United States v. Guy Arthur Cates, Jr.

America, UNITED STATES Appellant,

Guy Jr., CATES, Defendant- Arthur Appellee.

No. 73-1261. Appeals,

United States Court First Circuit.

Argued Nov. 1973.

Decided Jan. Mills, Atty., Peter S. U. whom Cuddy,

Kevin Atty., M. Asst. U. S. on appellant. brief, for Zendzian, Bangor, Paul Maine, F. appointment Court, appellee. ALDRICH, Before McENTEE and CAMPBELL, Judges. CAMPBELL, community LEVIN H. cross-section of the in that Judge. Division.” court, effect, The was indicted1 a federal in Cates construed the language grand impanelled statutory jury in and drawn ex- “wherein clusively convenes” to mean trial from the Division of “wherein the Southern interpreta- court The indictment Under that the District convenes”. Maine. tion, grand jurors specified petit the criminal oc- as well as would violation have to come curred in the Northern Division of from a fair section cross arraignment of either District of Maine. After entire district or else Division, in the Northern Cates moved division wherein the trial court con- of al- to dismiss the indictment because vened. court seems also to have as- assembling leged non-compliance required sumed in the the Act the trial grand jury of the con- with the laws and convene to not in the stitution of the United States. Cates as- district2 but also in the division where- that, in serted because of intentional and the offense occurred. the in- Since systematic against exclusion of Northern Divi- dictment handed down Cates vio- residents, grand jurors sion formulae, were lated both it was dismissed. selected from a fair cross of the section interpreta While the court’s community either in the division where- possible one, tion awas is not in the court convened or in the district reading comporting statutory court, hearing, as a whole. after language. pur Courts convene for the dismissed the indictment. pose grand impanelling juries as well conducting The decision below on the multi-judge rests court’s dis trials. interpretation tricts, judge grand of the Declaration of Pol- jury to whom the icy in reports judge and Service often different from the Act of 1968, 28 U.S.C. before whom the § trial of returned in policy “It dictment is held. is the hold that the stat We litigants ute means no that all in en- more than that when the Federal courts grand impanel jury, by jury convenes to titled to trial shall have grand right grand jurors petit juries to and select- shall drawn surrounding division, the district or ed at and random from a fair cross section that when community later the trial court convenes or di- n — perhaps vision wherein in a different the court convenes” division —the petit jurors must come either from the interpretation and on its of the Declara- district or from the wherein the division plan, Policy adopted pur- tion of in the court is then convened. suant to 28 for the U.S.C. ran- § grand petit jurors dom selection of and statutory There is no hint in the his- service tory two divi- sions, of the District of U.S.C. provide tended to do im- more than Maine: proved grand judicial machinery so that policy petit jurors “It is the and this Court that all at would be selected litigants by jury objective qualifica- entitled to random the use of representative tion each Division of this District shall criteria to ensure a right grand petit ju- have the cross section of the district or division petit jury ries selected at random from which a fair sits.3 induction, 1. For failure to submit 3. See viola- Judicial Conference the United App. States, Report Op tion of 50 U.S.C. § of the Committee on the Jury System, eration of the 42 F.R.D. 353 2. See U.S.Const. Amend. “In all VI: (1967) ; Cong. p. & Ad.News prosecutions, enjoy accused shall 1792; Blackmar, 1 E. Devitt & C. Federal right speedy public trial, by an im- (2d 2.02 ed. Practice Instructions partial jury of the State district wherein committed, crime shall been distributing Congress sought and of the evil division the indict eliminate among primarily racial, by discrimination, which the ments committed,” randomly se- were offenses that names Salinger approved jurors prospective placed in had been a which lected Loisel, 224, 237, wheel Moore, randomly (1924). 68 989 8 Fed then J. be drawn. 28 L.Ed. U.S.C. §§ (2d 18.01, eral v. Practice at 18-2 ed. 1863(b)(3), 1864. See United States ¶[ 1973). (D.Del. Matthews, very At the F.Supp. least this indicates 350 1103 1972). judge Jury that before the the in instant Selection district plainly case, to convene was understood member of the himself a Judicial grand jury twice: once drafted when was Conference which impanelled therefore, and, very and once the trial oc famil- when Act background, curred. 1966 Rule was iar with that 18 amended stated principal objective so a trial in the dis- must occur district was to eliminate in the offense was crimination and that histo- which committed but longer ry need no would be the division. In indicate “that there was no specific giv- stead, place court shall fix the “[t]he discussion or consideration regard problem trial en within the district due to this we are faced with with right to the convenience of I am confident the defendant and of that.” now. the witnesses.” The amendment was de grand juries requirement A venue for signed hardship to avoid administrative which return indictments within a state delay disposition and undue in the likely divided into most particularly cases, criminal districts not discussed because it would irrele- Maine, only such as in which there is a guaranteeing purpose vant to ran- judge. Moore, district court 8 su dom wherever pra at 18-5. The amendment makes it Selecting jurors court convenes. where quite fixing place clear happens the court to convene matter is a disregard may trial the divi quite apart deciding from it whether sion where the crime was committed. may separate places convene at for change brings the venue rule within dictment and for trial. required the minimum the Sixth interpreta The district court’s Amendment.4 particu tion of 28 U.S.C. 1861 seems larly questionable 18, as it would mean that may Rule Under trials now Congress practical was, effect, alter had the same division where the ing enlarging down, federal criminal indictment was handed incorpo venue statute, 18 3232 or not be the division where the of rating occurred, is no Fed.R.Crim.P. 18. There fense or the indictment specific requirement venue for trial each or occur different both grand juries. 1966, Until re Rule 18 divisions. The Committee Note to the quired prosecutions (trials) held Amendment does not reflect desire uniformity; grand jury within for the division where the offense indictments are, fact, had been committed. The Committee not mentioned at all in the Note stated that was intended to sanc Note to the revised at 18 —5-6. rule. Id. prevailing tion the continuance of the If the Selection Act means that grand impaneling only “of court convenes once and that con vening the entire at a session in some must be where the offense was right (1898) ; 4. There is no constitutional to trial L.Ed. 723 Franklin v. United particular States, (5th 1967), within See division. United 384 F.2d 377 cert. Cir. Anderson, 699, 1048, 328 v. U.S. 66 S.Ct. denied 390 U.S. 88 19 S.Ct. L.Ed. (1946) ; (1968) ; McNealy v. Johnston, 90 L.Ed. 1529 Barrett 2d 1147 States, (9th requiring erwise than as that when committed, conflicted with it would have in a division for a newly venue stat- convenes amended federal sitting grand grand ju- jury, if ute. Even randomly (and in re- indict- must be other rors that both trial means spects appropriately) from selected in the same division'ir- ment occur must occurred, is no respective division. the offense of where There by they substantially must come the same division amend Rule 18 it would tying place take or place where is later to of indictment the trial to the de- where offense was committed. rather than convenience witnesses, Since Cates was indicted fendant and jury appropriately legislative purpose apparent selected advance no Southern indictment does policy the Act. Division his social associated not contravene the Act. grand jurors re who That Our has so far to discussion related drawn were all turned indictment Cates’ statute, 28 U.S.C. 1861. than district- from one division rather wording Policy of of the Declaration course, prohibited is, not wide plan the Maine is more Its troublesome. guarantees cross a random Act which language assuming can read be as or divi in either the section “district litigants may some “entitled” to trial be Although [Emphasis added]. sion”. particular in a division of Maine and prevail supra, Salinger, that the noted petit that both the and ing practice draw at the time was to must be from that division. drawn throughout grand jurors the dis from shown, Jury However, as have we holding division, trict in one to sit 18, Rule and constitu- have do not indictments no tion afforded a criminal defendant oc same where offense division entitlement, any specific such way nor—in practice. A not this curred does rest on plan In ab- itself.5 —does indicted for an offense defendant sence, plan within or else- either grand jurors divi one drawn all from where, delineating of some such source approved practice. See Unit sion is an entitlement, an passing we to read decline (5th Grayson, ed F.2d 1073 v. 416 to reference “entitlement” as 1059, 1969), cert. denied 396 U.S. enunciating require- new local venue (1970); 754, 24 90 L.Ed.2d 753 S.Ct. simply ments. The is most sentence 974, (10th Zerbst, Marvel Cir.), 83 977 poli- read as an effort to the same tailor 311, 518, 57 aff’d 299 U.S. S.Ct. cy language found 1861 to 28 U.S.C. § (1936). Contra, United 81 L.Ed. 382 being plan which, dis- a local rather than (W.D.La. Beaugh, F.2d 378 States v. 2 trict-wide, upon If based divisions. is 1924). Likewise, petit jury a intended, more was “it but reasonable constitutionally di one drawn would, that that have been ex- intention See vision and the whole district. pressed apt . .” Salin- terms . Ruthenberg States, U.S. v. United 245 ger, supra, at at 44 S.Ct. (1918). 38 62 L.Ed. 414 general Certainly 524. litigants reference to light legislative purpose, In of the “entitled” to within a di- history, specifying statutory are Rule we vision and falls far short committing oth- of- to construe 28 a criminal defendant an unable U.S.C. § question particular 5. reach the whether to their needs.” We do not Cong. p. in- authorizes itself U.S.Code & Ad.News corporation legislative express history re- venue a shows concern for plan. quirements part transportation convenience, local as of a See local such as 1863(a). needs, juror exclusively “a Plans are to afford attendance selec- U.S.C. significant flexibility lo- measure of so that tion. adjust calities administration individuals, I nei entitled would like add that is to division fense within ther then member of the Judicial therein.® as to indictment Conference, approver nor an as language declining to construe the thought Plan, Maine I did establishing venue plan a local was an intent affect there venue. rule, intimate that we do not thought except objective I of no authority establish is without selection, fairness randomness dividing up „practices cases be- rules geography played and even there rela Indeed, of its because tween divisions. tively part. minor in Massachu Thus authority so, to do we undoubted setts, district, which is with no normally to the district court’s defer divisions, permitted, the Act important terpretation it not were and the took Massachusetts Plan advan distinguish those matters between tage of, geographical parameters. plan promulgated formally part are of a 1863(b)(3), 1869(e). Accord §§ those under Selection Act and charged ingly, having a defendant su- which are in exercise of the court’s (cid:127) Springfield, committed an offense pervisory powers. Breaches could by ju be both indicted tried litigants rights upon former confer empanelled Boston, ries none of whose flowing beyond de- those occasional members resided west of Worcester partures administra- from a court’s own County, though might, even 1867(a). practices. tive 28 U.S.C. § Cf. unwilling had dictated, convenience have We District chosen to are saddle unnecessarily conse- Springfield, of Maine with the sit in in which case a west reading quences requirement such jury ern domiciled sat. plan.6 into its Apart any requirement Act a Maine defendant could be tried in supervisory exercise of its the division other than where his of power, the district allocate 18; fense cases divisions. It custom occurred. between F.R.Crim.P. United arily trial of fix the indictment O’Clair, Cir., 1971, States v. 451 F.2d Division in that Divi Northern offenses 486 n. cert. denied 409 U.S. plan, Moreover, modify sion. 252; 93 S.Ct. 34 L.Ed.2d United 1863(a), see 28 ensure a Florence, Cir., 1972, States v. 456 F.2d broader or to base avoid (Selective Service). It would be systematic Di non-use of the Northern Act, plainly permits ironic if that pro vision for indictments —such as the Massachusetts aforemen result viding for district-wide tioned, though even Massachusetts has grand jurors. merely hold that nei We judges, six district lead to a re should ther 28 1861 nor Maine U.S.C. § quirement Maine district plan declaring are read crimi as judge jump back and forth one di nal venue which renders simply vision to other Cates’ indictment invalid. because Maine pur divided into two Reversed. poses previous way of convenience in no ALDRICH, BAILEY Senior ly thought connected with selection. Judge (concurring). language, I do read either of the Plan, requiring entirely Maine I am content with the court’s opinion, but since it makes reference such a result. years expressed

6. For five last the United States own Attorney operating, apparently qualms by stating (with respect has been mat- protest, issue) plan “perhaps without under a ter non-restrictive terpretation, recognized foolishly” adopted. we Cabral, 715, 718, (1st n. 2

Case Details

Case Name: United States v. Guy Arthur Cates, Jr.

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 8, 1974

Citation: 485 F.2d 26

Docket Number: 73-1261

Court Abbreviation: 1st Cir.