Hobby v. United States

468 U.S. 339, 104 S. Ct. 3093, 82 L. Ed. 2d 260, 1984 U.S. LEXIS 138, 52 U.S.L.W. 5001

• Court: Supreme Court of the United States
• Decided: July 2, 1984
• Docket: 82-2140
• Status: Published

Opinions

Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve a conflict among the Circuits as to whether discrimination in the selection of federal grand jury foremen, resulting in the underrepresentation of Negroes and women in that position, requires reversal of the conviction of a white male defendant and dismissal of the indictment against him.

I

Petitioner, a white male, was indicted on one count of conspiring to defraud the United States of funds appropriated under the Comprehensive Employment and Training Act of 1973, 29 U. S. C. §801 et seq. (CETA), in violation of 18 U. S. C. §§371 and 665, and three counts of fraudulently obtaining and misapplying CETA grant funds, in violation of 18 U. S. C. § 665. Prior to trial in the United States District Court for the Eastern District of North Carolina, petitioner moved for dismissal of the indictment against him “due to improper selection of grand jurors.” App. 32. In particular, he alleged that the grand jury selection plan “exclude[d] citizens from service ... on account of race, color, economic status and occupation, in violation of . . . the Fifth and Sixth Amendments of the United States Constitution.” Id., at 33.

At an evidentiary hearing on the motion to dismiss, petitioner introduced the testimony of a statistical social science consultant regarding the characteristics of the persons selected as grand jury foremen or deputy foremen in the Eastern District of North Carolina between 1974 and 1981. The expert witness reported that none of the 15 grand juries empaneled during this 7-year period had had a Negro or female foreman. Of the 15 deputies appointed during this interval, so this expert testified, 3 had been Negroes and 6 had been women. From these data the expert witness concluded that Negroes and women were underrepresented among grand jury foremen and deputy foremen serving in the Eastern District of North Carolina. Rejecting petitioner’s claim of discrimination in the selection process, the District Court denied petitioner’s motion to dismiss the indictment, and petitioner was convicted after a jury trial.

The United States Court of Appeals for the Fourth Circuit affirmed. 702 F. 2d 466 (1983). Reasoning that the foreman of a federal grand jury performs a strictly ministerial function, the Court .of Appeals viewed the foreman’s impact upon the justice system and the rights of criminal defendants as minimal and incidental at most. In response to petitioner’s contention that appointment as foreman may enlarge an individual’s capacity to influence the other grand jurors, the Court of Appeals concluded that this likelihood was too vague and speculative to warrant dismissals of indictments and reversals of convictions.

The Court of Appeals recognized that in Rose v. Mitchell, 443 U. S. 545, 551-552, n. 4 (1979), this Court assumed without deciding that discrimination in the selection of the foreman of a state grand jury would require that a subsequent conviction be set aside. The Court of Appeals noted, however, that the function of the grand jury foreman in the federal system differs substantially from the role of the grand jury foreman in the states. The court concluded that the rights of defendants are fully protected by assuring that the composition of the federal grand jury as a whole is not the product of discriminatory selection.

We granted certiorari to resolve a conflict among the Circuits on this issue,¹ 464 U. S. 1017 (1983), and we affirm.

II

A

It is well settled, of course, that purposeful discrimination against Negroes or women in the selection of federal grand jury foremen is forbidden by the Fifth Amendment to the Constitution. The question presented here, however, is the narrow one of the appropriate remedy for such a violation. It is only the narrow question of the remedy that we consider. No factual evidence was presented to the District Court on the issue of discrimination; instead, petitioner relied upon inferences to be drawn from the failure to select a woman or Negro as foreman of the grand jury for the seven years studied. As did the Court of Appeals, we proceed on the assumption that discrimination occurred in order to treat the constitutional issue presented by the motion to dismiss.

Invoking the Due Process Clause of the Fifth Amendment, petitioner argues that discrimination in the selection of grand jury foremen requires the reversal of his conviction and dismissal of the indictment against him. In Peters v. Kiff, 407 U. S. 493 (1972), the opinion announcing the judgment discussed the due process concerns implicated by racial discrimination in the composition of grand and petit juries as a whole. Emphasizing the defendant’s due process right to be fairly tried by a competent and impartial tribunal, see In re Murchison, 349 U. S. 133, 136 (1955), the opinion reasoned that unconstitutionally discriminatory jury selection procedures create the appearance of institutional bias, because they “cast doubt on the integrity of the whole judicial process.” 407 U. S., at 502. Moreover, the opinion perceived an important societal value in assuring diversity of representation on grand and petit juries:

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” Id., at 503-504 (footnote omitted).²

Discrimination in the selection of grand jury foremen — as distinguished from discrimination in the selection of the grand jury itself — does not in any sense threaten the interests of the defendant protected by the Due Process Clause. Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute for the convenience of the court. See 28 U. S. C. § 420 (1934 ed.); Rev. Stat. §809 (1878). Today, authority for the appointment of a grand jury foreman is found in Federal Rule of Criminal Procedure 6(c), which provides:

“The court shall appoint one of the jurors to be foreman and another to be deputy foreman. 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 every' indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court. During the absence of the foreman, the deputy foreman shall act as foreman.”

Rule 6(c) has somewhat ancient roots, cast as it is in what are now obsolete terms: foreman and deputy foreman. Centuries of usage, relating back to a day when women did not serve on juries, have embedded such terms in the law as in our daily vocabulary. However, it is not for us to amend the Rule outside the processes fixed by Congress for rulemaking; that is a task for the appropriate committees and the Judicial Conference of the United States.

As Rule 6(c) illustrates, the responsibilities of a federal grand jury foreman are essentially clerical in nature: administering oaths, maintaining records, and signing indictments. The secrecy imperative in grand jury proceedings demands that someone “mind the store,” just as a secretary or clerk would keep records of other sorts of proceedings. But the ministerial trappings of the post carry with them no special powers or duties that meaningfully affect the rights of persons that the grand jury charges with a crime, beyond those possessed by every member of that body. The foreman has no authority apart from that of the grand jury as a whole to act in a manner that determines or influences whether an individual is to be prosecuted. Even the foreman’s duty to sign the indictment is a formality, for the absence of the foreman’s signature is a mere technical irregularity that is not necessarily fatal to the indictment. Frisbie v. United States, 157 U. S. 160, 163-165 (1895).

As the Court of Appeals noted, the impact of a federal grand jury foreman upon the criminal justice system and the rights of persons charged with crime is “minimal and incidental at best.” 702 F. 2d, at 471. Given the ministerial nature of the position, discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant’s due process right to fundamental fairness. Simply stated, the role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself so as to undermine the integrity of the indictment.

Nor does discrimination in the appointment of grand jury foremen impair the defendant’s due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives. The due process concern that no “large and identifiable segment of the community [be] excluded from jury service,” Peters v. Kiff, 407 U. S., at 503, does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury. That the grand jury in this case was so properly constituted is not questioned. No one person can possibly represent all the “qualities of human nature and varieties of human experience,” ibid., that may be present in a given community. So long as the composition of the federal grand jury as a whole serves the representational due process values expressed in Peters, discrimination in the appointment of one member of the grand jury to serve as its foreman does not conflict with those interests.

The ministerial role of the office of federal grand jury foreman is not such a vital one that discrimination in the appointment of an individual to that post significantly invades the distinctive interests of the defendant protected by the Due Process Clause. Absent an infringement of the fundamental right to fairness that violates due process, there is no basis upon which to reverse petitioner’s conviction or dismiss the indictment.

B

Petitioner argues that the Court’s decision in Rose v. Mitchell, 443 U. S. 545 (1979), supports his position that discrimination in the selection of federal grand jury foremen warrants the reversal of his conviction and dismissal of the indictment against him. In Rose, two Negro defendants brought an equal protection challenge to the selection of grand jury foremen in Tennessee. The Court rejected the view that claims of grand jury discrimination should be considered harmless error when raised by a defendant who had been convicted by a properly constituted petit jury at an error-free trial on the merits, and adhered to the position that discrimination in the selection of the grand jury was a valid ground for setting aside a criminal conviction. Id., at 551-559. The Court then 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.” Id., at 551-552, n. 4 (emphasis added). The Court concluded, however, that the defendants were not entitled to have their convictions set aside because they had failed to make out a prima facie case of discrimina^ tion in violation of the Equal Protection Clause with regard to the selection of grand jury foremen. Id., at 564-574.

Petitioner’s reliance upon Rose is misplaced. Rose involved a claim brought by two Negro defendants under the Equal Protection Clause. As members of the class allegedly excluded from service as grand jury foremen, the Rose defendants had suffered the injuries of stigmatization and prejudice associated with racial discrimination. The Equal Protection Clause has long been held to provide a mechanism for the vindication of such claims in the context of challenges to grand and petit juries. See, e. g., Castaneda v. Partida, 430 U. S. 482 (1977); Hernandez v. Texas, 347 U. S. 475 (1954); Strauder v. West Virginia, 100 U. S. 303 (1880). Petitioner, however, has alleged only that the exclusion of women and Negroes from the position of grand jury foreman violates his right to fundamental fairness under the Due Process Clause. As we have noted, discrimination in the selection of federal grand jury foremen cannot be said to have a significant impact upon the due process interests of criminal defendants. Thus, the nature of petitioner’s alleged injury and the constitutional basis of his claim distinguish his circumstances from those of the defendants in Rose.

Moreover, Rose must be read in light of the method used in Tennessee to select a grand jury and its foreman. Under that system, 12 members of the grand jury were selected at random by the jury commissioners from a list of qualified potential jurors. The foreman, however, was separately appointed by a judge from the general eligible population at large. The foreman then served as “ ‘the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.’” Rose v. Mitchell, supra, at 548, n. 2 (quoting Tenn. Code Ann. §40-1506 (Supp. 1978)). The foreman selection process in Rose therefore determined not only who would serve as presiding officer, but also who would serve as the 13th voting member of the grand jury. The result of discrimination in foreman selection under the Tennessee system was that 1 of the 13 grand jurors had been selected as a voting member in an impermissible fashion. Under the federal system, by contrast, the foreman is chosen from among the members of the grand jury after they have been empaneled, see Fed. Rule Crim. Proc. 6(c); the federal foreman, unlike the foreman in Rose, cannot be viewed as the surrogate of the judge. So long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process.

Finally, the role of the Tennessee grand jury foreman differs substantially from that of the foreman in the federal system. The Tennessee foreman had the following duties:

“He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury. . . . The absence of the foreman’s endorsement makes an indictment ‘fatally defective.’ Bird v. State, 103 Tenn. 343, 344, 52 S. W. 1076 (1899).” Rose v. Mitchell, supra, at 548, n. 2.

The investigative and administrative powers and responsibilities conferred upon the grand jury foreman in Tennessee, who possessed virtual veto power over the indictment process, stand in sharp contrast to the ministerial powers of the federal counterpart, who performs strictly clerical tasks and whose signature on an indictment is a mere formality. Frisbie v. United States, 157 U. S. 160 (1895); see supra, at 344-345.

Given the nature of the constitutional injury alleged in Rose, the peculiar manner in which the Tennessee grand jury selection operated, and the authority granted to the one who served as foreman, the Court assumed in Rose that discrimination with regard to the foreman’s selection would require the setting aside of a subsequent conviction, “just as if the discrimination proved had tainted the selection of the entire grand jury venire.” Rose v. Mitchell, 443 U. S., at 551-552, n. 4. No such assumption is appropriate here, however, in the very different context of a due process challenge by a white male to the selection of foremen of federal grand juries.

III

At oral argument, petitioner eschewed primary reliance upon any particular constitutional provision and instead invoked this Court’s supervisory power over the federal courts as a basis for the relief he seeks. Tr. of Oral Arg. 4-5, 7, 13-14. Only by setting aside his conviction and dismissing the indictment against him, petitioner urges, will this Court deter future purposeful exclusion of minorities and women from the post of federal grand jury foreman. It is true that this Court’s “supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.” McNabb v. United States, 318 U. S. 332, 340 (1943). See United States v. Hasting, 461 U. S. 499 (1983). However, we decline petitioner’s invitation to embark upon the course of vacating criminal convictions because of discrimination in the selection of foremen. Less Draconian measures will suffice to rectify the problem.

In no sense do we countenance a purposeful exclusion of minorities or women from appointment as foremen of federal grand juries. We are fully satisfied that the district judges charged with the appointment of grand jury foremen will see to it that no citizen is excluded from consideration for service in that position on account of race, color, religion, sex, national origin, or economic status. Cf. 28 U. S. C. § 1862.

IV

We hold that, assuming discrimination entered into the selection of federal grand jury foremen, such discrimination does not warrant the reversal of the conviction of, and dismissal of the indictment against, a white male bringing a claim under the Due Process Clause. Accordingly, the judgment of the United States Court of Appeals for the Fourth Circuit is

Affirmed.

1 Compare United States v. Aimone, 715 F. 2d 822 (CA3 1983) (discrimination in federal grand jury foreman selection does not raise constitutional concerns); 702 F. 2d 466 (CA4 1983) (case below) (same); United States v. Coletta, 682 F. 2d 820 (CA9 1982) (alleged discrimination in federal grand jury foreman selection insufficient to imply due process violation), cert. denied, 459 U. S. 1202 (1983), with United States v. Cross, 708 F. 2d 631 (CA11 1983) (position of federal grand jury foreman constitutionally significant); United States v. Perez-Hernandez, 672 F. 2d 1380 (CA11 1982) (discrimination in selection of federal grand jury foreman may require reversal of conviction; defendant failed to establish such discrimination). See also United States v. Cronn, 717 F. 2d 164 (CA5 1983) (white male defendant lacks standing to press equal protection challenge to discrimination in selection of federal grand jury foreman; constitutional significance of foreman not addressed).

2 Peters held that a white male had standing to bring a racial-discrimination challenge to the system used to select his grand and petit juries. Justice Marshall, in an opinion joined by Justices Douglas and Stewart, reasoned that the defendant had standing to assert a denial of due process of law. 407 U. S., at 504. Justice White, in an opinion joined by Justices Brennan and Powell, concluded that standing would implement the strong statutory policy of 18 U. S. C. § 243, which provides that no qualified citizen “shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude. . . .” Id., at 505-507.