Lead Opinion
This appeal challenges the selection of federal grand jury foremen by district judges in the Southern District of Florida between 1974 and 1978. Appellant argues that his indictment should have been dismissed because women and blacks were unconstitutionally excluded from serving as foremen. His claim is based on two separate grounds. First, he contends that the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, et seq., require that grand jury foremen represent a fair cross section of the community, just as this representation is required in grand and petit jury venires. Second, he argues that the equal protection component of the Fifth Amendment due process clause entitles a criminal defendant to be tried on an indictment which is returned from a grand jury untainted by invidious discrimi
The relevant facts concerning appellant are brief. In January of 1979, a federal grand jury in Miami returned a three count indictment which charged appellant and two others with various drug related offenses. Appellant subsequently filed a pretrial motion to dismiss the indictment alleging race and sex discrimination in the selection of grand jury foremen. The government and appellant then entered into a stipulation that permitted the parties to adopt the record of United States v. Jenison, another pending case which raised the same pretrial issue. Appellant further agreed to be bound by the decision in Jenison for trial and appellate purposes of his case. On December 18, 1979, the Jenison motion to dismiss was denied, United States v. Jenison,
I
United States v. Jenison
The trial judge in Jenison made the following relevant findings of fact:
5. Blacks comprise sixteen and six tenths percent (16.6%) of the citizens of the Southern District of Florida aged 18 to 69.
6. Fifty grand juries were empaneled in the Southern District of Florida during the period from 1974 to 1978. One black was chosen to serve as grand jury foreperson in the Southern District of Florida from 1974 to 1978.
7. Women comprise fifty-three percent (53%) of the citizens of the Southern District of Florida aged 18 to 69.
8. Of the fifty grand juries empaneled in the Southern District of Florida during the period from 1974 to 1978, five women were selected to serve as grand jury forepersons.
"11. I find that, with the exception of Judge Roettger’s practice of alternating between male and female forepersons, the foreperson selection practices of the judges who participated in the questioned empanelments are based on neutral selection criteria and are not prejudicially motivated. There was no purposeful discrimination of the selection of forepersons for the fifty grand juries empaneled in the Southern District from 1974 to 1978.
Record at 663-64. None of these findings are contested.
II
Issues
Appellant presents two issues in this appeal. First, he urges that the trial judge erred in finding “fair cross section” protections are inapplicable to the office of grand jury foreman. Second, he argues that, as a. matter of law, the rebuttal testimony offered by the government was insufficient under Fifth Amendment standards to defeat a prima facie case of discrimination. The government also challenges two rulings of the trial court. It contends that the office of federal grand jury foreman is of no constitutional or statutory significance, and therefore, appellant cannot seek relief through the protections of the Fifth Amendment. In the alternative, it claims that the trial court erred in concluding that the defendant established a prima facie case of discrimination under the appropriate analysis. Of course, as a final alternative, it argues that the trial court should be affirmed on all issues. We note that these issues have never been raised before a circuit court in the context of a federal grand jury foreman, although several district courts have addressed similar claims.
Ill
Fair Cross Section Rights
The Sixth Amendment to the Constitution grants every criminal defendant “the right to a speedy and public trial, by an impartial jury.” The Supreme Court has interpreted this right to mean, among other things, that a petit jury venire must represent a fair cross section of its community. Taylor v. Louisiana,
New courts have addressed this question.
*1385 The purpose of a jury is to guard against the exercise of arbitrary power— to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinct groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.
IV
Equai Protection
Criminal defendants in state courts may challenge discriminatory selections of grand and petit juries through the equal protection clause of the Fourteenth Amendment. Alexander v. Louisiana,
Before addressing the merits of appellant’s case, we must first discuss a preliminary question of standing. Appellant is a male of hispanic descent who claims a denial of equal protection because blacks and women have been excluded from serving as grand jury foremen. Conflicting language in several recent Supreme Court cases has clouded his right to assert this claim. In Peters v. Kiff,
We must also address a second preliminary issue. The government argues that the position of federal grand jury foreman is constitutionally insignificant, and accordingly, discrimination in their selection does not require dismissal of subsequent indictments. In Rose v. Mitchell, the Supreme Court assumed without deciding that “discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire jury venire.”
With these questions resolved, we return to a review of the holding below. The trial judge in Jenison found that a prima facie ease of discrimination was established by the defendant. United States v. Jenison,
The final issue we must address is whether the government sufficiently rebutted the presumption of invidious discrimination. We conclude that it did. Specific criteria for what constitutes a rebuttal case have never been developed, however several guidelines are well known. The central focus of a rebuttal case must be on a “showing that racially neutral selection procedures have produced the disparity.” Alexander v. Louisiana,
The government’s rebuttal case below consisted entirely of testimony from eight district judges involved in the foreman selection process for the years in question. Each judge testified that he acted independently of the other judges in choosing a grand jury foreman, although each employed similar guidelines in making a selection. These guidelines generally consisted of four separate factors: (1) occupation and work history; (2) leadership and management experiences; (3) length of time in the community; and (4) attentiveness during the jury empanelment.
AFFIRMED.
Notes
. The defendant in Jenison did not appeal the denial of his motion to dismiss.
. Unless stated otherwise, any reference to a record in this opinion is a reference to the record of Jenison and not the record of appellant’s case.
. The motion to dismiss in Jenison originally included latins as a class discriminated against in the grand jury foreman selections. The trial judge found, however, that the statistics used to establish this part of the defendant’s case were insufficient to permit the reliable calculation of disparity needed for a finding of discrimination. Record at 663. "Since this element of the case was not essential for the success of either party, this finding has not been raised as an issue on appeal.
. See, e.g., United States v. Holman,
. If applicable, the fair cross section analysis employs a prima facie test which is virtually identical to the equal protection prima facie test for establishing a presumption of discrimination. Compare Duren v. Missouri,
. With the exception of United States v. Holman,
. In addition to the constitutional proscriptions against discrimination in the selection of grand jury members, federal law also proscribes the exclusion of distinct classes from grand and petit jury service. 28 U.S.C. § 1862; 18 U.S.C. § 243.
. Rose v. Mitchell dealt with black defendants alleging discrimination against blacks in the Tennessee grand jury system. Therefore, the question of whether a white could assert the same claim was not directly addressed. Nonetheless, two district courts faced with this same issue have denied standing to defendants because of the language from Castaneda v. Partida quoted in Rose v. Mitchell. See United States v. Cross,
. This circuit allowed standing for a white male to challenge Florida’s use of the death penalty as discriminatory against blacks. Spinkellink v. Wainwright,
. We note that one judge inexplicably alternated between choosing a man and a woman, but he otherwise used this criteria for choosing which man or which woman.
. Rule 6(c) of the Federal Rules of Criminal Procedure provides: “The foreman shall have power to administer oaths and affirmations and shall sign all indictments. He or another juror designated by him .shall keep a record of the number of jurors concurring in the finding of
Concurrence Opinion
specially concurring:
I concur, but write separately to express my opinion with regard to one issue. In Rose v. Mitchell the Supreme Court assumed without deciding that “discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire.”
In Rose v. Mitchell the Supreme Court addressed the selection of grand jury foremen in Tennessee state courts. The majority opinion discussed the long standing precedent of requiring the dismissal of a criminal indictment if discrimination has occurred in the selection of the grand jury. This body of law, however, was not developed to correct actual harm or prejudice to the indicted defendant. The fact that a defendant received a completely fair and impartial petit jury trial does not abate his right to indictment by a properly constituted grand jury.
I believe, however, that this policy is necessarily limited in application. For example, if discrimination is found in the hiring of courtroom deputies, clerks, or the admin
My position is not inconsistent with Rose v. Mitchell. A grand jury foreman in the Tennessee state court system is chosen by a judge from the entire population for a two year term of office. He or she is then added to the randomly selected grand jury panel as the thirteenth member. Thus, discrimination in the selection of Tennessee grand jury foremen infiltrates discrimination into the selection of the entire grand jury panel. This is not the case in the federal system below where the grand jury panel was randomly and properly selected and only then a foreman was chosen from that group. Moreover, a Tennessee grand jury foreman is expected to assist the district attorney in investigating criminal activity and may order the issuance of subpoenas. See Rose v. Mitchell,
. Indeed, the only reason the appellant in this case did not plead guilty at trial was to preserve this issue for appeal. Record of United States v. Mario Perez-Hernandez, Vol. 2 at 1-10.
