United States v. Geelan

509 F.2d 737
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 31, 1974
DocketNos. 74-1048, 73-1869, 74-1074 and 74-1073
StatusPublished
Cited by34 cases

This text of 509 F.2d 737 (United States v. Geelan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Geelan, 509 F.2d 737 (8th Cir. 1974).

Opinion

WEBSTER, Circuit Judge.

These criminal appeals have been consolidated because they present one common question: whether the delay of the District Clerk1 in implementing the 1972 amendments to the Jury Selection and Service Act of 1968 caused juries to be empaneled so contrary to law as to mandate reversal of convictions by such juries. Other non-common assignments of error will be considered separately.

In each of the consolidated cases a motion had been filed in which the defendants sought a stay of proceedings on the [739]*739ground that the master jury wheel from which jurors would be chosen for their respective trials had not been refilled in accordance with the requirements of 28 U.S.C. § 1863 and Rule 6 of the Local Rules of the Northern District of Iowa. The motions were denied, juries were empaneled and the defendants were thereafter tried and convicted.2

I.

In 1972, Congress amended the Jury Selection and Service Act of 19683 by enacting Public Law 92-269, the purpose of which was “to change the minimum age qualification for serving as a juror in Federal courts from 21 years of age to 18 years of age.”4 Public Law 92-269 provides in part that:

Each judicial district * * * for which a separate plan for random selection of jurors has been adopted pursuant to section 1863 of title 28, United States Code * * * shall not later than September 1, 1973, refill its master jury wheel with names obtained from the voter registration lists for, or the lists of actual voters in, the 1972 general election.
* * * * * *
The qualified jury wheel in each judicial district * * * for which a separate plan for random selection of jurors has been adopted, shall be refilled from the master jury wheel not later than October 1, 1973.

The Northern District of Iowa had in effect a plan for the random selection of jurors pursuant to 28 U.S.C. § 1863, but at the time of these trials in mid-October, 1973, the master jury wheels had not been refilled as required by the 1972 amendment to the Act. The jury panels used in the trials of these appellants were drawn from a qualified jury wheel containing names drawn from the master jury wheel.

Appellants contend that since the mandates of Public Law 92-269 for jury selection had not been complied with at the time of their trials, the District Judge committed prejudicial error by denying their motions to stay the proceedings.5

Although the government concedes that Section 3(c) of Public Law 92-269 “was not literally complied with” it asserts that: (1) each appellant failed to meet the requirement of timeliness set out in 18 U.S.C. § 1867 and thereby waived his right to complain of the jury selection process used in his case, (2) the “savings” clause of Public Law 92-269 permitted the old jury wheels to be used until they had been properly refilled, and (3) appellants have failed to show that any prejudice resulted from the process used to select jurors for their trials.

A.

28 U.S.C. § 1867 provides the exclusive method by which a defendant in a criminal case may challenge compliance with the jury selection procedures of the 1968 Act. 28 U.S.C. § 1867(e). The pertinent provisions are as follows:

(a) In criminal eases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to [740]*740comply with the provisions of this title in selecting the grand or petit jury.
* # ^ sfc * *
(d) Upon motion filed under subsection (a) * * * of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. * * * If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.

In United States v. Williams, 421 F.2d 529 (8th Cir. 1970), this court specifically recognized the importance of a prompt challenge to the process of selecting jurors. We addressed a situation where appellant’s counsel had waited until the day of the trial to complain of the composition of the jury when he possessed the necessary facts to make his complaint eighteen days earlier, and said:

We have held in several decisions that the right to challenge the jury panel may be waived and is waived if not seasonably presented. * * * Appellant’s tardiness in asserting his challenge amounts to a waiver of that right in the instant case.
421 F.2d at 532.

Defendants were granted ten days in which to filé pre-trial motions following their arraignment on September 17, 1973. There is no showing in the record that defendants were misled or that needed information was withheld from them. It required only a simple inquiry to ascertain that the master jury wheel had not been refilled by September 1 with names taken from the 1972 voter list, which would have included the names of 18 year-olds for the first time. A similar inquiry would have produced the fact that the names in the qualified wheel had not been refilled by October 1 with names in turn taken from a master jury wheel refilled in accordance with the 1972 amendment. The motions to stay proceedings were not filed until October 23, the date upon which the cases were set for trial. Since the defendants did not file their motions within seven days after they had discovered the noncompliance, or could have discovered it by the exercise of diligence, they are precluded under the statute from asserting that the trial court erroneously denied their motions because of the failure of the District Clerk to meet the statutory deadlines. 28 U.S.C. § 1867(a).

Our inquiry does not stop here, however, because appellants’ challenge to the jury selection procedure has constitutional overtones.

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509 F.2d 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-geelan-ca8-1974.