of his conviction.
By endorsed order, filed July 10, 1984, Judge Daly
denied the motion of LaChance as to the grand jury
foreperson issue (A141). This was on the basis of the then
recent Supreme Court decision in Hobby v. United
States, 104 S. Ct. 3093 (1984), settling the issue. In the
same order, Judge Daly described his May 2 ruling as
follows (A141):
[T]he Court ruled that, applying the statistical anal-
ysis used by the Second Circuit in United Srates v.
Jenkins, 496 F.2d 57, 65-66 (1974), cert. denied, 420
U.S. 925 (1975), the defendants had failed to make
an adequate showing on their claims of discrimina-
tion in the overall selection of grand and petit jurors.
The contentions of LaChance as to impropriety in the
selection of petit juries and of grand jury forepersons
-Al2-
ultimately were abandoned, in part because the right to
review of an adverse determination of these issues was not
reserved at the time LaChance entered his guilty plea, in
part (it seems fair to assume) because the conviction of
LaChance was not by a petit jury, and in part because the
Hobby decision had settled the grand jury foreperson
issue. In consequence, these contentions are not now
before us, and will not be referred to hereafter.
2
We take note of jury selection procedures as prescribed
by the Act and by the District’s plan thereunder, so as to
place in context the claims of LaChance of underrepre-
sentation of women and blacks as grand jurors.
The District of Connecticut’s Plan for Random Selec-
tion of Grand Jurors Pursuant to Jury Selection and
Service Act of 1968 (1968 as amended) (“Plan”), was
adopted by the judges of the District of Connecticut and
approved by the Judicial Council of this Circuit, as
required by Section 1863(a) of the Act. Although the Plan
was not introduced below and is not part of the Record
on Appeal, it is a proper subject for judicial notice.
For the purpose of jury selection, the District of Con-
necticut is divided into three divisions: the Hartford
Division, which draws jurors from the counties of Hart-
ford, Litchfield, Windham, and Tolland; the New Haven
Division, which draws jurors from the counties of New
Haven, New London, and Middlesex; and the Bridgeport
Division, which draws jurors from Fairfield County. Plan
at 2; see 28 U.S.C. §§ 1863(b)(3), 1869(e).
Jurors in the Bridgeport Division are drawn from the
voter registration lists of Fairfield County. See Plan at 3;
see also 28 U.S.C. § 1863(b)(2).
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After obtaining the voter registration list, the source
list, the first step in the jury selection process is to form
the “master wheel.” The master wheel is composed of the
names of persons selected at random from the source list;
these constitute one percent of the source list. 28 U.S.C.
§ 1863(b)(4); Plan at 6. The master wheel is emptied and
refilled once every four years. 28 U.S.C. § 1863(b)(4):
Plan art. X. The data available to LaChance included the
master wheels formed in 1977 and 1981 only. Dr. Lam-
berth’s affidavit accompanying the motion states that
“lalccording to information supplied by [Mr. Kevin F.
Rowe, then Chief Deputy Clerk in charge of jury mat-
ters], all data prior to the 1977 wheel has been destroyed”
(A79). See 28 U.S.C. § 1868 (permitting destruction after
four years).
Whenever it is anticipated that jurors will be needed for
a pool for service on grand and petit juries, names are
drawn at random from the master wheel. 28 U.S.C.
§ 1864(a); Plan at 6. Each person whose name is so drawn
is sent a “juror qualification form,” sometimes called a
“questionnaire.” 28 U.S.C. § 1864(a); Plan at 6-7. Ac-
cording to LaChance’s Brief (p. 8), those persons who
receive and return a questionnaire constitute the “venire.”
Neither the Act nor the Plan defines “venire,” but, for
convenience, we shall: use the word as defined by La-
Chance.
The questionnaire requires the prospective juror to
answer enumerated questions regarding qualifications for
jury service. He or she must state, among other things,
whether an exemption or excusal from juror service is
claimed. Qualifications (Art VII), exemptions (Art. VIII),
and excuses (Art. IX) are set forth in the Plan and in the
questionnaire. When the questionnaire is returned, a
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specified district judge “shall determine solely on the
basis of information furnished on [the questionnaire] and
other competent evidence whether a person is unqualified
for, or exempt, or to be excused from jury service.” Plan
at 3.
Those persons who receive and return a questionnaire
and who are not exempted, excused or otherwise disquali-
fied from jury service constitute the “qualified wheel.” 28
U.S.C. § 1866(a); Plan at 8.
The Plan provides that from the qualified wheel shall
be separately drawn the names of persons to be sum-
moned for service on grand juries and on petit juries.
Separate lists are prepared of those summoned for service
on grand juries and on petit juries.
We are here concerned solely with the procedure for
selecting a grand jury in the Bridgeport Division. The
Plan (art. XV) provides in relevant part as follows:
Grand jurors shall be selected, drawn, summoned
and impaneled on a “divisional” basis at such time as
the public interest requires. The names of all grand
jurors summoned for service at each seat of Court
will be placed in a Special Jury Wheel from which
twenty-three names will be drawn by lot for service
on the grand jury panel. Each grand jury shall serve
for a period of eighteen months at each seat of Court
unless earlier discharged by the Court.
The grand jury which returned the indictment and
superseding indictment against LaChance and the other
appellants was selected under this procedure, beginning
with the master wheel formed in 1981. This means that
the names of a pool of grand jurors were drawn at
-A15-
random from the qualified wheel (formed from the 1981
master wheel), and those persons were summoned to
appear at Bridgeport at some time earlier than September
21, 1983, when the first indictment was returned. The
names of the grand jurors were put in a Special Jury
Wheel from which were drawn “twenty-three names. . .
for service on the grand jury panel.” We are not informed
by the government or in any of the statistics of LaChance
how many names were in the Special Jury Wheel from
which the twenty-three members of the LaChance grand
jury were drawn. We do know that grand juries normally
serve for eighteen months and that there are no peremp-
tory challenges. In consequence, it would seem to us that
fewer grand jurors than petit jurors would be needed
from which twenty-three names are to be drawn.
Master wheels and qualified wheels for selecting grand
and petit juries were formed by the Bridgeport Division in
1977 and in 1981 (Plan art. X, as amended; A79). It is
undisputed that the grand jury which returned the
superseding indictment against LaChance and the other
appellants was derived from the master wheel formed in
1981.
3(a)
The argument to this court for LaChance is that the
District Court erred in denying his motion to dismiss the
superseding indictment without affording him the oppor-
tunity to present evidence at a hearing. Although the
Brief for LaChance concludes by asking simply for rever-
sal of the judgment against him, we believe that his intent
is to ask for reversal and for a remand to the District
Court for an evidentiary hearing on his claims of im-
proper selection in the Bridgeport Division of the grand
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jury derived from the 1981 master wheel, which returned
the indictment and superseding indictment against him.
3(b)
Section 1867(a) of the Act states:
In criminal cases, before the voir dire examination
begins, or within seven days after the defendants
discovered or could have discovered, by the exercise
of diligence, the grounds therefor, whichever is ear-
lier, the defendant may move to dismiss the indict-
ment or stay the proceedings against him on the
ground of substantial failure to comply with the
provisions of this title in selecting the grand or petit
jury.
Under Section 1867(d), if the defendant files a motion
pursuant to Section 1867(a) “containing a sworn state-
ment of facts which, if true, would constitute a substan-
tial failure to comply with the [Act],” then the defendant
is “entitled to present in support of such motion the
testimony of the jury commission [sic] or clerk, if avail-
able, any relevant records and papers not public or
otherwise available used by the jury commissioner or
clerk, and any other relevant evidence.”
In his motion under Section 1867(a), LaChance submit-
ted a sworn statement that there had been a “substantial
failure to comply” with the Act in two ways. First, he
stated that the “fair cross section requirement of [the Act]
and the Sixth Amendment has been breached”; second,
he stated that there had been violations of procedures
prescribed by the Act which “affect the random nature
and objectivity of the selection process.” We consider
these allegations in turn.
ta hal ce ct EA 8 ER REL Ie PO
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3(c)
The sixth amendment affords every criminal defendant
entitled to a jury trial the right to trial “by an impartial
jury.” The Supreme Court has interpreted this right to
mean, among other things, that the pool from which the
petit jury is drawn must represent a “fair-cross-section”
of the community in which the defendant is tried. Duren
v. Missouri, 439 U.S. 357, 363 (1979). The Act extends
this fair cross section requirement of the sixth amendment
to the pool from which federal grand jurors are selected:
“It is the policy of the United States that all litigants in
Federal courts entitled to trial by jury shall have the right
to grand and petit juries selected at random from a fair
cross section of the community in the district or division
wherein the court convenes.” 28 U.S.C. § 1861.
To establish a prima facie violation of the sixth amend-
ment’s fair cross section requirement, the Supreme Court
applies a three-pronged test, under which the defendant
must show:
(1) that the group alleged to be excluded is a “distinc-
tive” group in the community; (2) that the represen-
tation of this group in venires from which juries are
selected is not fair and reasonable in relation to the
number of such persons in the community; and (3)
that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
Duren, 439 U.S. at 364. This test for a prima facie case
under the sixth amendment is also applied in determining
whether a motion under the Act states “facts which, if
true, would constitute a substantial failure to comply
with” the fair cross section requirement of the Act.
United States v. Clifford, 640 F.2d 150, 154-55 (8th Cir.
1981); see Taylor v. Louisiana, 419 U.S. 522, 528-30
(1975) (“Recent federal legislation [the Act] governing
jury selection within the federal court system has a similar
thrust [to the sixth amendment’s representative cross
section requirement]”); United States v. Test, 550 F.2d
577, 584-85 (10th Cir. 1976) (en banc) (Act's fair cross
section standard is “functional equivalent of the constitu-
tional ‘reasonably representative’ standard”).
LaChance bases his claim of a fair cross section viola-
tion on the Act and on the fifth and sixth amendments.
He has spelled out no separate argument on his fifth
amendment challenge; in the district court he merely
quoted from Justice Powell’s dissenting opinion in Cas-
taneda v. Partida, 430 U.S. 482 (1977), which states that
“{t}he right to a “representative” grand jury is a federal
right that derives ... from the Fifth Amendment’s
explicit requirement of a grand jury. That right is similar
to the right—applicabie to state proceedings—to a repre-
sentative petit jury under the Sixth Amendment.” /d. at
509-10 (Powell, J., dissenting). We will not, therefore,
distinguish between the fifth amendment claim and that
based on the sixth amendment. Further, because” the -~
Duren test governs fair cross section challenges under
both the Act and the sixth amendment, our discussion of
the statutory challenge also disposes of his constitutional
claim.
We now consider the Duren test as applied to La-
Chance’s statement that blacks and women are under-
represented on grand juries in the Bridgeport Division.
3(c)(1)
Appellant LaChance properly stated in his motion
(A74) that both blacks and women constitute distinctive
OMe BEST AVAILA
3
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groups in the community. See Tavior, 419 U.S. at $31
(women); United States v. Jenkins, 496 F.2d 57, 6§ (2d
Cir. 1974) (blacks), cert. denied, 420 U.S. 925 (1975).
Therefore, the first prong of the Duren test is satisfied.
3(c)(ii)
LaChance attempted to satisfy the second prong of the
Duren test through a statistical presentation in his
amended motion, which we show in the following chart:
Blacks
(6.98% Black Voting Age Population
in District of Connecticut
According to 1980 Census)
Number of
Standard
Deviations Probability
Comparative From Expected of Occurring
Disparity Number by Chance
1977 and
1981 Venires
(COMBINED)
(3.52% Black) 49.57% 8.46 less than two
in 1,000,000
1977 and
1981 Qualified
Wheels
(COMBINED)
(4.83% Black) 30.8% 3.69 less than four
in 10,000
atte is vi ee ee =
BEST AVAILA
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Females
(53.17% Female Voting Age Population
in District of Connecticut
According to 1980 Census)
1977 and
1981 Qualified
Wheels
(COMBINED) 8.01% 3.77 less than two
in 10,000
The District Court denied LaChance’s motion without
affording him the opportunity to present evidence at a
hearing because the court had applied to the statistics of
underrepresentation stated for LaChance the “absolute
numbers” analysis used by this court in United States v.
Jenkins, 496 F.2d 57, 66 (1974), cert. denied, 420 U.S. 925
(1975) (A141). Appellant LaChance, in effect, asks us
(Brief, p. 17) to overrule Jenkins because Castenada v.
~Partida, 430 U.S. 482, 496-97 n.17 (1977), in an equal
swproiection challenge to Texas’ grand jury selection
précess, made reference to the statistical approach used in
the LaChance motion—the standard deviation analysis.
Jenkins involved a challenge under the Act to juror
selection in the New Haven Division of the District of
Connecticut. In appealing from their criminal convic-
tions, the appellants in Jenkins argued that the percentage
of blacks in the “New Haven jury pool” (determined
from “questionnaires sent out”) (496 F.2d at 64)—3.3%—
was So disproportionate to the percentage of blacks in the
_ adult population—5.45%—as to constitute a substantial
violation of the Act. We rejected their contention that
whether the disparity was substantial should be deter-
mined by “the ratio of the Negro percentage of the adult
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population to the Negro percentage of those adults avail-
able for jury service under the district court's plan.” /d.
at 6S. Although we recognized that the approximate § to
3 ratio “by itself appears substantial indeed,” we were not
persuaded by that ratio, but rather held (id. at 66):
The test of fairness intended by Congress is the
more practical one of the difference in absolute
numbers rather than a difference in percentages.
Judged by this standard, a difference of one (1)
Negro in a panel of 60 jurors is not substantial.
It follows, then, that under the absolute numbers
analysis, it is, as the first step, determined how many
members of the allegedly underrepresented group would
be expected to appear on the jury panel in order to reflect
the percentage of the group in the total population
eligible for jury service.
It is next, as the second step, determined how many
members of the group would be expected to appear on the
jury panel in order to reflect the percentage of the group
in the venire or qualified wheel or both, depending on the
claim being made. A successful challenge to selection
procedures depends on whether the difference between
the numbers determined in the two steps is “substantial.”
The following chart represents the numbers determined
by applying the “absolute numbers” analysis to the 1977
and 1981 combined data presented in the LaChance
motion. (Some of the figures have been rounded off.) The
Jenkins court applied the analysis to the panel derived
from the last step in the petit jury selection process
accomplished by a random drawing—the petit jury panel
of 60. Similarly, we apply the same analysis to the panel
derived from the last step in the erand jury selection
-A22-
process accomplished by a random drawing—the grand
jury panel of 23 (see section A, part 2 of opinion).
Blacks (6.98% of eligible population)
Venires (3.52%)
Expected
From Expected Difference In
Panel Eligible From Absolute
Size Population venires Numbers
23 1.6 8 8
Qualified Wheels (4.83%)
23 1.6 1.11 .49
Females (53.17% of eligible population)
Qualified Wheels (49.91%)
23 12.23 11.48 75
The Jenkins court found that the effect of the under-
representation of blacks in the selection process there
considered, measured by the differtnce in absolute num-
bers, would be one juror (that is, a correction of the
process would add one black to a panel of 60), and that
this effect was not “substantial.” Application of the
absolute numbers analysis to the LaChance statistics
shows an effect of the claimed underrepresentation of
blacks and women in the selection process here of /ess
than the one juror effect held to be not “substantia!” in
Jenkins (“substantial” comes from “substantial failure to
comply with the provisions of this title” in Section
1867(d) of the Act). It was for this reason that Judge Daly
denied the motion below without an evidentiary hearing.
On this appeal, counsel for LaChance (Brief, pp. 17-
23) ask us to abandon and disregard Jenkins and to apply
a “standard deviation” anaivsis in determining whether
the effect of the claimed violation here was “substantial.”
The standard deviation analysis measures the statistical
significance of fluctuations from an expected number in a
random sampling. For example, if a box were filled with
1,000 slips of paper, 600 of which were marked “X” and
400 of which were marked “Y,” and someone randomly
selected 100 slips, the “expected number” of “Y” slips
selected would be 40; that is, because the ratio of “X”
slips to “Y” slips is three to two, it would be expected that
a random selection of 100 slips would yield 60 “X” slips
and 40 “Y” slips. However, a statistician would not be
surprised if the number of “Y” slips fluctuated, or “de-
viated,” from the expected vaiue of 40. See Castaneda,
430 U.S. at 496 n.17 (“Of course, in any given drawing
some fluctuation from the expected number is pre-
dicted.”). Rather, the statistician would predict a fluctua-
tion, and that predicted fluctuation from the expected
number is the standard deviation. For jury selection
purposes, the standard deviation equals the square root
of the product of the total number in the sample times the
probability of drawing a member of the allegedly under-
represented group times the probability of drawing a
nonmember. /d. at 497 n.17. This formula yields a dif-
ferent result depending on the size of the sample. “One of
the principal reasons for using a standard deviation anal-
ysis and hypothesis testing is that it is axiomatic in
Statistical analysis that the precision and dependability of
Statistics is directly related to the size of the sample being
evaluated.” Moultrie v. Martin, 690 F.2d 1078, 1083 (4th
Cir. 1982); see generally Castaneda, 430 U.S. 482; Villa-
fane v. Manson, 504 F. Supp. 78 (D. Conn. 1980);
Finkelstein, The Application of Statistical Decision
SLI ia ELLE LLL LL EDEL
|
Theory to the Jury Discrimination Cases, 80 Harv. L.
Rev. 338 (1966).
Recalling the above sample of a box filled with “X”
and.“Y” slips, if a sampling from the box resulted in
selection of a number of “Y” slips substantially fewer
than the expected value, and hence more than a certain
number (depending on the sample size) of standard devia-
tions below the expected value, a Statistician would ques-
tion if the sampling was random. In Casteneda, the
Supreme Court stated that “[a]s a general rule for such
large samples [870], if the difference between the expected :
value and the observed number is greater than two or
three standard deviations, then the hypothesis that the
jury drawing was random would be suspect to a social
scientist.” 430 U.S. at 497 n.17. Relying on Castaneda,
LaChance argues that the second prong of the Duren tesi
(group representation in jury venires not “fair and rea-
sonable”) is satisfied by his allegations of differences
between the expected values and observed numbers of
8.46 standard deviations as to blacks on the venires, 3.69
standard deviations as to blacks on the qualified wheels,
and 3.77 standard deviations as to females on the quali-
fied wheels. The government argues (Brief, p. 18), how-
ever, that Jenkins is still controlling because Castaneda
decided an equal protection challenge, which involves a
showing of discriminatory intent. Castaneda, 430 U.S. at
494-95. Because LaChance’s statistical presentation does
not, as will be seen later, establish the degree of under-
representation on the 1981 venire and qualified wheel, we
need not decide wh- ther the standard deviation analysis
should apply to the cross section challenge here made or,
if it should, whether the number of standard deviations
alleged would satisfy the second prong of the Duren test.
-A25-
See Castaneda, 430 U.S. at 497 n.17 (disapproving dif-
ferences of 29 and 12 standard deviations between ex-
pected and observed numbers in two samples—greater
differences than claimed by LaChance here). This is
because LaChance has not stated facts as to the 198!
sources, from which the grand jury which indicted him
was derived, so as to enable us or the court below to
apply either the “absolute numbers” analysis of Jenkins
or the “standard deviation” analysis which he urges on
us. LaChance has, therefore, not made a “sufficient
showing,” as the court below properly ruled.
Before it can be determined, under the absolute num-
bers analysis, the standard deviation analysis, or any
other statistical analysis, whether the claimed underrepre-
sentation is “substantial” (28 U.S.C. § 1867(d)), two
percentages must be shown. First, the defendant “ ‘must
demonstrate the percentage of the community made up of
the group alleged to be underrepresented.’ ” United States
v. Goodlow, 597 F.2d 159, 162 (9th Cir.) (quoting Duren,
439 U.S. at 364), cert. denied, 442 U.S. 913 (1979).
Second, the defendant “must show the percentage repre-
sentation of the groups in question on iurv venires ” Jd
The statistical presentation made for LaChance has two
Striking features: First, it purports to compare statewide
population data with Fairfield County jury selection data:
and second, it combines jury selection data for 1977 and
1981, whereas the grand jury which indicted LaChance
and the other defendants was derived from the master
wheel of 1981 only.
3(c){ii)(A)
LaChance attempted to “demonstrate the percentage of
the community made up of the group alleged to be
underrepresented” by comparing the percentage of blacks
on the venires and qualitied wheels, and the percentage of
women on the qualified wheels, in the Bridgeport Divi-
sion (Fairfield County only) with district wide (all of
Connecticut) black and female voting-age populations.
The government argues (Brief, pp. 12-13) that because
“{t}here is no basis for concluding that Fairfield County
{from which juries in the Bridgeport Division are drawn}
has the same percentage of blacks in its voling-age popu-
lation as Connecticut as a whole. . . . [t]he entire basis
for comparision is suspect.” (This argument applies
equally to LaChance’s allegations with regard to the
underrepresentation of women.) In response to this argu-
ment, counsel for LaChance asserts that the district
court’s denial of a hearing precluded defendants “from
explaining their use of district-wide voter data” (Reply
Brief, p. 2.) Further, at oral argument, counsel for La-
Chance argued that these were the “best available statis-
tics” and that “many courts have used district-wide
Statistics when they are measuring a smaller division.”
Our research shows, however, that the voting-age popula-
tions of blacks and females, as stated by LaChance in his
motion below (BV II, LaChance Document No. 10),
mistakenly identified by counsel for LaChance (in the
motion and also Brief, pp. 8, 9, 10, and Reply Brief, p. 2)
as “in the District of Connecticut” or “district-wide,” are
in fact the voting-age populations for Fairfield County
only. According to | United States. Bureau of Census,
United States Department of Commerce, 1980 Census of
Population 8-200 (1982), the black voting-age population
of Fairfield County (blacks age 18 and over: 41,176) is
6.98% of the total voling-age population of Fairfield
County (all persons age 18 and over: 589,669). The
female voting-age population of Fairfield County
Bin
(females age 18 and over: 313,520) is §3.168% of the total
voting-age population of Fairfield County. By contrast,
the statewide black and female voting-age population
percentages are, respectively, 5.97% and 52.8%. See id. at
8-24 to 8-27. Thus, the voting-age population percentages
stated by LaChance of blacks (6.98%) and females
(53.17%) were in fact percentages of Fairfield County's
voting-age population and, therefore, served as proper
bases of comparison for the percentages of blacks on the
Bridgeport Division venires and qualified wheels and of
- females on the Bridgeport Division qualified wheels.
We conclude, therefore, that LaChance has adequately
stated “the percentage of the community made up of the
group[s] alleged to be underrepresented [blacks and
women].” Duren, 439 U.S. at 364, Goodlow, 597 F.2d at
162.
3(c)(11)(B)
The percentage of the community represented by blacks
and womens j@ Be.compared, ynder the absolute num-
bers analysis als@‘e@nder the standard deviation analysis,
with the percentage of blacks and women in the jury pool
(venire, qualified wheel) from which the 23 member
grand jury was derived. The statistical presentation made
for LaChance did not contain any data from which this
percentage could be calculated because it combined jury
selection data for the 1977 and 1981 venires, and com-
bined data from 1977 and 1981 qualified wheels, whereas
the grand ju:y which indicted LaChance was derived
from the venire and qualified wheel of 1981 only.
In an effort to establish the degree of underrepresenta-
tion of biacks and women on grand juries in the Bridge-
BEST AVAILABLE COPY
-A28-
port Division, LaChance examined data from the 1977
and 1981 venires and qualified wheels. Rather than pre-
senting the data from each year separately, however,
LaChance combined the 1977 and 1981 data. He thereby
prevented the court below, and now prevents us, from
determining the degree of underrepresentation on the
1981 venire and qualified whee!. Thus, LaChance has
failed to allege “facts which, if true, would constitute a
substantial failure to compiy” with the Act’s fair cross
section requirement.
LaChance was indicted by a grand jury derived from
the 1981 master wheel (Brief for LaChance, p. 7) which
was emptied and refilled in 1981 pursuant to the Act and
the Plan. (See section A, part 2 of this opinion.) Section
1861 of the Act entitled LaChance to a grand jury
“selected . . . . from a fair cross section of the commu-
nity.” Under the Act, “[djefendants, of course, may
challenge only improprieties affecting the particular
grand jury which indicted them.” United States v. Bear-
den, 659 F.2d 590, 601 (Sth Cir. 1981) (emphasis in
original), cert. denied, 456 U.S. 936 (1982). Therefore,
although the 1977 data may be relevant in determining
whether underrepresentation on the 1981 sources is due to
systematic exclusion (“that is, inherent in the particular
jury-selection process utilized,” Duren, 439 U.S. at 366),
LaChance would not be entitled to any relief based solely
on claimed underrepresentations in the 1977 venire and
qualified wheel.
By combining the 1977 data with the 1981 data, La-
Chance made it impossible for the court below, and now
for us, to determine the degree of underrepresentation, if
any, in the 1981 sources. For example, it is possible that
the underrepresentation was very high on the 1977 venire
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and master wheel but nonexistent or very low on the 198]
venire and master wheel. These circumstances make
meaningless the number of standard deviations claimed
by LaChance for the 1977 and 1981 data taken together.
Combining the data prevents discovery of any absence of,
or insubstantial nature of, any underrepresentation in the
1981 venire and qualified wheel. LaChance argues that,
had he been afforded an evidentiary hearing, “Dr. Lam-
berth could have testified that combining the 1977 and
1981 data allows for a larger sample which in the disci-
pline is considered more stable and produces more reli-
able results” (Reply Brief, p. 2). This argument is without
merit. The burden was on LaChance to state “facts
which, if true, would constitute a substantial failure to
comply” with the Act’s fair cross section requirement.
LaChance was entitled to an evidentiary hearing only if
his motion made out a prima facie case. He was not
entitled to a hearing to explain why he did not make out a
prima facie case.
This is not a case such as Duren, in which the Supreme
Court accepted use of six vear old census data in the
absence of “evidence . . . in the record to suggest that
[the old census data] significantly distorted” the statistical
presentation, 439 U.S. at 365. Here, through extensive
discovery (see Brief for LaChance, pp. 6-7), appellants
had available to them the data to make a meaningful
Statistical presentation, but did not do so. We rejected the
use of overbroad statistics in United States v. Newman,
549 F.2d 240 (2d Cir. 1977). That case involved a claim
that the government used its peremptory challenges to
exclude blacks from petit juries in the New Haven Divi-
sion of the District of Connecticut. In examining the
claim, the district court had combined data regarding
petit juries in the New Haven and Hartford Divisions. We
stated (id. at 244):
It is only the New Haven Division and its procedures
for selecting the jury in this case which are relevant.
By merging the New Haven Division statistics with
those of the Hartford Division, the district court has
. greatly distorted and arbitrarily altered the
Statistics of the New Haven Division which are, as
thus changed, made useless.
Similarly, the merging by LaChance of the 1977 and 1981
data may have “greatly distorted and arbitrarily altered”
the 1981 data.
Even if LaChance’s statements of fact regarding the
1977 and 1981 combined data are true, those facts would
not “constitute a substantial failure to comply” with the
Act’s fair cross section requirement as to the 1981 venire
and qualified wheel, from which the indicting grand jury
was derived. LaChance was, therefore, not entitled to an
evidentiary hearing on his fair cross section challenge,
and the denial of his motion below, without a hearing,
must be sustained.
3(c)(iii)
Because we have concluded that LaChance failed to
satisfy the second prong of the Duren test, we need not
consider whether he stated facts sufficient to satisfy the
further aspect of that test, that the claimed underrepre-
sentation was due to “systematic exclusion.”
3(d)
LaChance also stated that in his motion what were
claimed to be violations of the Act “which affect the
: ee
random nature and objectivity of the selection process”
(A75). Such violations were alleged to have included: (1)
“Erroneous permanent disqualifications, exemptions, ex-
cusals or exclusions, based upon insufficient medical
documentation,” “previous jury duty,” “occupation,”
“child care,” and “student status”; (2) “Usurpation of
judicial functions by jury clerks”; (3) “Temporary or
permanent disqualifications, exemptions, excusals, or ex-
clusions, exceeding one per centum of the number of
persons who return executed juror qualification forms
during the period specified in the Plan between two
consecutive filling[s] of the master jury wheel”; and (4)
“Erroneous inclusion of permanently excused and ex-
empted jurors in the qualified wheel.” Finally, it was
alleged that “foJut of 2040 disqualified juror question-
naires examined, 232 were disqualified inaccurately, con-
stituting an error rate of 11.37%” (A76).
These claimed violations of the Act’s requirement of
selection “at random” are insufficient for the same rea-
son as is the LaChance statistical presentation on the
claimed underrepresentation of women and blacks. It was
impossible for the court below, and now is impossible for
us, to determine the extent of the “at random” violations
in the selection of grand jurors derived from the master
wheel formed in 1981. For example, we are not told how
many, if any, of the “[e]rroneous permanent disqualifica-
tions, exemptions, excusals or exclusions” were issued to
jurors drawn from the 1981 master wheel; we are not told
when the alleged “[u]surpation of judicial functions by
jury clerks” occurred; nor are we told how many, if anv,
of the 232 jury questionnaries “disqualified inaccurately”
had been sent to persons drawn from the 1981 master
wheel.
-A32-
The Act entitles a defendant to present evidence at a
hearing if the facts stated in the motion would, “if true,
constitute a substantial failure to comply” with the Act.
28 U.S.C. § 1867(d). Mere “technical” violations of the
procedures prescribed by the Act do not constitute “sub-
stantial failure to comply” with its provisions. United
States v. Carmichael, 685 F.2d 903, 911 (4th Cir. 1982),
cert. denied, 459 U.S. 1202 (1983); United States v.
Capone, 683 F.2d 582, 589 (ist Cir. 1982); Bearden, 659
F.2d at 601. Whether a violation is “substantial” or
merely “technical” depends upon the nature and extent of
its effect on the wheels and venire from which a defen-
dant’s grand jury was derived. Because the nature and
extent of the claimed violations as to the 1981 wheels and
venire cannot be determined from the LaChance motion,
there was no statement of “facts, which, if true, would
constitute a substantial failure to comply” with the Act’s
requirement of selection “at random.” In this aspect also,
Chief Judge Daly properly denied LaChance’s moticn
without an evidentiary hearing, and his ruling must be
Sustained.
B. The Appeal of William F. Zimmerli
Appellant Zimmerli was found guilty on October 17,
1984, on all counts in which he was named, save for
count twenty-nine. He was found guilty on count one,
engaging in a continuing criminal enterprise (21 U.S.C.
§ 848); on count two, conspiracy to import marijuana
into the United States (21 U.S.C. § 963); on counts three,
five, seven, nine, eleven, thirteen, and fifteen, importa-
tion of marijuana into the customs territory of the United
States and into the District of Connecticut (21 U.S.C.
§ 952); on counts four, six, eight, ten, twelve, fourteen,
————
RIMM BE BORN A eA
/
and seventeen, possession of marijuana with intent to
' distribute (21 U.S.C. § 841(a)(1)); and on count eighteen,
conspiracy tO possess with intent to distribute, and to
distribute, marijuana (2! U.S.C. § 846). Zimmerli was
found not guilty on count twenty-nine, bribery of a
witness (18 U.S.C. § 201(h)).
Counsel for appellant Zimmerli make four arguments
for reversal of his conviction. The first and second
arguments are based on a search for, and seizure of, items
under a search warrant for the “family dwelling” of
Zimmerli at Glastonbury, Connecticut on September 15,
1983. While not expressly stated, presumably the claim is
that the search and seizure violated the constitutional
rights of Zimmerli, that the motion to suppress seized
evidence should have been granied, and that the convic-
tion should be reversed for admission of any of this
evidence. The first and second arguments are presented in
the brief to this Court for Zimmerli. The third argument
is based on the denial by the trial judge of a pretrial
motion for Zimmerli to dismiss the superseding indict-
ment because the grand jury which returned it had been
selected in violation of the Constitution and of the Jury
Selection Act in that women and blacks were not propor-
tionately represented. This argument is not discussed in
the brief for Zimmerli, who relies (Brief, p. 49) in this
respect on the brief for appellant LaChance. The fourth
argument is based on the denial by the trial judge of a
motion by Zimmerli, after the completion of the jury voir
dire at the beginning of the trial, to strike the petit jury
venire and for other relief. The ground for the motion
was that the petit jury venire did not contain a fair cross
section of young adults. The fourth argument is not
BEST AVAILAE
discussed in the brief for Zimmerli, who relies (Brief, p.
49) in this respect on the brief for appellant John.
1(a)
On Friday, September 14, 1983, 308 bales (4,300
pounds) of marijuana were seized on the sailing vessel
“Tho” in Long Island Sound; the three men on board—
LaChance, Stanko, and Busbv—were turned over by the
Coast Guard to Drug Enforcement Administration
(DEA) agents, who placed them under arrest. Busby was
interrogated and gave information to DEA, which since
1979 had been receiving information considered reliable
linking Zimmerli to imports of large amounts of mari-
juana in sailing vessels from the Caribbean to New
England, mostly to Connecticut. Further information
implicating Zimmerli was obtained by DEA on September
14 and 15. Zimmerli had his home in Glastonbury, Con-
necticut, a town on the Connecticut River, a few miles
south of Hartford.
On Saturday, September 15, 1983, shortly before 5:03
p.m., DEA applied to Magistrate Thomas P. Smith in the
District of Connecticut for a search warrant. An affidavit
of Michael W. Meyrick, a DEA agent, was submitted in
support of the application. The search was asked for the
“single family dwelling” of Zimmerli at 37 Ledgewood
Drive, Glastonbury. The affidavit recited the seizure
aboard the “Tho” (of German registry) of 308 bales of
marijuana the day before (the 4.300 pounds); that Tho
was boarded about 2 miles from the mouth of the
Connecticut River; that at the time of boarding “charts
on board were opened to navigation charts for tha
river”; that Busby, a member of the Tho crew, had tolf
Meyrick that Tho had picked up the contraband mar
\
:
acc ACT eee ee oe ee | Bernal. lib ca Mle.
otiele
ee ee ee AM fi ns
'
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juana two weeks before in Jamaica and had sailed for
Connecticut for off-loading along the Connecticut River;
that Busby was to be paid $50,000 upon delivery offload-
ing; that he was told by the other crew members to make
no statement if arrested but to call “attorney John Mark-
Flowers”; that Stanko called an attorney in Montana,
who referred him to Goldfarb, an attorney in Hartford,
and told him to advise Goldfarb of his arrest; that since
1979 the DEA had received reliable information that
Zimmerli was “a large-scale marijuana smuggler” running
“several boatloads a year”; that Zimmerli’s lawyer was
Alexander Goldfarb of Hartford; that at about 2 p.m. on
September 15 an agent had called the home of Zimmerli
and claimed to be a “friend” of LaChance, advising that
there was “trouble”; and that Joy Zimmerli, wife of
Will'am, replied that her husband had suspected trouble
anu was off in an airplane “looking” (GA 2-4; “GA”
references are to pages of the Appendix to the Govern-
ment’s Brief). The affidavit further stated that about 3
p.m. on September 15, agents “observed at least two Vans
in the driveway and approximately eight persons in the
yard” at the Zimmerli house in Glastonbury; and that
vans are used “as off-shore loading vehicles by marijuana
smugglers.”
The Magistrate issued a search warrant at 5:03 p.m. on
September 15. The warrant authorized a search of the
premises in Glastonbury and of “two vans” parked on the
premises. The property which the warrant authorized to
be searched for and seized was described as follows:
“money intended to be furnished in exchange for
controlled substances; records of dealing in con-
trolled substances; and documentary evidence of the
involvement of William and Joy Zimmerli in the
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conspiracy to smuggle approximately 4,300 pounds
of marijuana into Connecticut aboard the ‘Tho’.”
The search warrant was executed on the same day
issued, Saturday, September 15, 1983, beginning abou
6:30 p.m. (A247). Many items were seized.
A motion was filed for Zimmerli on November 7, 1983,
to suppress as evidence a// of the items seized in the
search of the home in Glastonbury. The grounds were said
(A43) to be (1) no “probable cause” shown for issuance
of the search warrant; (2) the supporting affidavit had
“reckless and/or deliberate untruths and significant omis-
sions”; (3) the warrant was “overly broad, general and
vague as to what property the agents were empowered to
search for and seize”; and (4) the “scope of the search far
exceeded the limits set. . . by the warrant... .”
On December 6, the trial judge fixed December 19,
1983 for hearing of the motion by Zimmerli to suppress
the evidence seized at his home.
On December 14, an affidavit of counsel for Zimmerli,
sworn to December 13, was filed in support of his motion
to suppress (A45-48).
On December 16, the government filed a “response to
amended motions to suppress” (A49-50). Apparently, the
government treated the December 13 affidavit of counsel
as an amendment to the Zimmerli motion to suppress.
On December 19, 1983, evidence was presented on the
motion to suppress before Chief Judge Daly; there was 4
further hearing on January 9, 1984, which completed the
presentation of evidence. A docket entry for that dat
States that decision was reserved (A4). ia
{ '
a —
On September 17, 1984, when the trial began, Chie!
Judge Daly rendered his decision on the motion to sup-
press fromm the Bench (T104-06; “T” references are to
pages of the stenographic transcript). He found that the
warrant was “supported by probable cause” (T104), cit-
ing //linois v. Gates, 462 U.S. 213 (1983). As to whether
the affidavit on which the warrant was granted was false
in any respects, Chief Judge Daly ruled that, to the extent
that there were any material Omissions or misstatements
in the affidavit, the evidence did not establish that “they
were made deliberaiely or in reckless disregard for the
truth” (T104), citing Franks v. Delaware, 438 U.S. 154
(1978). As to the description of the search items in the
warrani, the trial judge ruled that the description “was
sufficient and more specificity could not properly be
expected,” citing United States v. Balsamo, 468 F. Supp.
1363, 1391 (D. Me. 1979). As to the execution of the
warrant in seizing “non-financial items” (T106), the trial
judge upheld the seizure. As to “financial or expenditure
evidence. . . . seized pursuant to Agent Hoyt’s theory of
plain view tax violation” (T105), the trial judge deferred a
ruling pending disclosure by the government of which
documents it planned to offer (T105).
On September 19, 1984, Chief Judge Daly suppressed
as evidence “those financial items. . . seized pursuant to
the Government’s theory that they were evidence in plain
view of a tax violation” (T1153). The suppressed items
were those “listed in the government’s submission ot
yesterday’s date [September 18, 1984]” (T1154). The “sub-
mission” is a part of the record (A54). The reasoning of
Chief Judge Daly in reaching this result was set out by
him orally (T 153-54).
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR
HARD COPY AT THE TIME OF FILMING.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.
During the trial, on October 2, the government filed ;
“Motion to Reopen Hearing on Motion to Suppress an
for Clarification And/or Reconsideration of Ruling’
(A61-63). The government urged reconsideration of th —
ruling on the “plain view exception to the warrant re
quirement” and also to consider, for the period afte
discovery (during the search) of the “Zimmerlis’ tay
returns,” the theory of seizure “to document the... .
expenditures in excess of income.” The trial court did
reopen the hearing and, in the absence of the jury, took
further evidence on October 2 and 3 (11861-1931, 2075.
2194).
At the end of the hearing on October 3, the trial judge |
made his ruling. He found that the searching officers
were properly on the premises and, of course, he knew
that the cause of the application for a search warrant was
the Tho importation, which had been halted and pre-
vented the day before the issuance of the warrant. The
trial judge found that, in the search for the Tho items,
“the other items were uncovered and as to at least some)
of the specified documents under the plain view doctrine
they were properly seizable as evidence of criminal activ-|
ity” (T2193-94). He indicated that, as to two or three of |
the documents, he had “some problems” and that he
would “rule with more specificity in the morning.” We}
have not found the further ruling thus anticipated, and
we assume that those two or three documents were not
admitted into evidence.
1(b)
The argument for appellant Zimmerli seems in larg
part directed more to a motion to suppress evidence tha
to reversal of a criminal conviction. There is a genera
at rae
—) Chena
-A39-
discussion of a “prohibited general search” (e.g., Briet,
p. 13 and tollowing) and of how “the ‘plain view’
exception does not apply” (e.g., Brief, p. 40 and follow-
ing). lt would, however, be difficult for us to see why, in
view of the overwhelming evidence aside from thai seized
in the search al issue, a conviction of Zimmerli for
numerous serious drug offenses should be reversed be-
cause of a generalized claim of misconduct in the execu-
tion Of a search warrant.
Zimmerli points (Brief, p. 12) to some evidence seized
in the search which was received in evidence. These are (a)
pictures and letters establishing ownership by Zimmerli of
an expensive home in St. Barthelemy in the French West
Indies; (b) documents showing a financial interest of
Zimmerli in sailboats used in some of the drug importa-
tions; (c) tax returns of Zimmerli and his wife, and
associated records; and (d) notes of receipts from imports
of marijuana and payments to participants in the smug-
gling. The items in (b) and (d) seem clearly within the
warrant as records of dealing in controlled substances.
The items in (a) seem within the warrant because they
show associations between Zimmerli and his wife and
Others engaged in their marijuana operation; for example,
the photographs show Anne Taylor with Mrs. Zimmerli
and others (T2500; Anne Taylor was indicted and was
alleged in the indictment to have been a crew member on
sailboats used in the drug smuggling (A152)). The items in
(Cc), principally the tax returns, are not so clearly within
the warrant, but we understand from the record (T1303)
that they were found within an hour to an hour and a half
after the search began and after some $280,000 in cur-
rency had been found in the house. They seem to us,
therefore, to be evidence of a crime found by officers
-A4C-
making a search under a valid warrant: the income tax
returns showed income of the Zimmerlis for 1980 of
$14,910, for 1981 of $31,900. and for 1982 of $§1.339
(T304); to the officers, therefore, the expenditures ob.
viously made by the Zimmerlis for houses, trips, automo.
biles. sailboats, and the like, plus a sum of $280,000 in
currency found in the house, showed “expenditures
. . far in excess of [the income on their tax returns], a
pretty good indication they filed a fradulent return”
(T 305-06). The financial records would also be relevant in
showing “substantial income or resources,” part of the
definition of a “continuing criminal enterprise” (21
U.S.C. § 848(b)(2)(B)).
Before discovery of the tax returns, Supervising Agents
Hovt and DiCario required that they approve any item
seized by other agents; after discovery of the tax returns,
all items in the financial records which showed expendi-
tures by the Zimmerlis were authorized to be seized by
any agent as evidence of an offense within plain view
(7303-07). We are told by the government, however, that
“documents from this category were not offered at trial”
(Brief, p. 36).
We realize that, under Chapman v. California, 386
U.S. 18, 26 (1967), it may weil be that the burden of
proof was on the government to show that any error in
the admission of evidence seized in the search was “harm-
less” beyond a reasonable doubt, but we believe that the
government, if it had such a burden, met the burden.
l(c)
Appellant Zimmerli makes no argument here that th
warrant was not supported by a showing of probabk
en Re OO
“Mere
oom Te a
-A4l-
cause, believing that United States v. Leon, 104 S. Ct.
3405 (1984), would “preclude review” of the finding of
probable cause below (Brief, p. 18 fn. 1). We have,
however, examined the affidavit on which the warrant
issued and agree with Chiet Judge Daiy’s determination
that probable cause was there shown. We take note of the
“totality of the circumstances” and of the “traditional
deference to the probable-cause determinations of magis-
trates,” /ilinois v. Gates, 462 U.S. 213, 230, 237 (1983),
such determinations having been here upheld by Judge
Daly after considerable evidence and discussion.
1(d)
The argument for Zimmerli begins (Brief, pp. 13-18) .
with an attempt to bring the affidavit submitted for the
search warrant within Franks v. Delaware, 438 U.S. 154,
165 (1978), which in substance allows impeachment of a
warrant affidavit for “a deliberately or recklessly false
statement.” It is claimed that the “heart” of the warrant
affidavit is its statement that surveillance of the Zimmerli
premises at 3 p.m. on September 15 revealed that “eight
persons were congregated outside near two vans parked in
the driveway” (Brief, p. 14). We have reviewed the affi-
davit with some care, and, while the congregating of
people and the presence of a van or vans at Zimmerli’s
house tend to show his connection with the Tho drug
cargo, they are tar from the “heart” otf the probable
cause shown in this instance. In any event, there was an
issue of fact in the testimony covering these events, and
the testimony of two agents (T128, 145-47), if accepted,
would support the statements in the warrant affidavit.
The testimony for Zimmerli was given by Jordan and
Leonard, who testified that they were at the Zimmerli
-A42-
house on the afternoon of September 1S, that there were
fewer than eight people in the driveway, that one van was ~
there instead of two, and that the time was nearer 4:30
p.m. than 3 p.m. The differences are of no great signifi.
cance, even if the testimony of Jordan and Leonard be
accepted. But some skepticism is justified in appraising
these witnesses for Zimmerli. At the time they were
testifying, both had been indicted, along with Zimmerli:;
they, among others, were named in the two conspiracy
counts. The indictment alleged that Leonard had taken
part in the off loading of marijuana, that Jordan had
served as a crew member of sailboats bringing drugs to
Connecticut, and that Leonard had carried out of the ©
United States currency belonging to Zimmerli. That Jor-
dan and Leonard were themselves at the Zimmerli house
on September 15, tended to establish probable cause,
whatever the number of oihers there may or may not have ~
been. We are satisfied on the record that there is no
evidence of any deliberate or reckless disregard of the ©
truth in the warrant affidavit.
1(e)
Appellant Zimmerli argues that the description of the
items to be searched for is “unconstitutionally vague”
(Brief, p. 28) and “overbroad and vague” (Brief. p. 27).
We are unable to accept the argument. Under the back-
ground circumstances of the issuance of the search war-
rant, we are satisfied that the description of the property
objects of the search “was sufficiently specific to permit
the rational exercise of judgment [by the executing offi-
cers] in selecting what items to seize.” United States vy.
Vargas, 621 F.2d 54, 56 (2d Cir.), cert. denied, 449 U.S.
854 (1980).
a
-A43-
1(f)
A last argument, much stressed by counsel for Zim-
merli, is that the execution of the warrant, the search, was
a “prohibited general search” (Brief, p. 34; also pp. 13,
19-22, 25-26, 34-49). In making this argument, reliance is
on cases such as Coolidge v. New Hampshire, 403 U.S.
443 (1971), which disapprove “a general exploratory
search” and “general, exploratory rummaging in a per-
son’s belongings” (403 U.S. at 466, 467). Appellant
Zimmerli, in making his point, considerably exaggerates; _
for example, “the searching agents abandoned any pre-
tense of restraint; constitutional requirements . . . were
flagrantly disregarded . . . ” (Brief, p. 34), “wholesale
rummaging at will” (Brief, p. 36), “a massive general
search” (Brief, p. 36), “{i]ndiscriminately seizing virtually
every document in the house” (Brief, p. 38), “agents. . .
conducted a dragnet search for many hours” (Brief, p.
20), “Thousands of documents . . . were seized... .”
(Brief, p. 21).
After a review of the record, we feel that a more
balanced view is required. The officers who made the
search did have a valid warrant authorizing them to do
so. The premises to be searched—the house—were
“large” (T1868). The condition of the house was
“messy”; there were papers, for example, “piled on top
of every flat surface including the floor” (T1870). The
time period to be covered was indefinite but lengthy.
While the search was occasioned by seizure of the Tho on
the day before, one of the objects of the search, “records
of dealing in controlled substances,” would go back a
number of years because DEA had information going
back to 1979 of marijuana smuggling by Zimmerli. The
officers were obliged to look at a “tremendous quantity
-A44-
of evidence” (T1870). This required ultimately 10 to 1§
people from DEA and other agencies (T1869). Money
(currency) in large amounts was found “early on” in the
search (T1873); the money was in total some $280,000,
but it was apparently found in several different places (See
items listed in government brief at p. 26): the evidence
. was that “seven people were involved in counting” the
money (T1886) and the count “took hours” (T1886).
The search was a disciplined one; before the tax returns
were found, any seizure required the “specific approval”
of Supervising Agents DiCarlo and Hoyt (T1258), who
tried to be “as selective as possible” (T291). After the tax
returns were found, after consulting with an Internal
Revenue Agent, Hoyt instructed the agents to take finan.
cial records in plain view which indicated expenditures by
the Zimmerlis since this had “a new significance” in view
of the “indication they filed a fraudulent return” (T306),
The agents had a reasonable explanation for the
seizures made. They took photographs, not a high per-
centage of those found, but mostly of “sailboats to
attempt to identify them” because “Mr. Zimmerli had
utilized [them] to smuggle on” (T1872) and of “individ-
uals” to identify them as “an off-loader, a boat person, aj
marijuana salesperson, that sort of thing” (T1872), in.
cluding unnamed co-conspirators Cornelio and Swider,
whom the agent DiCarlo recognized (T1872). The agents
seized no more than ten to fifteen per cent of the total
number of photographs (T1871).
A seizure, made during the search, of which Zimmerli
complains (Brief, p. 12), was of a notebook, received as
Government Exhibit 20, which is said to be “damaging”
because it shows receipts from marijuana importations by
-A45-
Zimmerli of “in excess of $2,000,000 by early August
1981, from the June importations, with coded indications
of payment to various of the participants.” It is easy to
see that this evidence is “damaging,” but it falls squarely
within the search warrant description of “records of
dealing in controlled substances.”
Finally, we are impressed by the testimony of Supervis-
ing Agent DiCarlo that the items seized during the Sep-
tember 15 search amounted to “somewhere between” one
tO two per cent of the material examined.
C. The Appeal of John Schlagenhauf
Appellant John was found guilty by the jury on all
counts in which he was named: conspiracy to distribuie
and to possess with intent to distribute marijuana (21
U.S.C. § 846) (count eighteen) and several substantive
offenses of possession of marijuana with intent to distrib-
ute (21 U.S.C. § 841(a)(1)).
Counsel for appellant John make two arguments for
reversal of his conviction.
(a)
The first argument is that the trial judge was in error in
denying a motion to strike the then petit jury panel and to
summon a new panel, or, alternatively, to call in the
eighteen “veniremen [who were part of the panel ori-
ginally summoned but] who failed to appear”; the ground
of the motion was “that there was a substantial under-
representation (thus in original] of young adults on the
panel” (Brief for John, p. 8).
-A46-
not ask for any “evidentiary hearings or findings”; nor
were such hearings or findings askec for by counsel who
did argue the motion (T135-42, 149-50).
It is not here claimed that there was any violation of
the Act in respect of juror age (28 U.S.C. § 1861 and
following), nor could there have been any such claim
since the mouon below did not comply with the Act. It
was not timely in that it was not made “before the voir
dire examination begins” (28 U.S.C. § 1867(d)) and in
that it did not contain 2 “sworn statement of facts” as
also required by the Act (28 U.S.C. § 1867(d)). For these
reasons, the motion was properly denied below (T150). °
When the motion was presented below, the movant
appears to have disclaimed any contention that there was
any deliberate exclusion of younger jurors (T141), or that
there was any violation of the Act or any violation of
federal constitutional rights in picking the array from
which the jury was chosen (T146, 149). The motion below
appears to have been based on “the inherent power and
discretion” of the trial Court “to govern proceedings
before it” (T141). This seems to be the argument for John
here; the relief asked in this respect is said (Brief for
John, p. 11) to have-been “well within the supervisory
power of the [trial] court.”
In judging whether there was an abuse of discretion in
this instance, it must be noted that the Courts of Appeals
have uniformly held that age groups are not “distinctive”
_ enough for sixth amendment (fair cross section) purposes,
as “distinctive” was used in Duren v. Missouri, 439 U.S.
357, 364 (1979). Counsel for appellant John were able to
~ cite (Brief, p. 9-10) a First Circuit decision to the con-
trary: Barber v. Ponte, 772 F.2d 982 (April 4, 1985). Since
-A47-
l(b)
The selection of the jury began on Monday, September
17, 1984. The trial transcript (1116-17) shows that “jury
voir dire” was completed that day. The trial judge then
turned to “challenges for cause” (T117). At this point,
counsel for appellant Zimmerli raised an objection orally
at the sidebar that the jury panel was not representative
because there were “more older people than younger
people” (T117). The judge declined to hear the objection
at that time but said he would hear it later.
On September 19, 1984, counsel for Zimmerli filed a
written motion “to strike jury panel and to summon new
veniremen”™ or, alternatively, to summon eighteen of the
Original panel who had not responded to a summons. The
ground for the motion was that the jury panel was
“grossly disproportionate in its drastic underrepresenta-
tion of younger adults”; the motion was based on the
theory that the petit jury panel was not a fair cross
section of the community and thus not an “impartial
jury” as required by the sixth amendment. This motion
was heard by the trial judge on September 19, 1984
(T13S-50). Counsel for other defendants, including appel-
lant John (T1146), joined in the motion. Chief Judge Daly
denied the motions from the Bench on the ground that
they were not timely and were not supported by a “sworn
Statement under oath” (T150), as required by 28 U.S.C.
§ 1867(d).
It is difficult to determine the basis for the argument of
appellant John on this point. Apparently, it is based on
the denial of the motion below “without an evidentiary’
hearing or findings” (Brief, p. 11). But counsel fo
appellant John did not argue the motion below, and dic
\
-A48-
the argument before us. however, the First Circuit en
banc has vacated the cited decision and now holds that
age groups are not “distinctive” enough for sixth amend.
ment purposes. Barber v. Ponte, 772 F.2d at 996 (Septem.
ber 18, 1985). This court may not have squarely decided —
the point, but it has “certainly indicated sympathy for the
majority view.” Brown vy. Harris, 666 F.2d 782, 784 (2d
Cir. 1981), cert. denied, 456 U.S. 948 (1982).
We are unable under the circumstances here to find any
abuse of discretion by the trial judge in denying the
motions to strike the petit jury panel.
2(a)
The second argument for John is that the government
prevented him “from obtaining exculpatory evidence”
(Brief, p. 12), thus violating his constitutional right to due
process of law, and that the conduct of a government
agent in this respect was so “outrageous” that “the
indictment should have been dismissed” (Brief, p. 15).
The word “outrageous” appears to have been taken by
John from a Supreme Court opinion speculating that
“some day” it might be presented with a situation where’
the conduct of government agents was “so outrageous” as
to bar the government from judicial processes to obtain a
conviction, but that the situation then before the Court
was “distinctly not of that breed.” United States v.
Russell, 411 U.S. 423, 431-32 (1973).
This argument for John is that two government wit- |
nesses against him, Jacqueline Noweil and Paul Smart,
agreed in a plea bargain with the government to surrender
to the government all their profits from the illegal mari
juana business; to plead guilt\to some offenses; and
testify for the government; and that they did not surren
-A49-
der all their illegal profits but instead buried substantial
amounts of currency under the porch of a house at Eagle
Lake, Maine, owned by Blanche Vaillancourt. Nowell was
the wife of Robert Vaillancourt, who also pleaded guilty
tO a Marijuana charge and cooperated with the govern-
ment; Robert Vaillancourt was the brother of Smart, and
Blanche, their mother, was the owner of the house in
Maine, under the porch of which it was thought by John
that money profits of the drug business had been buried.
The argument rests on the claim that Hoyt, a government
agent, had interfered with efforts by counsel for John and
a private investigator to search for and, if found, to dig
up the money supposedly buried in Maine. The brief for
John asserts (p. 13): “. . . the existence of these hidden
monies would have been a devastating blow to the credi-
bility of Nowell and Smart and could very well have
persuaded the jury that they were totally unworthy of
belief.”
2(b)
At the trial, counsel for John presented testimony of
Frank Monico, a private investigator, as to a trip he made
to the home of Blanche Vaillancourt in Eagle Lake,
Maine, on October 7, 1984, to obtain information as to
any monies buried under the porch of her home (T3050-
65). After full discussion with counsei, the trial judge
Sustained an objection by the government that the testi-
mony was irrelevant. The judge struck out the testimony
and instructed the jury that it was “to be stricken from
your minds and totally disregard by you” (T3092). Coun-
sel for John had argued that “the relevance is clearly on
the issue of credibility” (T3085). The trial judge ruled
(T3085): “That makes it collateral, | think.” The judge
~A50-
evidently had in mind Federal Rule of Evidence 608(b),
under which specific instances of conduct of a witness,
for the purpose of attacking credibility, may not be
proved by extrinsic evidence. Rule 608(b) is, of course,
designed to avoid jury distraction and confusion through
the trial of collateral matters on the excuse of an im-
peachment purpose.
2(c)
After the guilty verdict against John had been returned
by the jury, a motion was filed on October 24, 1984 for
John and a co-defendant Randall, represented by the
same counsel, that the charges against them in the su-
perseding indictment “be dismissed on the grounds that
they have been denied due process of law. . .” (SA69).
From the evidence presented at the hearing of this motion
below, and from the Brief of John to this Court (p. 15), it
appears that the claim of due process denial to John is
based on allegations that government agent Hoyt, by
“outrageous” conduct, prevented John from securing
evidence at Eagle Lake, Maine, that money profits from
the illegal drug traffic had been buried there.
The motion to dismiss the indictment because of the
claimed outrageous conduct of Agent Hoyt was heard on
October 24, 1984. As we understand the record, the
significant evidence in summary showed the following.
Eagle Lake is a small town in the extreme northern part
of Maine, very close to the borders of the Canadian
provinces of Quebec and New Brunswick. Blanche Vail-
lancourt, an elderly lady, whose first language seems to be
French and whose command of English appears to be
limited (her daughter spoke to her in French) (13403),
lives there in a house which she owns; her daughter,
Barbara Vaillancourt, lives with her there; she also has a
son, Paul Smart, who lives in Connecticut; she also has a
son, Robert Vaillancourt, who lives in Connecticut with
his wife, Jacqueline Noweli. Nowell, Smart and Robert
Vaillancourt were at all relevant times cooperating with
the government under plea bargain agreements.
After Nowell and Smart had testified for the govern-
ment, counsel for John, with the help of Monico, a
private investigator, hoped to attack their credibility by
showing that they had buried money under the porch of
Blanche Vaillancourt’s house in Maine.
On Thursday, October 4, 1984, counsel for John asked
the irial judge to extend the limits of John’s bail bond to
permit him to go to and from Maine in company with
counsel when the trial was in recess; the application was
granted (T2431-32).
On Sunday, October 7, counsel for John, John and
Monico (private investigator) appeared without any prior
notice at 7:30 10 8 p.m. at the house of Blanche in Maine.
They spoke to her only, not to her daughter. They said
they wanted to search her house and did so. They said
that they wanted to come back in the morning to look
under the porch, and that they believed “there was
something buried under the porch” (1T3410-11). They
showed her no identification and did not tell her that her
sons were having problems with the drug laws (T3418-19).
Monico claimed in his testimony that Blanche consented
(T3420).
Evidently, Barbara, the daughter, received a report
from her mother that evening; either she, or her mother,
or both, telephoned her brothers. On the same evening,
Robert Vaillancourt asked the DEA office in Hartford to
have Hovt telephone him. Hoyt did so, and was told by
Robert that three men had come to his mother’s house in
Maine that evening after dark and had told her they were
there from the Court in Connecticut to search her house
for drug money; that his mother was “very upset” and
did not know “what was going on” (13375). Robert said
“he wanted to know who was at his mother's house and
what they were doing there” (T3376). Hovt also talked to
Smart that evening on the same subject; both Smart and
Robert denied that any money was under their mother’s
porch (13380). Hoyt on the same evening (October 7)
telephoned the State Police Barracks at Houlton, Maine
and asked that a trooper “go to Eagle Lake and find out
what was happening to the Vaillancourt house” (T3385);
he seems to have talked to “the dispatcher” (13385).
The next morning (Monday, October 8), John, his
counsel, and Monico returned about 8:15 to the house of
Blanche to dig under the porch. Barbara, the daughter,
came out on to the porch, and with accusations and
threats ordered them “to leave the property”: after two or .
three minutes they ieft (T3403). Blanche, the mother, —
could be seen and heard speaking French with Barbara,
but she did not speak to the three men (T3403-04).
At about the same time on October 8, the State Police
Barracks at Houlton telephoned Trooper Madore in or
near Eagle Lake to make contact with Barbara Vaillan-
court about a trespass at her residence. Madore tele-
phoned Barbara who wanted three men arrested for
criminal trespass; she said they had been to the house that
morning but had left and that they had been there the
night before (T3336-37).
-A53-
Trooper Madore then went to the “Fort Plaistead
Police Department” and there met John, his counsel, and
Monico, who were looking for him to complain that
“they had been threatened” at the Vaillancourt home and
to obtain help in digging for the supposed buried money.
They identified themselves and explained their purpose
(T3338-42). They explained the situation. Madore then
asked the advice by telephone of Maine Assistant District
Attorney Adams, who told Madore that “he was unsure
and to contact the complaint justice about it” (T3342).
Madore telephoned Complaint Justice Lithicum at her
office at Presque Isle, some sixty miles away, and ex-
plained the situation; she told them to come to her office.
They then flew in a plane from the airport at Frenchville,
not far from Eagle Lake, to Presque Isle. They went to
Justice Lithicum’s office, and Madore applied for a
search warrant for the Blanche Vaillancourt property.
While at the Lithicum office, Madore received a tele-
phone call from Trooper Caron at Houlton who said that
he had learned that Hoyt had advised that “possibly one
person fof the three] had no right to be in Maine”
(T3346). Madore then asked counsel if John was properly
in Maine and was told he was properly there. Nothing of
this appears to have been told to the Complaint Justice.
Counsel for John spoke with the Justice and submitted
an affidavit of John. Afier she heard and read everything
presented, Justice Lithicum declined to issue a search
warrant; “she said she’d not issue a warrant”; “she was
having a problem with the jurisdiction, where all this
occurred”; “she said there appeared to be sufficient
probabie cause. However, she did not feel comfortable
with it as a jurisdiction problem.” (T3342-44). No search
warrant was issued, and the group flew back to the
-
-A54-
airport at Frenchville. Madore then at the airport put
counsel for John in touch by telephone with Trooper
McMaster (13355), to whom Madore at that point turned
over the matter. McMaster was the Maine State Police
“drugman” (13346).
McMaster discussed the matter thoroughly with counsel
for John, who was pressing for a search of and digging at
the Vaillancourt home. McMaster had had no earlier
contact with the matter and had not spoken to Hoyt or to
anvone else in DEA. After speaking with counsel for
John and receiving all the information given, McMaster
telephoned Coniff, DEA agent in Portland, Maine, and
asked Coniff to have Hoyt telephone him (McMaster).
Hoyt did so that evening (October 8) and answered all the
questions McMaster asked. One of these was whether any
money was buried at the Vaillancourt home. Hoyt told
him that he (Hoyt) was satisfied that Robert had disclosed
all of his assets and that no monies of his were available
anywhere. Hoyt also said that if McMaster wanted the
home searched, Robert was willing to come up and dig.
under the porch for him; McMaster replied that howe
on the information I have, I don’t want it searched”?
(T3368; 3363-68). McMaster testified (173366) that he
took the information counsel for John had given him and
“] conducted my own independent investigation of that
information and I come to the conclusion that I didn’t
believe it was probable cause to believe the money was
there and I didn’t pursue it further.” McMaster testified
that he saw no evidence that Nowell or Smart had buried
money under the porch (13372).
The foregoing is the extent of the evidence of “out
rageous” conduct by the government, Hoyt being the
only government agent involved.
-A55-
The trial judge at the conclusion of the evidence denied
the motion on the ground that there had been “an utter
failure of proof by either or both of the defendants on the
motion to [dismiss} the indictment based on outrageous
Government conduct” (T3437). Earlier, the trial judge
had ruled that even if evidence had been discovered that
monies were buried in Maine, such evidence would be
inadmissible under the rule against collateral impeach-
ment. The judge asked (T3435): “What else is it except
collateral evidence to impeach?” The judge noted that for
the same reason, as earlier explained herein, he had struck
at the trial the testimony of Monico (T3433).
2(d)
We agree with the trial judge that the conduct of Agent
Hoyt is not shown to have been “outrageous.” He did not
interfere with the efforts in Maine on behalf of John.
Hoyt did not go to Maine nor send others there. He made
one telephone call on his own initiative, that on Sunday
evening, October 7, 1984, to the dispatcher at the Maine
State Police Barracks at Houlton, Maine. This telephone
call was to ask that a State police officer go to Eagle Lake
and find out what was happening at the Vaillancourt
home. Hoyt made a second telephone call on the evening
of Monday, October 8 to Trooper McMaster, the
“drugman” of the Maine State Police. This second call
was not at the initiative of Hoyt; on the contrary, it was in
response to a request of McMaster, a Maine officer, who
was making his own investigation. Hoyt answered ques-
tions of McMaster. It is true that in the course of his
answering, he expressed an opinion of counsel for John,
which was unflattering and obscene, but this is far from
Outrageous conduct which would bar a prosecution by the
government.
| :
-A56-
There is not the slightest evidence to show that the
refusal of the Complaint Justice (with whom Hoyt had no
contact whatever) to issue a search warrant, and the
failure of the Maine State Police to determine whether
monies had been buried under the Blanche Vaillancourt
porch, were caused by Hoyt.
2(e)
Nothing done by the government through Hoyt vio-
lated John’s right to due process, to a fair trial, to present
a defense, or to the effective assistance of counsel. We
find no error in the ruling of the trial judge denying his
motion after trial to dismiss the indictment.
D. The Appeal of Thomas Ciccaglione
Appellant Thomas was found guilty by the jury on
count twenty-one, possession in 1980 with intent to dis-
tribute marijuana, a Schedule | controlled substance (21
U.S.C. § 841(a)(1}); he was found not guilty on count
eighteen, conspiracy to distribute and to possess with
intent to distribute marijuana (21 U.S.C. § 846). These
two were the only counts in which he was named.
Counsei for appellant Thomas make two arguments for
reversal of his conviction on count twenty-one.
(a)
The first argument for appellant Thomas (Brief, pp.
6-14) is that the government was erroneously permitted to
present evidence of a sale of marijuana to Thomas in
1981, whereas he was charged in count twenty-one with
possession of marijuana with intent etc. in the fall of
1980, after September 24, 1980. This is said to have
“amended the indictment” (Brief for Thomas, p. 7) and
-A5/-
to have created “an impermissible variance of the indict-
ment” (Briet, p. 8.)
1(b)
A government witness, Nowell, testified on September
25, 1984, that in September 1980 she sold about 300
pounds of marijuana “to him from Southwick” (T1029).
She further testified that she didn’t know the last name of
“him,” but it was Italian and he was in the courtroom.
She then identified “him” in the courtroom as appellant
Thomas (T1030). Nowell also testified without objection
that a 28,000 pound load of marijuana was imported into
Connecticut in 1981 (T1042), of which she and her hus-
band, Robert Vaillancourt, sold about 14,000 pounds
(T1097), of which three or four hundred pounds were
sold “to Tom from Southwick [Massachusetts, just north
of the Connecticut line]” (T1049). On cross-examination
by counsel for Thomas (T 1324-90), it was established that
the witness knew Thomas very well, had known him since
1978, that he had at her invitation several times been in
her home for meals together (T1377), that they played
tennis together, and that she had been his guest for two
days at a home rented by him on Cape Cod (T1377-78).
She was also cross-examined on September 26, 1984,
about her testimony of a sale to Thomas in 1981 (T1378-.
81). On redirect examination, the government, without
objection, questioned Nowell about her testimony as to
sales to Thomas in 1981 (T1452-53). Not only were there
— no objections to testimony of the witness Nowell to a sale
of marijuana to Thomas in 1981, but there was no motion
+ at the time to strike her testimony.
Our search of the record indicates thai the first time
any mouion was made LO strike the testimony of Nowell as
OO
-A58-
to a 1981 sale to Thomas was after the government had
rested its case on October 10, 1984. Among a number of
motions then made for various defendants was a motion
for appellant Thomas “to strike the testimony that was
elicited from Ms. Nowell on redirect . . . as regards any
involvement by my client in 1981” (T2912). (It may be
noted that Nowell did not first testify to involvement by
Thomas in 1981, on her redirect; she had so testified on
direct and on cross, as already shown.) Counsel for
Thomas then stated that he would like to “renew” his
motion, but no earlier such motion has been found. In
any event, after argument, the motion was denied
(T2915). It is also argued for Thomas (Brief, p. 7) that
the trial judge erroneously refused to “give limiting in-
structions to the jury” as to the Nowell testimony of a
1981 sale to Thomas. We are unable to verify this in the
transcript because at the page cited (3169) there is refer-
ence only to a “request three” and there are no requests
of Thomas contained in the record. We will assume,
however, that a limiting instruction was in fact refused.
I(c)
The argument for Thomas that a sale in 1981 was not
charged in the indictment and that, therefore, no evidence
of such a sale was admissible, is entirely unfounded.
Thomas was charged in count eighteen with conspiracy to
possess with intent to distribute, and to distribute, mari-
juana in violation of 21 U.S.C. § 846. The conspirators
were named and included many persons other than
Thomas and also others not named but “to the grand jury
known and unknown.” These would include Nowell, who
was “known to the grand jury” because she testified
before it. The period of the conspiracy was alleged (A170)
-A59-
to have been trom about January |, 1976 io March
1984—a period including 1981. Evidence of a sale to
Thomas in 1981 was clearly admissible to show an opera-
tion of the conspiracy by two or more of the conspirators.
True, the 1981 sale to Thomas was not alleged an an overt
act in furtherance of the conspiracy, and the 1980 sale was
so alleged, but this means nothing. There is no require-
ment of an overt act in 21 U.S.C. § 846—unlike 18
U.S.C. § 371, the general conspiracy statute—and this
Court has held that in a prosecution under 21 U.S.C.
§ 846 no overt act need be alleged or proved, United
States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert.
denied, 425 U.S. 970 (1976).
We are unable to accept the argument for Thomas that
evidence of the 1981 sale amended the indictment as to
him or was an attempt to prove an offense not charged in
the indictment, or was a “variance” of the indictment.
2(a)
The second argument for appellant Thomas is that
there was “outrageous conduct of the office of the United
States Attorney in showing the only witness against Cic-
caglione where he sat at the defense table immediately
prior to the in-court identification testimony by that
witness” (Brief, p. 14). The characterization “outra-
geous” was apparently (as with appellant John) also
taken from United Siates v. Russell, 411 U.S. 423, 431-32
(1973). On the basis of such “outrageous” misconduct,
counsel for Thomas assert that “he should be granted a
new trial” (Brief, p. 19).
2(b)
During the direct testimony of Nowell, she identified
Thomas in the courtroom by pointing him out, without
any hesitation, to the jury (T1029). Without any objec-
tion from counsel for Thomas, the Court ordered that the
record reflect a correct identification by the witness of
Thomas (T1030). There was no question whatever by
anybody at the time that the witness properly and cor-
rectly identified Thomas.
In the cross-examination of Nowell by counsel for
Thomas, she testified that the evening before she testi-
fied, “they” (the office of the United States Attorney)
“tried to familiarize [her] with the courtroom” (T1373-
74). They “told me where certain attorneys and their
clients sat” (T1374) including Thomas and his attorney,
because they “expected who was going to cross-examine
me” (11374), but all she knew was they were “on that
side” (T1378).
2(c)
No motion was made at trial for Thomas in respect to :
his in-court identification by Nowell, but her identifica-
tion of other defendants was challenged by their counsel
(T1375-76, 1385). At the beginning of the trial, the Court
permitted any defendant to avail of an objection by any
other defendant (T110). We are, therefore, prepared to
consider the point, but failure to raise it at the trial
certainly creates doubt as to its merit.
It was abundantly clear from the evidence that Nowell
had known Thomas for some vears, whether or not she
remembered his last name, and could easily identify him.
She testified that she had known Thomas since 1978
-A6l1-
(T1030), that she remembered his telephone number and
recited it from the stand (T1030), that he came two or
three times in 1980 to her home in Marlborough to pick
up marijuana, that he drove a Volvo (T1031), that she and
her husband delivered marijuana in 1981 to the house of
Thomas in Southwick (T1508), that she played tennis
with Thomas, that she invited him to her home for
dinner, and that she was a guest for two days in his house
on Cape Cod (T1377).
2(d)
The brief for appellant Thomas insists (p. 6) that “the
Government’s on/y witness against Ciccaglione” (empha-
sis In Original) was Nowell. This would appear to repre-
sent that Nowell was the only witness who showed any
connection of Thomas with the subject marijuana trans-
actions. This is not in keeping with the record. It appears
that a witness for the government, Paul Smart, was a
participant in the criminal conduct charged in the su-
perseding indictment who made a plea bargain with the
government. During his testimony, he was asked whether
he could identify anyone in the courtroom who participa-
ted in the events of the marijuana conspiracies to which
he testified. He at once identified two persons, one of
whom was appellant Thomas (T2003-04). Smart, a
brother of Robert Vaillancourt (the husband of Nowell),
testified that Thomas was seen by him at least twice at his
house where Thomas was “talking with Bob [Vaillan-
court] and Jackie [Nowell}” and that Thomas “picked up
some dope.”
We find in the record, therefore, no justification for the
assertion for Thomas (Brief, p. 15) that Nowell’s “in-
~A62-
court identification was the sole substantial incriminating
testimony against Ciccaglione.”
2(e)
We conclude that there is no proof in the record of any
“outrageous” conduct by the government in respect of
Thomas and that in all respects he received a fair trial.
3(a)
In his reply brief, Thomas adopts the arguments of
appellant LaChance on the issue of whether the district
court erred in denying, without a hearing, the motion of
LaChance and Zimmerli “to Dismiss for Failure to Com-
ply with the Law in the Selection of Grand Jurors” (Reply
Brief, p. 2). We have already concluded (section A of
opinion) that Chief Judge Daly properly denied that
motion.
3(b)
Thomas also adopts in his reply brief the arguments of
appellant John on the issue of the district court’s denial
of the “Motion to Strike the Petit Jury Panel and to
Summon New Veniremen” (Reply Brief, p. 2). We have
concluded above (section C of opinion) that this argu-
ment is without merit.
The judgments, from which these four appeals are
taken, are each AFFIRMED.
-A63-
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA
-VERSUS- : Criminal Action
WILLIAM F. ZIMMERLI, : No. B-83-57
ET AL.
x
UNITED STATES COURTHOUSE
Bridgeport, Connecticut
May 2, 1984
BEFORE:
HON. T.F. GILROY DALY
Chief United States District Judge
And a Jury
APPEARANCES:
FOR THE GOVERNMENT:
HOLLY FITSIMMONS, AUSA
FOR DEFENDANT WILLIAM ZIMMERLI:
IRA B. GRUDBERG
~A64-
May 2nd, 1984.
THE COURT: Ladies and gentlemen, let
there be no mistake: I expect counsel and
defendants, and counsel for both sides, that
is, to be in this courtroom when I come on
the bench. We're here this morning for
proceedings in connection with the motions
addressed to the jury selection process in
the District. Upon a careful review of the
moving papers, for a lack of a sufficient
showing, the motions are in all respects
denied; except I'd like to hear argument on
the selection of the foreperson of the grand
jury in this district.
Who is going first for the defense?
MR. ZWERLING: Your Honor, obviously,
I've been taken a little bit by surpise.
THE COURT: That's part of the life of a
trial lawyer, I think, and a trial judge.
MR. ZWERLING: Absolutely. We have some
things which we'd like to proffer, perhaps in
~A65-
a way that may, at a later point in the day
on the motion --
THE COURT: What part of what motion?
MR. ZWERLING: Well, as to the violation
of the Fifth and Sixth Amendment rights of
our clients as to the under representation of
blacks and women in the -- and minorities in
the qualified wheels.
THE COURT: Let me just make it clear.
These motions have been under contemplation
since sometime last fall. They have been
filed, and they have been refiled. There is
an insufficient showing on the papers, and I
will not, at this time, take anything further
except on the question of the seleciton of a
foreperson of the Grand Jury.
MR. ZWERLING: Very well.
-A66-
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA :
Ve : Criminal No.
B-83-57-TFGD
WILLIAM LACHANCE, et al. :
AMENDED VFRIFIED MOTION TO DISMISS
INDICTMENT AND STAY PROCEEDINGS ON
GROUNDS OF SUBSTANTIAL FAILURE TO COMPLY
WITH LAW IN THE SELECTION OF GRAND
AND PETIT JURORS
To The Honorable T.F. Gilroy Daly, Chief
Judge:
COME NOW defendants, by counsel, and
pursuant to the fifth and sixth amendments to
the United States Constitution: 28 U.S.C.
§1861 et seg; Rule 26, Federal Rules of
Criminal Procedure, and the Plan of
Implementation for the District of
Connecticut (hereinafter, Local Plan), and
move this Court to stay petit jury selection
proceedings and to dismiss the indictment
filed in this case on grounds of improper
selection of grand and petit jurors.
~A67-
Defendants further pray this Court grant them
a hearing. In support of this motion
defendants state:
1. Examination of juror selection data
was made by John Lambert, Ph.D., Associate
Professor, Temple University, Philadelphia,
July 9, 1984. At the pretrial
hearing held on May 2, 1984, the
Court ruled that, applying the
statistical analysis used by the
Second Circuit in United States v.
Jenkins, 496 F.2d 57, .
cert. denied, 420 U.S. 925 (1975),
| the defendants had failed to make an
| adequate showing on their claims of
discrimination in the overall
selection of grand and petit jurors.
Accordingly, the Court denied the
attached motion on all grounds
except the grand jury foreperson
issue. However, in light of the
Supreme Court's recent decision in
i Hobby v. United States, U.S.
‘ oy . * a - 1 (June 26,
T98T), the motion is now denied as
to that issue as well.
(July 10, 4:23 PM '84)
(S) T.F. ae aly
oF. 9 » CH.U.S.D.J.
-A68-
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA
Ve : Criminal No.
B-83-57-TFGD
WILLIAM LACHANCE, et al.
VERIFIED MOTION TO DISMISS INDICTMENT
AND STAY PROCEEDINGS ON GROUNDS OF
SUBSTANTIAL FAILURE TO COMPLY WITH LAW
IN THE SELECTION OF GRAND AND PETIT JURORS
To the Honorable T.F. Gilroy Daly, Chief
Judge:
COME NOW defendants, by counsel, and
pursuant to the fifth and sixth amendments to
the United States Constitution; 28 U.S.C.
§1861 et seq: Rule 6, Federal Rules of
Criminal Procedure, and the Plan of
Implementation for the District of
Connecticut (hereinafter, Local Plan), and
move this Court to stay petit jury selection
proceedings and to dismiss the indictment
filed in this case on grounds of improper
selection of grand and petit jurors.
Defendants further pray this Court grant
-A69-
them a hearing. In support of this motion
defendants state:
1. Examination of juror selection data
was made by John Lamberth, Ph.D., Associate
Professor, Temple University, Philadelphia,
Pennsylvania, including examination of the
Local Plan for the District of Connecticut,
juror questionaires, and records concerning
the composition of grand and petit juries
drawn from the 1977 and 1981 qualified wheel
in the Bridgeport Division, and grand juries
and their forepersons. (See affidavit of
John Lamberth. )
2. As a result of individual,
cumulative, and aggregate effects of the
selection procedures in this District, there
has been occurring:
A. A pattern of active
discrimination against blacks in the
selection of grand and petit jurors.
B. A subdstantial and statistically
-A70-
significant underrepresentation of blacks
selected as grand and petit jurors which is so
grossly disproportionate to their numbers in
the elegible voting age population for this
district that the "fair cross section
requirement" of the Jury Selection and
Service Act and the Sixth Amendment has been
breached.
) C. A pattern of active
discrimination against females in the
selection of grand and petit jurors, and of
women selected as forepersons of grand
juries.
D. A substantial and statistically
significant underrepresentation of females
selected as grand and petit jurors, and as
forepersons of grand juries, which is so
grossly disproporionate to their numbers in
the eligible voting age population for this
District that the "fair cross section
requirement" of the Jury Selection and
+ fe ELSDEI UREN 9 LA INR
-A71-
Service Act and the Sixth Amendment has been
breached.
3. Defendants allege the following
specific underrepresentation:
A. Blacks are statistically,
significantly and substantially
underrepresented in the master wheel (source
list) as follows:
(1) Only 3.52% of those listed
in the 1977 and 1981 master wheels are black
compared to a black population in the
District of 6.98% of the voting age
population according to the 1980 census.
(2) The comparative disparity
is 49.57%.
(3) The percentage obtained is
8.46 standard deviations below the expected
percentage.
(4) The probability of this
result occurring by chance is less than two
in one million.
-A72-
B. Blacks are statistically,
significantly, and substantially
underrepresented in the qualified wheel as
follows:
(1) Only 4.83% of those listed
in the 1977 and 1981 qualified wheels are
black compated to a black population in the
District of 6.98% of the voting age
population according to the 1980 census.
(2) The comparative disparity
is 30.8%.
(3) The percentage obtained is
3.69 standard deviations below the expected
percentage.
(4) The probability of this
result occurring by chance is less than four
in 10,000.
C. Females are statistically,
significantly, and substantially
underrepresented in the qualified wheel as
follows:
-A73-
(1) Only 48.91% of those
listed on the 1977 and 1981 qualified wheels
are females compared to a female population
in the District of 53.17% of the voting age
population according to the 1980 census.
(2) The comparative disparity
is 8.01%.
(3) The percentage obtained is
3.77 standard deviations below the expected
percentage.
(4) The probability of this
result occurring by chance is less than two
in 10,000.
D. Women are statistically,
significantly and substantially
underrepresented among grand jury forepersons
as follows:
(1) Of seven grand juries for
which records are available up to and
including the grand jury indicting the
defendants, zero females were forepersons. —
-AT4-
(2) The comparative disparity
is 100%.
(3) The percentage obtained is
2.44 standard deviations below the expected
percentage.
(4) The probability of this
result occurring by chance is less than two
in 100. |
4, Blacks are a distinct and cognizable
group in the community.
5. Females are a distinct and cognizable
group in the comunity.
6. The underrepresentation of blacks and
females on grand and petit juries and of
females in the position of foreperson in the
Bridgeport Vicinage is due to the systematic
exclusion of blacks and females in this
District's implementation of the Jury
Selection and Service Act and Local Plan, the
sources of which include, but are not limited
to:
-AT5-
A. Source list inadequacies;
B. The exercise of subjective
judgment in the qualification and selection
of grand jurors and grand jury forepersons;
and
C. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions based upon:
(1) Insufficient medical
documentation;
(2) Previous jur. duty;
(3) Occupation;
(4) Child care;
(5) Student status; and
(6) Usurpation of judicial
function by the jury clerk.
7. Defendants further allege the
following substantial violations of the Jury
Selection and Service Act and the Local Plan
of Implementation which affect the random
nature and objectivity of the selection
-A76-
process:
A. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions, based upon insufficient medical
documentation;
B. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions, based upon previous jury duty;
C. Erroneous permanent
disqualifications, exemptions, excusals, or
exclusions, based upon occupation;
D. Erroneous permanent
disqualifications, exemptions, excusals, or
exclusions, based upon child care;
E. Erroneous permanent
disqualifications, exemptions, excusals, or
exclusions, based upon student status;
~A7TT-
exclusions, exceeding one per centum of the
number of persons who return executed juror
qualification forms during the period
specified in the Plan between two consecutive
filling of the master jury wheel. See
Section XIII of the Local Plan.
H. Erroneous inclusion of
permanently excused and exempted jurors in
the qualified wheel.
8. Out of 2040 disqualified juror
questionnaires examined, 232 were disqualfied
inaccurately, constituting an error rate of
11.37%.
9. Defendants specifically adopt the
Affidavit of John Lamberth, dated February 1,
1984, which is made a part hereof.
WHEREFORE, upon the foregoing prima facie
showing defendants pray for a stay of further
petit jury selection proceedings and for
dismissal of the indictment, and further pray
this Court grant them a hearing.
Eee...
~A78-
Respectfully submitted,
Counsel for Counsel for Joseph
William LaChance: Stanko:
(Sine J. Ginebers (S) Alan Silber
-C. SILBER & RUBIN
108 N. Columbus St. 177 Prince St.
Alexandria, VA 22314 New York, NY 10012
(703) 836-5551 (202) 677-1004
Counsel for Steven Counsel for Joy
Busby: Zimmer11:
(S) Herbert C. Fogelnest (S) Charles Hanken
NEWMAN, P.C. ‘ 265 Congress Street
1420 Walnut Street Bri rt, CT 06604
Philadelphia,PA 19102 (203) 366-5838
(215) 545-3773
Counsel for William Counsel for Daniel
Zimmer1i: Ludrtecus:
(S) Ira B. peudbere (S) Prederick Mycock
BELT, P.C. 3291 Main Street
350 Orange Street Barnstable, MA 02630
New Haven, CT 06503 (617) 362-4336
(203) 772-3100
-A79-
VERIFICATION
I, NINA J. GINSBERG, being duly sworn,
hereby certify, verify and state under
penalty of perjury under the laws of the
United States of America and pursuant to 28
U.S.C. §1746, that the foregoing facts
averred are true and correct to the best of
my knowledge and belief.
Nina J. Ginsberg /s/
Nina J. Ginsberg
STATE OF VIRGINIA
> 8s
CITY OF ALEXANDRIA :
Caro West /s/
arolyn West
Notary Public
My commission expires June 5, 1987.
~480-
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
AFFIDAVIT
JOHN LAMBERTH, of full age, being duly
sworn according to law deposes and says:
1. I am an associate professor of
psychology at Temple University in
Philadelphia, Pennsylvania, as is indicated
in my curriculum vitae appended hereto. I am
Director of the Division of Social Psychology
at Temple University. My credentials include
a Ph.D. in psychology and extensive
experience and publishing in matters relative
to selection and composition of grand and
petit jurys.
2. Prior to making this affidavit, I
examined the Local Plan for the District of
-A81-
Connecticut, implementing the Jury Selection
and Service Act, and consulted with Kevin F...
Rowe, Chief Deputy Clerk in charge of jury
matters.
3. Under my supervision data concerning
the selection and composition of grand and
petit jurys and grand jurys and their
forepersons were collected between December
21 and 29, 1982 in the Bridgeport Division of
the United States District Court for the
District of Connecticut. Further information
was supplied to me by Mr. Rowe concerning
grand jurys in letters dated Jarwary 5 and
16, 1984, and in several telephone
conversations with Mr. Rowe and Chrystine W.
Cody, Deputy Clerk. The data covered the
master and qualified wheels of 1977 and 1981
and the grand jurys associated with these
-A82-
wheels. All questionnaires of qualified and
disqualified, exempted, excused or excluded
individuals in both master wheels were
examined. The data for the qualified wheel
is properly seen as the population of
qualified individuals in the 1977 and 1981
wheels in the Bridgeport Division and the
data for the master wheel is properly seen as
a sample of the source list for the 1977 and
1981 wheels of the Bridgeport Division.
According to information supplied by Mr.
Rowe, all data prior to the 1977 wheel has
been destroyed. The results of analyzing the
data are as follows:
a. Blacks were statistically,
significantly and substantially
under-represented in the master wheels, which
are comprised of the qualified and
-A83-
disqualified individuals (the source list).
Only 3.52% of those listed in the master
wheels were black compared to a black
population in the District of 6.98% of the
voting age population according to the 1980
census. This is a comparative disparity of
49.57% and the percentage obtained is 8.46
standard deviations below the expected
percentage. The probability of this result
occurring by chance is less than 2 in
1,000,000.
b. Blacks were statistically,
significantly and substantially
under-represented in the qualified wheels.
Only 4.83% of those listed in the qualified
wheels were black compared to a black
population in the District of 6.98% of the
voting age population according to the 1980
-A84-
census. This is a comparative disparity of
30.80% and the percentage obtained is 3.69
standard deviations below the expected
percentage. The probability of this result
occurring by chance is less than 4 in 10,000.
c. Women were statistically,
significantly and substantially
under-represented in the qualified wheels.
Only 48.91% of those listed in the qualified
wheels were women compared to a female
population in the District of 53.17% of the
voting age population according to the 1980
census. This is a comparative disparity of
8.01% and the percentage obtained is 3.77
standard deviations below the expected
percentage. The probability of this result
occurring by chance is less than 2 in
10,000.
-AR5-
d. Women were statistically,
significantly and substantially
under-represented among grand jury
forepersons. Of the seven grand jurys for
which records are available to me, up to and
including the one that indicted LaChance,
zero females were forepersons. This is a
comparative disparity of 100% and the
percentage obtained is 2.44 standard
deviations below the expected percentage.
The probability of this result occurring by
chance is less than 2 in 100.
e. Of 2040 disqualified juror
questionnaires examined, 232 were
disqualified inaccurately constituting an
error rate of 11.37%
4, Examination of the data indicates
that the sources of these large disparities
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and nonrandom selection of jurors may
include, but are not limited to the
following:
a. Source list inadequacies.
b. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions, based on insufficient medical
documentation.
c. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions based on previous jury duty.
d. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions based on occupation.
e. Erroneous permanent
disqualifications, exemptions, excusals or
exclusions based upon child care.
f. Erroneous permanent
~A87-
disqualification, exemptions, excusals or
exclusions based upon student status.
g.- Usurpation of judicial functions
by jury clerks.
h. Erroneous inclusion of
permanently excused and exempted jurors in
the qualified wheels.
5. On the basis of my training and
research in social psychology, group dynamics
and group leadership, I would testify that
because of the power associated with being a
leader and the inordinate amount of social
influence the leader exerts, particularly one
appointed by a judge or megistrate, the
effect of under-representation of women as
grand jury forepersons is to reduce the
representation of women on the grand jury.
The facts set forth herein are true and
-A-88-
correct to the best of my knowledge,
information and belief.
John Lamberth /s/
Jonn Lamberth, Ph.D.
SWORN TO AND SUBSCRIBED
before me this lst day of
FEBRUARY, 1983.
,
/s/
‘AR IC
My commission expires: 10/23/84
Name:
Birthdate:
Address:
Phone:
Marital Status:
Education
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VITA
John Lamberth
September 12, 1936
Department of Psychology
Temple University
Philadelphia, PA 19122
(215) 787-1554
22 Hillside Drive
Malvern, PA 19355
(215) 296-0659
Married, two children
Austin College 1954-1958
B.A. in 1958
Harvard University 1958-1961
B.D. in 1961
San Jose State
College 1966-1967
University of
Texas 1967-1969
Purdue University 1969-1970
M.S. in 1970
Ph.D. in 1970
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Fellowships and Scholarships Received
N.S.F. Summer Teaching
Assistant Tranineeship 1968
N.I.M.H. Traineeship 1968-1969
N.I.M.H. Pre-doctoral Research
Fellowship 1969-1970
Postdoctoral Positions
Associate Professor Temple
University 1973-present
Assistant Professor
University of Oklahoma 1970-1973
Editorial Responsibilities
Ad hoc consultant for:
Journal of Personali
ou Personality
<*eiietin- _—
Journal of Personality and Social
and Developmental Psychology
Panel)
Research Interests
Small Group Decision Processes, Jury
Behavior, Teaching of Psychology,
Interpersonal Attraction.
Teaching Interests
~A91-
Personality, Social Psychology, and
Introductory Psychology. ;
ae ee Courses:
nt ctory Personality,
Seminar in Experimental Personality.
Graduate Courses:
Personality, social Psychology, Research
Methods in Experimental Personality,
Seminar in Attraction Theory, Teeching of
Psychology, Psychology and the Law.
Mniversity Service
Undergraduate Advisor (Psychology Dept.)
1973-1976
Coordinator of Introductory Psychology
1973-1980
Committee Memberships
A. Undergrqaduate Affairs
(Departanent ) 1973-1980
B. Research
(Department ) 1974-75, 1978-80
C. College of Liberal Arts
Computer Committee
(College) 1977-1982
D. Weiss Hall Media Services
Committee (University ) 1976-1982
E. Graduate School Review
Committee (Dept. of
Criminal Justice M.A.) 1981-
Committee Chairmanships
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A. Undergraduate Affairs
(Departmental ) 1974-1977
B. College of Liberal Arts
Computer Committee
(College ) 1979-1982
C. Weiss Hall Media Services
Committee (University) 1977-1982
D. Graduate School Review
Committee (Dept. of
Criminal Justice M.A.) 1980-
Development of New Student Resources
Primarily through my suggestion and
continued interest, Temple University
began course offerings at the "pper Main
Line YMCA (UMLY) in the Fall Semester,
1982. As the University has had no
presence in the western suburtbe, this
represents a major new resoure for us.
Through UMLY, we have access to a mailing
list that reaches some 50,000
individuals, making this one of the mre
important potential resources to recruit
guality new students in the decade of the
80's.
Consultantships
Consultant to U.S. Army for Modern
Volunteer Army, 1971-1972. Consultant to
Police Assaults Study, funded by Law
Enforcement Assistance Administration
Professional Affiliations and Honors
-A93-
American Psychological Association,
Psychonomic Society,
Eastern Psychological Association,
Society of Experiment Social Psychology,
Listed in American Men and Women in
Science,
Peter J. Devine, Jr. Award (for
Distinguished Service to the Camden
County Bar Association, 1981
Articles Reprinted as Chapters
Byrne, D., Ervin, C.R., & Lamberth, J.
The continuity between the experimental
study of attraction and "real life"
computer dating. Reprinted in:
(1) A. Snadowsky and S. Rosenberg
(Eds.), Social psychology:
Reserarch in laboratory and natural
wee
ork: Press Press, 1972.
(2)( H. Kaufman and L.Z. Solomon (Eds.),
Readings in introductory social
chology.
fe ts Holt, Rinehart & Winston,
1973.
(3) S.W. Duck, (Ed.),
Theory and practice in interpersonal
attraction.
New York: Academic Press, 1976.
(4) C. Mayo and M. La France (Eds.),
Evaluating research in social
sychology.
Belmont, ae Brooks/Cole, 1977.
q
-A94-
(5) D. Byrne and L.A. Byrne (Eds.),
Exploring human sexuality.
New York: Harper & Row, 1977.
Books
Lamberth, J., McCullers, J.C., & Mellgren,
R.I. Foundations of chology. New York:
Harper & Row, 1976.
Lamberth, J., Rappaport, H., & Rappaport, M.
Personality: An introduction. New York:
Sifeat tees f, 1978.
Lamberth J. Social psychology. New York:
Macmillan, 1980.
Book Chapters
Byrne, D., & Lamberth, J. The effect of
erotic stimuli on sex arousal, evaluative
responses, and subsequent behavior.
Technical rts on the Commission on
cenity and omer eP Ol. 5,
Washington, D.C., U.S. rmment Printing
Office, 1970.
Byrne, D., & Lamberth, J. Reinforcement
theories and cognitive theories as
complementary approaches to the study of
attraction. In B. I. Murstein (Ed.),
Theories of attraction and love. New York:
Springer, 1971. Pp. 59-85.
Articles
-A95-
Byrne, D., Lamberth, J., Palmer, J., *
London, O. Sequential effects as a
function of explicit and implicit
interpolated attraction to responses.
Journal of Personality and Social
Psychology, 1965, 13, 70-78.
Byrne, D., Ervin, C.R., & Lamberth, J. The
contirmuity between the experimental study
of attraction and "real life" computer
dating. Journal of Personality and Social
Psychology, 1970, PEF i .
Lamberth, J., & Craig, L. Differential
magnitude of reward and magnitude shifts
using attitudinal stimuli. Journal of
Fp ne Research in Personality, 1970,
a
Gouaux, V.C., & Lamberth, J. The effect on
interpersonal attraction of successive and
simultaneous presentation of strangers.
Psychonomic Science, 1970, 21, 337-338.
Byrne, D., Gouaux, C., Griffitt, W.,
Lamberth, J., Murakawa, N., Prasad, M.B.
Prasad, A., & Reumirez, M., III. The
ubiquitous relationship: Attitude
similarity and attraction. Human
Relations, 1971, 24, 201-207.
Lamberth, J. Sequential variables as
determinants of human performance with
attitudinal reinfocements. Psychonamic
Science, 1971, 22, 350-352.
Lamberth, J., & Byrne, D. Similarity-
attraction or demand characteristics?
Personaltiy: An International Journal,
TO71, 2, 77-51.
-A96-
Gouaux, V.co., *& Lamberth, J. Interpersonal
attraction as a fiumction of Izard's FIRS
evaluation and affective states.
ee An International Journal,
l » £& ~ +
Gouaux, C., Lamberth, J., *& Frederich, G.
Affect and interpersonal attraction: A
comparison of trait and state measures.
Journal of Personality and Social
Psychology, 1972, 25, 53-58.
Lamberth, J., Gay, R.A., & Dyck, D.G.
Differential reward magnitude and human
conditioning. Psychonamic Science, 1972,
28, 231-233.
Lamberth, J., Gouaux, C., & Davis, J.
Agreeing attitudinal statements as positive
reinforcers in instrumental conditioning.
Psychonomic Science, 1972, 29, 247-249.
Lamberth, J., & Padd, W. Student's attitudes
and absenteeism: A possible link.
Psychological Reports, 1972, 31, 35-40.
Lamberth, J., & Dyck, D.G. Reward magnitude
and sequence of magnitudes as determinants
of resistance to extinction in humans.
Journal of Experimental Psychology, 1972,
96, 280-286.
Byrne, D., Cherry, F., Lamberth, J., *%
Mitchell, H. E. Husband-wife similarity in
response to erotic stimli. Journal of
-A97-
Personality, 1973, 41, 385-394.
Byrne, D., Clore, G.L., Griffitt, W.,
Lamberth, J., & Mitchell, H. When research
paradigms converge: Confrontation or
integration. Journal of Personality and
Social Psychology, 1973, 28, 513-300.
Byrne, D., Clure, G.L., Griffitt, W.,
Lamberth, J., & Mitchell, H. One more
time. Journal of Personality and Social
Psychology, 1973, 28, 323-324.
Lamberth, J., Gouaux, C., & Padd, W., The
affective eliciting and reducing properties
of attraction stimuli. Social Behavior and
Personality, 1973, 1, 95-107.
Byrne, D., Msher, J.D., Lamberth, J., &
Mitchell, H.E. Evaluations of erotica:
Facts or feelings. Journal of Personali
and Social Psychology, 1975, 29, 111-116.
Nation, J.R., Knight, J.M., Lamberth, J., &
Dyck, D.G. Programmed student achievement:
A test of the avoidance hypothesis. The
Journal of Experimental Education, 1974,
Davis, J., & Lamberth, J. Fnergization
properties of positive and negative
stimli. Journal of Experimental
Psychology, 1974, 103, 196-200.
Lamberth, J., Rataj, G.W., & Padd, W. An
-A98-
evaluation of differential topic
importance, population homogeneity, and
relatedness of attitudinal stimuli in
attraction research. Journal of
Representative Research in Social
Psychology, 1974, 5, °
Lamberth, J., & Knight, J.M. An
embarrassment of riches: Effectively
teaching and motivating large introductory
psychology sections. Teaching of
Psychology, 1974, 1, 16-20.
Lamberth, J. & Knight, J.M. To curve or not
to curve: The defense. Teaching of
Psychology, 1975, 2, 82-83.
Byrne, D., Lamberth, J., Mitchell, H.E., &
Winslow, L. Sex differences in attraction:
Response to the needs of the opposite sex.
Journal of Social and Econimic Studies,
> =
Lamberth, J., & Kosteski, D. Mastery teaching
with and without incentives for repeating
quizzes. Teaching of Psychology, 1979, 6,
71-74,
Lamberth, J., & Kosteski, D. Student
evaluations: An assessment of validity.
Teaching of Psychology, 1981, 8, 8-11.
Lamberth, J., & Kimmel, A.J. The application
of scientific knowledge: Ethical issues
and responsibilities in the behavioral
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sciences. In A. J. Kimmel (ed.) New
directions for eooreee es of social and
behavioral science: Ethics for
human-subjects research, San Francisco:
Josey-Bass, 1981.
Lamberth, J., Krieger, E., & Shay, S. Juror
decision-making: A case of attitude change
mediated by authoritarianism. Journal of
Research in Personality, in press.
Lamberth, J., Shay, S., & Krieger, E. Do
juries polarize? (Submitted.)
Papers Read
Ryrne, D., Lamberth, J., & Palmer, J.,
Sequential effects in responding to
attitudinal stimli," at the Psychonomic
Society, St. Louis, October, 1968.
Lamberth, J., "Differential magnitude of
reward and magnitude shifts using attitudinal
stimli," at the Southwestern Psychological
Association, Austin, April 1969.
Lamberth, J., & Gay, R.A. "Differential
reward magnitude using a performance measure
and attitudinal stimli," at the Western
Psychological Association, Vancouver, June
1969.
Lamberth, J., "The effects of contirmal
responding on the contrast effect in
attraction research," at the Psychonamic
-A100-
Society, St. Louis, Novemer 1969.
Byrne, D., & Lamberth, J. "Reinforcement
theories and cognitive theories as
complementary approaches to the study of
attraction." Paper presented at a symposium
on attraction theory, Connecticut College,
October 1970.
Lamberth, J., "The effect of sequential
variables on performance using attitudinal
stimuli," at the Psychonamic Society, San
Antonio, November 1970.
Padd, W., & Lamberth, J. "Competence as a
variable in interpersonal attraction," at the
Southwestern Psychological Association,
Oklahoma City, April 1972.
Lamberth, J., & Dyck, D.G. "Conditioning
and attraction: A relationship," at the
Psychonamic Society, St. Louis, 1972.
Lamberth, J., & Padd, W. "Stimulus
generalization: Affect and attraction," at
the Psychonomic Society, St. Louis, 1973.
Lamberth, J., & Kirby, D.A. "The lawyers'
dilemma: Authoritarianism and jury
selection," at the Midwestern Psychological
Association, Chicago, May 1974.
Lamberth, J., Krieger, E.C., & Walbridge,
R.H. “Jury verdicts of authoritarians and
equalitarians in simulated criminal trials,"
at the Psychonomic Society, Denver, November
1975. ;
Lamberth, J., & Krieger, E. "Deliberation:
A crucial aspect of jury research," at the
— Society, St. Louis, November
1976.
Symposia and Invited Addresses
Lamberth, J. "Introductory psychology - A
student's perspective." Paper presented as
part of the symposium, "Teaching Introductory
Psychology: Issues, Innovations and
Perspectives," at the American Psychological
Association, Washington, D.C., 1976. (Other
participants in the symposium were George S.
Reynolds, Phillip G. Zimbardo, Richard A.
Kasschau, Kenneth MacCorquodale, Robert S.
Daniel, and Stanford C. Ericksen. )
Lamberth, J. (Chair) Mastery instructional
systems: "Innovations, problems, and
possibly some solutions," at the American
Psychological Association, San Francisco,
August 1977.
Lamberth, J. "Scientifically selecting
juries." Invited address at the Camden
County Bar Association, Cherry Hill, N.J.,
March, 1980. The Camden County Bar
Association, Cherry Hill, N.J., March 1980.
Lamberth, J. "Jury selection: A
psychological approach." Invited address at
-102-
the American Trial Lawyers Association--New
Jersey, Moorestown, NJ, Jan., 1981.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.