UNITED STATES of America, Appellee, v. Harold LYNCH, Defendant, Appellant.
No. 85-1599.
United States Court of Appeals, First Circuit.
June 4, 1986
792 F.2d 269
Argued April 7, 1986.
Scannell argues that even if section 1447(d) applies to this case, review by mandamus should be permitted because the case fits within the very narrow exception to the rule against review of remand orders set forth in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). In that case, the district court ordered remand solely because its docket was crowded, despite the fact that the removal itself was entirely proper and the jurisdiction of the court was unquestioned. The Supreme Court held that under these extreme circumstances, an appellate court had the power “to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal.” Id. at 352, 96 S.Ct. at 593. Thus, if the district court does not even consider the grounds for remand mandated by section 1447(c)-i.e., that “the case was removed improvidently and without jurisdiction“-review by petition for mandamus may be appropriate. The Court reiterated, however, that where the district court in fact invokes the factors set forth in section 1447(c) its remand order is unreviewable by appeal, by mandamus, or otherwise, “whether or not that order might be deemed erroneous by an appellate court.” Id. at 351, 96 S.Ct. at 593. See also Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977).
In the present case, the district court clearly did not disregard the statutory directives. Under the Federal Drivers Act, if an employee was not acting within the scope of his employment at the time of the accident, the claim against him is ineligible for removal and is one over which the district court is “without jurisdiction.”
Even assuming arguendo that the district court‘s conclusion was somehow in error, we are without power to review its order. Since the district court invoked the statutorily defined factors, the narrow Thermtron exception is not applicable, and we must follow the plain language of section 1447(d) that the district court‘s remand order is “not reviewable on appeal or otherwise.” We are without jurisdiction to review the order of the district court, whether on appeal or on petition for mandamus.
The appeal is dismissed and, if treated as a petition for writ of mandamus, is denied.
Thomas E. Dwyer, Jr. with whom Maurice T. Cunningham and Dwyer & Murray, Boston, Mass., were on brief, for defendant, appellant.
William C. Bryson, Dept. of Justice, Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.
Harold Lynch, the former president of Local 33 of the United Union of Roofers, Waterproofers and Allied Workers (“the Union“), appeals from his convictions in the district court of the misdemeanor offense of using violence and threats of violence to
In the summer of 1983, two Union members, Barry Finn and Thomas Piscatelli, violated Union rules by working for a non-union roofing company. Appellant Lynch, the president of the Union, filed charges with the Union against the two men. Piscatelli then filed a countercharge against Lynch, claiming that Lynch had been “grossly inefficient in the performance of his duties,” and that Piscatelli had “suffered reprisals as a result of [his] involvement in both union elections and union meetings.”
On September 7, 1983, Finn and Piscatelli went to the Union hall to testify concerning Lynch‘s charges against them and Piscatelli‘s countercharge against Lynch. While they were waiting for the proceedings to begin, Lynch made two threatening comments to them. Both Finn and Piscatelli then gave testimony on Lynch‘s charges, and returned to the waiting room. After the hearing on Lynch‘s charges ended, Piscatelli was summoned back into the hearing room to testify concerning his charges against Lynch. Lynch then approached Finn, who was now alone in the waiting room, and punched him in the face, breaking Finn‘s nose. Finn got up from the floor, called the police, and went into the hearing room to describe what had just occurred. At that point, Piscatelli, afraid he and Finn were going to “get our heads beat in,” stopped presenting his charges, and waited for the police to arrive so they could leave safely. While they waited, Lynch made another threatening comment to Piscatelli.
Lynch was convicted of two counts of using violence and threats of violence to prevent Union members from exercising their rights within the Union.
Lynch‘s first argument on appeal fails as a result of our recent en banc decision in Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985) (en banc). In Barber we held that young adults were not a “cognizable group” under the standard set forth by the Supreme Court in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), such that a showing of mere statistical underrepresentation, without evidence of actual discriminatory or exclusionary practices, would indicate a prima facie violation of the sixth amendment fair cross-section requirement.
Lynch maintains that our Barber decision does not apply to this case because he, unlike the defendant in Barber, presented evidence on the cognizability issue. The evidence presented by Lynch, based on the record in an earlier case, consisted of expert testimony that young adults aged 18 to 34 constitute a distinctive group because they grew up in a period characterized by the “nuclear age,” the “television era,” the “suburbanization of America,” and the “question[ing of] authority” by young people. The expert added that sociologists and other social scientists often consider persons between 18 and 34 to be in the “young” age category, and that advertisers and the marketing industry regard that group as the “youth culture” market.
None of this evidence, however, undercuts our holding in Barber that persons 18 to 34 do not sufficiently blend into one “cognizable group” so as to permit the making of a prima facie case of juror discrimination simply by showing that the venire underrepresents persons falling within the broad spectrum of those ages. To be sure, people change in many ways as they grow older, and so, too, do conditions in our nation, and in the world, change over time. But we concluded in Barber that selecting out, more or less arbitrarily, people between certain ages, and calling them “young adults” resulted in too amorphous and fluid a grouping to constitute a “cognizable group” as that term has been used for purposes of establishing prima facie juror discrimination through statistics alone.2
We emphasized in Barber the lack of internal coherence within such a purported group:
[W]hat is the evidence that the attitudes and thinking of, say, 30 year olds have more in common with 18 year olds than they do with 40 year olds, or for that matter, going to the other end of the scale, that 18 year olds have more in common with 28 year olds than with 16 year olds? How do we know there should not be two groups, 18 to 28 and 28 to 35, or three, or four groups encompassing other boundaries? ... Is not a “distinctive” group, by definition, one whose membership is reasonably set apart from others by clear lines of demarcation?
Barber, 772 F.2d at 998. The evidence presented by Lynch‘s expert does little to address this issue, even though it is central to the question of the cognizability of a group composed of everyone between certain arbitrarily selected ages. Nor does Lynch‘s evidence address other aspects of our reasoning in Barber. Because Lynch failed to show the exclusion of a cognizable group, we need not address his figures regarding the purported underrepresen-
Lynch next contends that the evidence was insufficient to support the verdicts against him. This claim can only be characterized as frivolous. A jury could easily have found that Lynch made threatening comments to Finn and Piscatelli prior to their testimony at the Union hearings, and that the purpose of the comments was to intimidate them, thereby preventing them from exercising their Union rights. This alone would have been sufficient to support Lynch‘s convictions on both counts.
Further, we have no doubt that a jury could also find the punch to Finn, standing by itself, enough to support both convictions. The punch actually succeeded in stopping Piscatelli from presenting his charges against Lynch, as Piscatelli went no further after Finn staggered into the hearing room. And, while Finn had already completed his testimony at the time he was assaulted, there is no indication that Lynch knew this was the case. Even if Lynch did know that Finn had no further plans to testify, however, it is clear that Lynch could still have been convicted of trying to intimidate Finn to keep him from exercising his rights. As the Eighth Circuit has stated,
The exercise of a right may be frustrated as much by retaliation as by prevention or interruption. It is obvious that acts of violence immediately following or otherwise directly relating to an activity stultify the ensuing repetition of that activity by an intimidated victim and by others as well.
United States v. Kelley, 545 F.2d 619, 622 (8th Cir. 1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1555, 51 L.Ed.2d 777 (1977).
Affirmed.
BOWNES, Circuit Judge (concurring).
I concur in the result. I accept Barber v. Ponte as binding, but expressly disassociate myself from perpetuating the myth that youth does not exist for jury purposes.