UNITED STATES of America, Plaintiff-Appellee, v. Randy K. GOMETZ, Defendant-Appellant.
No. 82-2460
United States Court of Appeals, Seventh Circuit
March 12, 1984
As Amended March 13, 1984
730 F.2d 475
Argued May 11, 1983. Reargued En Banc Jan. 19, 1984.
7. The Court finds that as a matter of law Agent Vanacora‘s activities in connection with this investigation do not violate our due process notions of fundamental fairness, nor do they shock our sense of justice. U.S. v. Russell, 41 [411] U.S. 423 [93 S.Ct. 1637, 36 L.Ed.2d 366] (1973).
8. The Court finds that all of the defendants were predisposed to commit the offense charged, that Agent Vanacora merely afforded defendants the opportunity to commit the offense, and that therefore the defense of entrapment fails as a matter of law. See generally: U.S. v. Guevara, 598 F.2d 1094 (7th Cir.1979).
9. The Court denies Defendant Browning‘s motion for arrest of judgment on grounds of alleged violations of the Speedy Trial Act for the reasons previously set forth in the Court‘s pre-trial disposition of this argument.
10. The Court finds that in addition to establishing the existence of an agreement between all defendants, the government has established numerous acts in the furtherance of this agreement in the form of meetings and the production of money to facilitate defendants’ conspiratorial objectives.
11. The Court finds that the government has proven beyond a reasonable doubt Defendant Browning‘s violation of
12. For the foregoing reasons, the Court finds that the defendants are guilty of the offenses charged in the indictment and accordingly enters a judgment of guilty.
IT IS SO ORDERED.
/s/ Nicholas J. Bua
Nicholas J. Bua
Judge, United States District Court
Dated: July 28, 1982.
Clifford Proud, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY and FLAUM, Circuit Judges.
POSNER, Circuit Judge.
Randy Gometz was convicted in the United States District Court for the Southern District of Illinois of assaulting a guard in the federal penitentiary at Marion, Illinois and was sentenced to three years in prison. His appeal presents an important question under the Jury Selection and Service Act of 1968,
Gometz‘s challenge to the selection of the jury that tried him (his challenge to the selection of the grand jury is identical and does not require separate consideration), duly made under
The
Gometz makes a different argument with respect to the racial composition of the qualified jury wheel. He conjectures that blacks are overrepresented among those who do not return their juror qualification forms and therefore are underrepresented on the qualified jury wheel, and he wants a hearing in the district court to explore the issue. No evidence supports his conjecture. True, one of the 30 veniremen from among whom Gometz‘s petit jury was picked was black, which is 3.33 percent, while the population of the Benton Division of the Southern District, from which the venire was drawn, is 3.90 percent black. But the discrepancy is too small to be significant. If there had been two blacks on the venire, blacks would have been overrepresented (6.67 percent), and you cannot get perfect representativeness by cutting an individual juror in two. Cf. United States v. Armstrong, 621 F.2d 951, 956 (9th Cir.1980).
Gometz also argues that a certain type of personality is bound to be underrepresented on the qualified jury wheel when some people do not return their juror qualification forms—namely the “anti-authoritarian” personality, who thumbs his nose at the law and is therefore likely to ignore the requirement (see
Still, a low rate of response to juror questionnaires could lead to the underrepresentation of a group that is entitled to be represented on the qualified jury wheel. Gometz alleges that in the period when the qualified jury wheel was created from which the juries that indicted and convicted him were drawn, 70 percent of those who
Gometz does not argue that the Sixth Amendment entitles a criminal defendant to demand that people be coerced to respond to a jury questionnaire if otherwise some group might be underrepresented on the jury that indicts or convicts him. He rests his case entirely on the Jury Selection and Service Act. And the issue under the Act is of course not whether it would be a good thing to follow up on persons who do not respond to a jury questionnaire, or to conduct an investigation of the effect of nonresponse on the representativeness of the jury wheel, or to place jury service on a basis of true conscription, but only whether the Act imposes any duty on the clerk or judges of the district court to follow up on the nonresponders. If it does not, no purpose would be served by the hearing that Gometz requests.
Before the passage of the Jury Selection and Service Act most federal districts used the “key man” system, whereby people believed to have extensive contacts in the community would suggest names of prospective jurors and the qualified jury wheel would be made up from those names. S.Rep. No. 891, 90th Cong., 1st Sess. 10, U.S.Code Cong. & Admin.News 1968, p. 1792 (1967). This system was believed to foster discrimination, and the Act substituted for it the principle of “random selection of juror names from the voter lists of the district or division in which court is held,” id. at 15, subject to qualifications not pertinent here, see
Therefore, although section 1861 makes it “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,” and a self-selected sample is not a random sample, it is apparent from the legislative history that the words “selected at random” were not intended literally and that self-screening was not anathematized. (The word “fair” before “cross section” may well have been intended to refer to the pragmatic compromise embodied in the use of voter lists as usually the only source of prospective jurors’ names.) Moreover, to the extent that section 1861 is more than merely declaratory of a federal criminal defendant‘s Sixth Amendment rights, it is a preamble to the Act‘s specific provisions on qualification, selection, and compensation of jurors; and both committee reports state: “If the voter lists are used and supplemented where necessary, and if the procedures outlined in the bill are otherwise rigorously followed, it is no departure from the standards of the legislation that the qualified jury wheel, the venire or array, or the jury itself, may not reflect a community cross section. The act ... does not require that at any stage beyond the initial source list the selection process shall produce groups that accurately mirror community makeup. Thus, no challenge lies on that basis.” S.Rep. No. 891, supra, at 17; H.R.Rep. No. 1076, 90th Cong., 2d Sess. 5,
Those procedures include no requirement that the district court clerk take measures to correct a low response rate, so long as it is high enough to generate enough names for the qualified jury wheel to enable staffing the required number of juries. The Act empowers—not requires—the clerk to pursue those who fail to return their juror qualification forms: “Any person who fails to return a completed juror qualification form as instructed may be summoned by the clerk or jury commission forthwith to appear before the clerk or jury commission to fill out a juror qualification form.”
Congress wanted to make it possible for all qualified persons to serve on juries, which is different from forcing all qualified persons to be available for jury service. To the criticism that using voter lists to create the pool from which jurors are selected discriminates against persons who are otherwise qualified to serve on a jury but who do not register and vote, the committees replied: “This is not unfair, however, because anyone with minimal qualifications—qualifications that are relevant to jury service—can cause his name to be placed on the lists simply by registering or voting.” H.R.Rep. No. 1076, supra, at 5; S.Rep. No. 891, supra, at 17, U.S.Code Cong. & Admin.News 1968, p. 1795. “Can“—not “must“; and filling out and returning a juror qualification form is no more difficult or burdensome than registering to vote. The statement we quoted earlier from the Senate Report, approving the “built-in screening element” of voter lists that consists in “eliminat[ing] those individuals who are ... insufficiently interested in the world about them,” suggests that Congress, rather than disapproving the element of nonrandomness implicit in any form of self-screening, wanted people who lacked a sense of civic obligation not to serve on federal juries, unless the number of “no shows” was so great that the qualified jury wheel could not be filled up. In that event, but only in that event, the clerks could be expected to use the coercive powers that the Act gave them. It is therefore not surprising that the criticisms that have been made of Congress‘s decision to base jury selection on lists of registered voters, see, e.g., Statutory Note, 4 St. Mary‘s L.J. 470, 475 (1972), sound a good deal like Gometz‘s criticisms of limiting jury selection to those persons who complete and return the juror qualification form. Self-screening may indeed reduce the representativeness of federal juries, but Congress crossed that Rubicon when it approved (with narrow exceptions not applicable here) the use of voter lists as the basic source for names of prospective jurors.
Even if we did not have these clues from the structure and legislative history of the Jury Selection and Service Act, we could not assume that it was through oversight that Congress did not command the district court clerks to operate federal jury selection as a true system of conscription. Most district court clerks lack the resources to issue thousands of summonses every year to persons who do not return juror qualification forms, and then to follow up on all the summonses that are ignored; nor should our overworked district judges be required to cite nonresponders for contempt. And anyone with experience as a trial judge knows that a person forced against his will to serve on a jury is apt to be an angry juror and that an angry juror is a bad juror. These considerations increase our reluctance to infer from the
The principal cases that Gometz cites, Broadway v. Culpepper, 439 F.2d 1253 (5th Cir.1971), and Berry v. Cooper, 577 F.2d 322 (5th Cir.1978), did not arise under the Jury Selection and Service Act, and involve the distinct question whether requiring that nonresponders be followed up is a suitable remedy for discrimination established by other evidence. See 439 F.2d at 1254-58; 577 F.2d at 324, 327-28. The controlling principle in these cases is, as stated in Berry, that “Once discrimination is recognized to exist, the District Court has ‘not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.‘” 577 F.2d at 324 (emphasis in original). If the clerk of the Southern District of Illinois had excluded black people from service on federal grand and petit juries in the past, a decree merely enjoining the exclusion and requiring him to send juror qualification forms to all registered voters, black or white, might not “eliminate the discriminatory effects of the past....” Since by assumption black people would have had little or no history of jury service in the district and would assume they were unwelcome as jurors, they could be expected to have a disproportionately low response rate. And since this would be an effect of the very discrimination that the lawsuit was intended to eliminate, requiring follow-up would be an appropriate part of the decree. The principle of Broadway and Berry has no application to this case: there is no evidence that blacks (or any other group) are underrepresented among juries in the Southern District of Illinois as a result of discrimination.
United States v. Santos, 588 F.2d 1300 (9th Cir.1979), supports our position; it held that the failure to pursue nonresponders did not violate the Act, because “§ 1864(a) clearly provides for discretionary follow-up,” id. at 1303 (emphasis added). The court did add, however, that “the clerk apparently believed that an 87% response to the questionnaires was sufficient. We do not disagree.” Id. And this could mean that the court thought that the clerk‘s failure to follow up was judicially reviewable under an abuse of discretion standard. (United States v. Carmichael, 685 F.2d 903, 912 (4th Cir.1982), which rejected a challenge to a 70 percent response rate, can be interpreted similarly, although the court‘s discussion is cryptic.) Whether the court in Santos did mean this is unclear—we have quoted its entire discussion of the question. But the language of section 1864(a) and the legislative history quoted earlier persuade us that Congress did not want to put court clerks under a duty to require that jury questionnaires be completed and returned. A power is not a duty; and courts rarely interfere with the exercise of prosecutorial discretion, as they would be doing, indirectly but effectively, if they exerted pressure on clerks to issue summonses to nonreturners.
The best case for Gometz, though not cited by him, is United States v. Kennedy, 548 F.2d 608, 610-12 (5th Cir.1977), which held that the clerk of the district court had substantially failed to comply with the statutory procedures by his “practice of filling gaps in the month‘s jury pool with volunteers from last month‘s jurors....” Id. at 610. See also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982) (per curiam); cf. Government of the Virgin Islands v. Rosado, 699 F.2d 121, 124 (3d Cir.1983). There is a sense in which those who return completed juror qualification forms to the clerk of the Southern District of Illinois are “volunteers,” since there is no follow-up of those who fail to respond. But whereas section 1866(f) provides a specific procedure for
Although we do not think the clerk‘s action is reviewable even for abuse of discretion, we also are not persuaded that the clerk did abuse his discretion in deciding that a 30 percent return rate (if indeed that was the return rate) was good enough in the circumstances. The mailing generated more than 4,000 names for the qualified jury wheel. This is a large sample of the eligible population, bearing in mind that it is the absolute size of a sample rather than its ratio to the population from which it is drawn that determines the sample‘s reliability. See Freedman, Pisani & Purves, Statistics 332-33 (1980). It is true that a sample, however large, that is limited to those who respond to a mail inquiry is not a random sample of the population surveyed, and, more important, that such a sample may be biased (statistically biased, not necessarily racially or ethnically or sexually biased)—may contain nonresponse bias. See id. at 304, 313, 346. But Congress was not concerned with anything so esoteric as nonresponse bias when it enacted the Jury Selection and Service Act. Against a background of widespread exclusion of the members of particular groups from jury service, see, e.g., S.Rep. No. 891, supra, at 11, Congress decided to broaden eligibility for jury service and to prevent discriminatory exclusions from it but did not attempt to solve the distinct problem of people who refuse to perform their civic duties, though it gave the clerks and judges power to coerce such people.
But it is argued that while some nonresponse may be tolerable, a 70 percent nonresponse rate is not; that we should strain to find somewhere in the Act a prohibition against the district court clerk‘s inaction in so extreme a case. As we have noted, however, it is not the relative but the absolute size of a sample that determines its reliability, and here the absolute size was great. This shows, moreover, that the principle for which Gometz contends cannot be limited to very low response rates. Suppose the rate had been not 30 but 95 percent; and suppose further, as is the case, that the population from which the sample was drawn—the population of the Benton Division of the Southern District—was less than 5 percent nonwhite. Then if nonresponders were heavily concentrated among nonwhites, as Gometz conjectures may be the case (though the racial composition of his petit jury venire does not support his conjecture), even a 95 percent response rate might produce substantial underrepresentation, or even complete nonrepresentation, of nonwhites. Yet extreme measures would be required to obtain a higher rate. Gometz‘s counsel said at argument that he would be content with our holding that any response rate above 90 percent is per se adequate under the Jury Selection and Service Act. But the logic of his position belies his concession. A 90 percent rule would be arbitrary. Legislatures are permitted to be arbitrary; courts are not. It is therefore apparent that the hearing Gometz has asked for would be just the first step toward far-reaching changes in the method of federal jury selection that Congress did not contemplate when it passed the Jury Selection and Service Act.
AFFIRMED.
CUDAHY, Circuit Judge, with whom CUMMINGS, Chief Judge, joins, concurring in part and dissenting in part.1
If the discrepancy alleged here were not striking, I would not propose to place limi-
The basic principle of the Jury Selection and Service Act is that, beginning with a list which represents a fair cross section of the community in the district or division where the court convenes, jury panels and grand and petit juries are to be developed by a process of random selection. So long as the basic source list is adequate and the prescribed procedure is thereafter faithfully pursued, there can be no complaint merely because the ultimate panel produced by random selection is somehow unrepresentative in result. The relevant legislative history states:
In short, the act attempts to achieve its cross sectional aim by insuring that the basic source list is adequate [as a community cross section] and that no procedure is employed that would impermissibly diminish the likelihood that a cross section will be attained.
H.R.Rep. No. 1076, 90th Cong.2d Sess. 5 [“House Report“] reprinted in 1968 U.S. CODE CONG. & AD.NEWS 1792, 1794 (emphasis supplied). The majority cites no authority for its conclusion that sending a single questionnaire which results in jury selection from a small minority of the community can under no circumstances be an impermissible deviation from the cross-sectional goal.
With respect to the procedure for selecting the jury panel from a properly constituted (cross-sectional) source list,
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.
(Emphasis supplied). The majority admits and it is quite indisputable that selection on a basis of who returns a questionnaire and who does not is not random selection. The issue then becomes how egregious a condition of nonresponse must exist before “substantial noncompliance” with the Jury Selection and Service Act has been shown. The majority reaches the rather extreme position that nonresponse can never become a problem and that the lower limit on response is reached only if there are not enough potential jurors to fill the required places on juries. There is no authority whatever for this conclusion.
The majority‘s discussion of whether the clerks of court must resort to compulsory process to secure responses to questionnaires (and the suggestion of protesting citizens being dragged to the courthouse) is irrelevant. It is unlikely that raising a return rate from 30% to some more acceptable level would require compulsion. A simple reminder would probably be adequate to secure a much better return. And, in any event, the powers and proce-
The government has not denied that only 30% of the questionnaires sent out have been returned.2 This is far below the level suggested in any reported case which has been brought to my attention. See, e.g., United States v. Santos, 588 F.2d 1300, 1303 (9th Cir.) (87% response), cert. denied, 441 U.S. 906, 99 S.Ct. 1994, 60 L.Ed.2d 374 (1979); United States v. Carmichael, 685 F.2d 903, 912 (4th Cir.1982) (70% response), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983); Broadway v. Culpepper, 439 F.2d 1253, 1257 (5th Cir.1971) (60% response). In the case before us almost three-quarters of the potential jurors have selected themselves out of the process. Gometz merely seeks an opportunity under these conditions to prove at a hearing that substantial nonrepresentativeness had resulted from this extreme degree of nonresponse. If nonrepresentativeness of the sample in some legally cognizable category is found to correlate positively with nonresponse, a nonresponse rate of 70% would almost certainly create a potential for substantial nonrepresentativeness of the persons selected for jury service. That is the simple proposition which Gometz has put, and I believe that he should have an opportunity to prove it if he can. His statistics may be incorrect and he may not be able to carry his burden of proof, but I do not believe that we can prejudge that matter here.
The majority seems to suggest that the choices before this court are either to require 100% response with recourse to every sanction available in order to achieve it or, as noted, to accept a minimal response sufficient only to fill up the requisite juries. The black and white approach of the majority opinion is quite misleading. Under
In United States v. Santos, supra, the court said that “the clerk apparently believed that an 87% response to the questionnaires was sufficient. We do not disagree.” Id. at 1303. This statement does not suggest to me that the Ninth Circuit would regard a response rate of 30% or less as judicially unreviewable—
Finally, appellants argue that the Plan requires a 95% return rate of grand jury questionnaires and because the return rate for this grand jury was less—approximately 70% average—the fair cross section requirement of the Act was not met. A low return rate of questionnaires without some evidence that such rate caused underrepresentation of some group, does not amount to a substantial violation of the Act. Without other evidence, unfair cross section simply cannot be inferred.
In the case before us, the return rate is not 70%; it is 30%. And, in any event, the Carmichael court does not suggest that even a 70% return is adequate; it merely notes the need for other evidence to establish the existence of an unfair cross section. Here, Gometz does not ask us to find that a 30% return is a per se violation of the Act. He simply seeks a hearing to demonstrate that this extremely low return rate has, in fact, resulted in unrepresentativeness.
In Broadway v. Culpepper, supra, the Fifth Circuit said:
In the posture of this record the showing that this voter list would produce a fair cross-section is itself inadequate. Out of 2,500 names only 550 were effectively available. And assuming, without deciding, that [all] of the 435 living and resident and the 500 returning but not signing the questionnaire were available, the fact remains that 40% could not even be used in the process of selective or random choosing because 1,000 questionnaires were returned as undeliverable. A list—this constitutes the “universe“—which is only 60% useable is hardly a source reflecting the community from which a fair cross-section may be obtained unless there is proof—lacking here—that the composition of the 40% remnant is comparable to the 60% available.
439 F.2d at 1257. As Judge Rosenn noted in the proposed panel opinion, statistically speaking, the situation here is even worse than the one in Broadway, supra. Plainly, we cannot simply assume that the responding 30% of the population is characteristically and attitudinally a fair cross-section of the population.
There are, as the majority points out, distinctions between Broadway and the instant case, but Broadway‘s statistical analysis seems quite unexceptionable and in point.
In principle, there is no difference between the case before us and United States v. Kennedy, 548 F.2d 608 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). In that case there was a deficiency in the number of jury prospects for a particular month and the jury clerk sought volunteers from the list of persons serving during an earlier month. Volunteering to serve as occurred in Kennedy, insofar as it affects randomness, is in principle no different than responding to a questionnaire. The Kennedy court said:
We need not speculate as to what sort of biases will be reflected in the jury chosen on the basis of its members’ willingness to depart from their daily business and serve as jurors. It is enough to recognize that a substantial variable, not contemplated by the Act‘s few, narrow categories of qualifications, exemptions, and excuses, has confounded the selection process.
548 F.2d at 612 (footnote omitted). In the case at bar, the 30% of the jury list who responded to questionnaires are, in effect, volunteers. The 70% who failed to respond are, in effect, non-volunteers. Gometz merely seeks an opportunity to show that this highly non-random process has resulted in substantial nonrepresentativeness of the jury wheel.
Even if the language of the Jury Selection and Service Act were susceptible of two interpretations, mine and the interpretation the majority gives it (that Congress was indifferent to randomness in the opera-
The majority‘s references to Gometz’ Sixth Amendment rights are mystifying and lead away from the central problem of Congressional intent. This court has acknowledged that the Act may require a more perfect cross section than the constitution. See United States v. Dellinger, 472 F.2d 340, 365 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1974). Whatever the relationship between the Sixth Amendment and the Act, Gometz has not made a Sixth Amendment claim and the majority‘s discussion of the amendment serves merely to confuse.3 Certainly the majority does not believe that Congress lacks power to prescribe jury selection standards more rigorous than the minimum intended by the framers.
In summary, I do not think that any level of nonresponse constitutes a per se violation of the Act, but a 70% nonresponse coupled with a showing of substantial unrepresentativeness of the jury panel would so far depart from the principles of the Jury Selection and Service Act that a violation would be shown. The only thing that is before us now is whether a hearing should be provided in which the defendant would have the burden of showing the second prong of the requirements for a violation—substantial unrepresentativeness of the resulting panel in a cognizable category. This seems to me to be a minimalist view of our obligations to enforce the Jury Selection and Service Act.
For these reasons, I respectfully dissent with respect to the claim based on nonresponse to questionnaires.