HAMLEY, Circuit Judge.
Hobert Leon Edwards appeals from his conviction of the offense of attempted armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d).
Edwards first argues that the trial court erred in denying defendant’s motion, made before trial, that the proceedings be stayed because the petit jury selection procedure in use in the Northern District of California fails to comply with the Jury Selection and Service Act of 1968 (Act), 28 U.S.C. § 1861 et seq. The motion was timely and an appropriate way to challenge compliance with the jury selection procedures.
See
28 U.S.C. § 1867(a), (d).
The basis of defendant’s motion was that, under the petit jury selection procedure in use in the Northern District of California at the time of the trial, all citizens of the six counties within the Eureka and Oakland divisions of that district had no opportunity to serve on federal juries. In urging that the Act
requires that all citizens shall have the opportunity to be considered for service on grand and petit juries in the districts in which they reside, defendant relies primarily upon the following italicized portions of the declaration of policy set out in 28 U.S.C. § 1861:
Ҥ 1861. Declaration of policy
“It is 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.
It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.”
(Emphasis supplied.)
Defendant, while urging the court to consider the Act as a whole, also calls special attention to 28 U.S.C. § 1863(b) (3), which, among other things, requires that every jury selection plan authorized by the Act “shall ensure that each county, parish, or similar political subdivision' within the district or division is substantially proportionally represented in the master jury wheel” for that district or division.
In addition, defendant calls attention to a provision of the Act, 28 U.S.C. § 1863(b) (7), under which the jury selection plan can specify a distance from the courthouse beyond which a summoned juror’s request for discharge is automatically granted.
The Act (28 U.S.C. § 1863(a) ) provides that each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of 28 U.S.C. §§ 1861 and 1862.
The amended Plan of the United States District Court for the Northern District of California (Plan), approved May 4, 1970, divides that district into four judicial divisions, known as the Eureka, Oakland, San Francisco and San Jose divisions.
The
policy declaration set out in the Plan closely follows the statutory policy declarations set out in 28 U.S.C. §§ 1861 and 1862.
Consistent with 28 U.S.C. § 1863(b) (3)
and (4), the Plan calls for the maintenance of a “master” jury wheel for each of the four divisions within the district. The names of all persons randomly selected from the voter registration lists of the counties in each division are to be placed in the master jury wheel for the respective divisions.
In addition to these master jury wheels, the Plan, consistent with 28 U. S.C. § 1866(a), requires the clerk to maintain separate “qualified” jury wheels for each division in the district. There is to be placed in these wheels the names of all persons drawn from the master jury wheel for such division, and not disqualified, exempt or excused pursuant to the Plan.
The Plan also provides for the maintenance of “ready” wheels for each division, to be drawn by the clerk at random from the various qualified wheels. Each ready wheel shall contain such jurors as have not been excused or otherwise disqualified by the court under the Plan.
Each ready panel is to be empaneled in the San Francisco, Oakland and San Jose divisions beginning on the first Monday in April and October “whenever necessary for the regular sessions of the Court at San Francisco, Oakland and San Jose.” A ready panel is to be empaneled for the Eureka division on the last Monday in September “whenever necessary for sessions of this Court at Eureka.” For the purpose of obtaining a jury panel for a particular trial, the clerk is to draw at random from the ready jury wheels.
In compliance with the Plan, master jury wheels and qualified juror wheels are maintained in San Francisco for all four divisions of the Northern District of California. At the time of the trial herein, which commenced on December 13, 1971, ready wheels were also maintained for the San Francisco and San Jose divisions, but not for the Eureka and Oakland divisions. At that time no criminal trials were being held in the Eureka and Oakland divisions.
Since the trial of Edwards, ready wheels have been maintained for both Eureka (beginning April 17, 1972) and Oakland (beginning March 24, 1972), and criminal cases were set for trial in both of these divisions in 1972.
Under established procedure in the Northern District of California, a criminal trial is held in the Eureka or Oakland divisions only when the court finds upon its own motion, motion of any party, or stipulation, that the convenience of parties and witnesses, in the interest of justice, will be served by transferring the action to Eureka or Oakland.
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HAMLEY, Circuit Judge.
Hobert Leon Edwards appeals from his conviction of the offense of attempted armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d).
Edwards first argues that the trial court erred in denying defendant’s motion, made before trial, that the proceedings be stayed because the petit jury selection procedure in use in the Northern District of California fails to comply with the Jury Selection and Service Act of 1968 (Act), 28 U.S.C. § 1861 et seq. The motion was timely and an appropriate way to challenge compliance with the jury selection procedures.
See
28 U.S.C. § 1867(a), (d).
The basis of defendant’s motion was that, under the petit jury selection procedure in use in the Northern District of California at the time of the trial, all citizens of the six counties within the Eureka and Oakland divisions of that district had no opportunity to serve on federal juries. In urging that the Act
requires that all citizens shall have the opportunity to be considered for service on grand and petit juries in the districts in which they reside, defendant relies primarily upon the following italicized portions of the declaration of policy set out in 28 U.S.C. § 1861:
Ҥ 1861. Declaration of policy
“It is 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.
It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.”
(Emphasis supplied.)
Defendant, while urging the court to consider the Act as a whole, also calls special attention to 28 U.S.C. § 1863(b) (3), which, among other things, requires that every jury selection plan authorized by the Act “shall ensure that each county, parish, or similar political subdivision' within the district or division is substantially proportionally represented in the master jury wheel” for that district or division.
In addition, defendant calls attention to a provision of the Act, 28 U.S.C. § 1863(b) (7), under which the jury selection plan can specify a distance from the courthouse beyond which a summoned juror’s request for discharge is automatically granted.
The Act (28 U.S.C. § 1863(a) ) provides that each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of 28 U.S.C. §§ 1861 and 1862.
The amended Plan of the United States District Court for the Northern District of California (Plan), approved May 4, 1970, divides that district into four judicial divisions, known as the Eureka, Oakland, San Francisco and San Jose divisions.
The
policy declaration set out in the Plan closely follows the statutory policy declarations set out in 28 U.S.C. §§ 1861 and 1862.
Consistent with 28 U.S.C. § 1863(b) (3)
and (4), the Plan calls for the maintenance of a “master” jury wheel for each of the four divisions within the district. The names of all persons randomly selected from the voter registration lists of the counties in each division are to be placed in the master jury wheel for the respective divisions.
In addition to these master jury wheels, the Plan, consistent with 28 U. S.C. § 1866(a), requires the clerk to maintain separate “qualified” jury wheels for each division in the district. There is to be placed in these wheels the names of all persons drawn from the master jury wheel for such division, and not disqualified, exempt or excused pursuant to the Plan.
The Plan also provides for the maintenance of “ready” wheels for each division, to be drawn by the clerk at random from the various qualified wheels. Each ready wheel shall contain such jurors as have not been excused or otherwise disqualified by the court under the Plan.
Each ready panel is to be empaneled in the San Francisco, Oakland and San Jose divisions beginning on the first Monday in April and October “whenever necessary for the regular sessions of the Court at San Francisco, Oakland and San Jose.” A ready panel is to be empaneled for the Eureka division on the last Monday in September “whenever necessary for sessions of this Court at Eureka.” For the purpose of obtaining a jury panel for a particular trial, the clerk is to draw at random from the ready jury wheels.
In compliance with the Plan, master jury wheels and qualified juror wheels are maintained in San Francisco for all four divisions of the Northern District of California. At the time of the trial herein, which commenced on December 13, 1971, ready wheels were also maintained for the San Francisco and San Jose divisions, but not for the Eureka and Oakland divisions. At that time no criminal trials were being held in the Eureka and Oakland divisions.
Since the trial of Edwards, ready wheels have been maintained for both Eureka (beginning April 17, 1972) and Oakland (beginning March 24, 1972), and criminal cases were set for trial in both of these divisions in 1972.
Under established procedure in the Northern District of California, a criminal trial is held in the Eureka or Oakland divisions only when the court finds upon its own motion, motion of any party, or stipulation, that the convenience of parties and witnesses, in the interest of justice, will be served by transferring the action to Eureka or Oakland.
Defendant Edwards did not request a trial in either the Eureka or Oakland divisions. The offense for which he was tried and convicted occurred in San Francisco, and that is where he was tried. Approximately thirty-six percent of the population of the Northern District of California resides in the Eureka or Oakland divisions. While, at the time of Edwards’ trial, that population had appropriate representation on the Eureka or Oakland divisional “master” and “qualified” wheels under the Plan, they were not, as described above, represented on any “ready” wheel because, up to then, there had been no criminal trials in either of these divisions.
As we understand Edwards’ argument, he does not object to the procedure followed in the Northern District of California concerning the commencement of all criminal proceedings in the San Francisco division and the possible subsequent transfer of some of these to the Eureka and Oakland divisions, apart from the fact that, up to the time of his trial, no trials had been transferred to the Eureka and Oakland divisions.
But he urges that in view of the fact that no trials were being held in the Eureka or Oakland divisions, the Plan should have made provision for the inclusion of residents of the Eureka and Oakland divisions on the jury ready wheels, described above, utilized in selecting jurors for San Francisco, and possibly San Jose, trials. Otherwise, he asserts, the combined operation of the Plan and the Local Rules described above thwarts the policy declared in the second sentence of 28 U.S.C. § 1861 (quoted and italicized above). That policy is that “all citizens” shall have the “opportunity to be considered” for service on grand and petit juries in the district courts of the United States.
The statement of policy upon which Edwards relies, is the second of two statements of policy set forth in 28 U.S.C. § 1861. The first policy declaration is 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.”
Pursuant to the Act, and the Plan under consideration, Edwards had a jury which fully met this policy requirement. It is true, however, that because of the interaction of the Plan and the Local Rules, as described above, not all citizens of the district had, at the time of Edwards’ trial, an “opportunity to be considered for service on petit juries” in the district, as provided in the second policy declaration of 28 U.S.C. § 1861.
In our opinion, however, the failure to conform to this second policy declaration, assuming Edwards has standing to raise the question, is not due to noncompliance with the Act, but to the operation of a number of variables which the district court could not reasonably have foreseen when it formulated the Plan and prescribed the relevant Local Rules. These variables are: (1) the extent to which federal offenses are committed in the Eureka and Oakland divisions, (2) the extent to which the parties involved in any such offense move to transfer the cause to one of those divisions, and (3) the extent to which, in the exercise of its discretion, the court may transfer such causes to the Eureka or Oakland division for the convenience of parties and witnesses.
If the district court had known in advance that the interaction of the Plan and pertinent Local Rules, as affected by the described variables, would result in no trials being held in the Oakland or Eureka divisions, perhaps reversal would be appropriate. Any such intentional deprivation of the opportunity of citizens in the Oakland and Eureka divisions to be considered for jury service might deny equal protection to those citizens. However, we need not decide that question here.
No one contends that the district court knew or could have known in advance of this eventuality. Indeed, even today, we are not advised in this record which of the described variables operated to prevent any federal criminal trials from being held in the Eureka and Oakland divisions up to the time of Edwards’ trial.
In our opinion, the Plan formulated by the United States District Court for the Northern District of California is in full compliance with the Act, in the respect in question.
We therefore hold that the trial court did not err in denying defendant’s motion to stay the proceedings.
Edwards next argues that the trial court erred in denying his pretrial motion to suppress the evidence, including two weapons, seized at his San Francisco residence, and in overruling his objection to the introduction of this evidence at the trial.
The motion and objection were made on the ground that the Government did not prove that, in verbally assenting to the search and seizure, Edwards was aware of his Fourth Amendment rights. As authority for this argument, Edwards cites Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971), cert. granted 405 U.S. 953, 31 L.Ed.2d 230, 92 S.Ct. 1168 (1972), and Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968).
We first summarize the relevant facts, considered in the light most favorable to the Government. Following a legal admonition of his constitutional rights Edwards confessed to the attempted rob
bery. In his confession he mentioned the subject of guns, saying that the Thomas brothers brought the guns. He admitted that he had the guns as he entered the bank and that, after the attempted robbery, he took the guns and went back to his house. Police Inspector Gilford then asked Edwards where the guns were; he answered that they were in his house on Haight Street, one in a drawer and the other in a closet. Edwards then added that the inspector could go and get them, and that Edwards thought his wife was at home and if the inspector told her Edwards had asked the inspector to come and get the guns that she would let the inspector have them.
These facts show that the police did not request permission to search for and seize the weapons, but that Edwards voluntarily invited the police to go to his residence and obtain them and 'told the police precisely where the weapons were located. Under these circumstances there was no search or seizure.
Busta-monte
and
Schoepflin,
both
supra,
are not applicable.
We conclude that the weapons in question were not unlawfully seized, and were properly admitted into evidence.
Finally, Edwards argues that his right to indictment by grand jury was violated when the trial court “amended” the indictment during the trial to conform to the Government’s proof.
The indictment charged that the offense was committed “in the City of Berkeley, County of Alameda, State and Northern District of California.” After the jury had been sworn, counsel for the Government informed the court that the . Government’s proof would show that Edwards robbed a bank in the City and County of San Francisco. After a recess the trial judge ruled that the words “City of Berkeley, County of Alameda” were surplusage. When the jury returned to the courtroom the trial court instructed them as set out in the margin.
Counsel for Edwards duly ex
cepted to this instruction on the ground that it constituted an impermissible amendment to the indictment.
The Fifth Amendment entitled Edwards to trial on an indictment of a grand jury. Rule 7(d), Federal Rules of Criminal Procedure, provides that the court “on motion of the defendant may strike surplusage from the indictment or information.” The Notes of the Advisory Committee on this rule contain this observation concerning the rule:
“The authority of the court to strike such surplusage is to be limited to doing so on defendant’s motion, in the light of the rule that the guaranty of indictment by a grand jury implies that an indictment may not be amended. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. By making such a motion, the defendant would, however, waive his rights in this respect.” 18 U.S.C.A. F.R.Crim.P., Rule 7, at p. 325.
The law with respect to the formal or informal amendment of indictments, the disregard of parts of an indictment as “surplusage,” and the like, is in a confused state, as pointed out in Heisler v. United States, 394 F.2d 692, 695-696 (9th Cir. 1968). However, giving consideration to the varying Supreme Court and court of appeals decisions cited in
Heisler,
we conclude that, under the circumstances of our case, defendant’s right to indictment by grand jury was not violated in view of the following factors: (1) no change was made on the face of the indictment, (2) the reference in the indictment to “the City of Berkeley, County of Alameda,” was truly surplusage, and (3) in view of the instruction given the jury, Edwards was not prejudiced.
Affirmed.