United States v. Lucian Lamar Sneed

729 F.2d 1333, 1984 U.S. App. LEXIS 23511

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 16, 1984
• Docket: 82-8565
• Status: Published

Opinions

TUTTLE, Senior Circuit Judge:

This case is the latest in a series in this Court challenging criminal convictions based on alleged discrimination in the selection of grand jury forepersons. Defendant Sneed was indicted by a grand jury empaneled by Judge Robert L. Vining on sixteen counts of embezzlement, mail fraud, and removal of property to prevent seizure, in violation of 18 U.S.C. §§ 656, 1341, and 2232. Sneed filed a timely motion to dismiss the indictment, alleging racial and sexual discrimination in the selection of grand jury forepersons in the northern district of Georgia. After the motion was denied, defendant was convicted on all sixteen counts, and this appeal followed. We affirm.

We begin our discussion by setting forth some basic principles germane to this case. The Supreme Court and this Circuit have recognized that a criminal defendant may attack a conviction on the grounds of purposeful discrimination against an identifiable group in the compilation of the grand jury list from which the grand jury indicting the defendant was drawn. See, e.g., Castaneda v. Partida, 430 U.S. 482, 492-93, 97 S.Ct. 1272, 1278-79, 51 L.Ed.2d 498 (1977); United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1121-22 (5th Cir.) (en banc), cert. denied, 454 U.S. 1056, 102 S.Ct. 603, 70 L.Ed.2d 593 (1981).¹ That the defendant is not a member of the underrepresented group does not deprive him of standing to raise the constitutional claim. United States v. Holman, 680 F.2d 1340, 1355-56 (11th Cir.1982); United States v. Perez-Hernandez, 672 F.2d 1380, 1385-86 (11th Cir.1982) (per curiam). Because “[t]he exclusion of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice” and “thus strikes at the fundamental values of our judicial system and our society as a whole,” Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979), the defendant need not show that he or she was prejudiced by the discrimination. Id.; Guice v. Fortenberry, 661 F.2d 496, 498-99 & 498 n. 2 (5th Cir.1981) (en banc). The remedy for an equal protection violation with respect to grand jury selection is to set aside the conviction and quash the indictment. Rose v. Mitchell, 443 U.S. at 551, 99 S.Ct. at 2997.

The same principles have been applied to equal protection challenges to the selection of grand jury forepersons.² The Supreme Court in Rose v. Mitchell 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.” 443 U.S. at 551 n. 4, 99 S.Ct. at 2998 n. 4. The Fifth Circuit, sitting en banc, adopted that proposition in Guice, stating that “[i]f convictions must be set aside because of taint of the grand jury, we see no reason to differentiate the result because discrimination affected only the foreman.” 661 F.2d at 499.³

In considering a challenge to the selection of state grand jury foreperson in Rose v. Mitchell, the Supreme Court utilized the prima facie case construct espoused in Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280. Under that test:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied____ Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreperson], over a significant period of time____ This method of proof, sometimes called the “rule of exclusion,” has been held to be available as a method of proving discrimination in jury selection against a delineated class____ Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

Rose v. Mitchell, 443 U.S. at 565, 99 S.Ct. at 3005 (quoting Castaneda v. Partida, 430 U.S. at 494, 97 S.Ct. at 1280).

The parties in this case acknowledge that blacks and women constitute distinct, recognizable classes. Gibson v. Zant, 705 F.2d 1543, 1547 (11th Cir.1983). Since each empaneling judge in the northern district of Georgia made grand jury foreperson decisions after having had access to juror qualification questionnaires indicating the race and sex of each grand juror, we may also conclude that the selection procedure was susceptible to abuse. Perez-Hernandez, 672 F.2d at 1387. We therefore focus our attention on the critical second prong of defendant’s prima facie case — the degree of underrepresentation shown.

By agreement of the parties below, defendant adopted the record in the district court cases of United States v. Smith, Cr. No. 78-99A (N.D.Ga.1981); United States v. Breland, 522 F.Supp. 468 (N.D.Ga.1981); and United States v. Northside Realty Associates, 510 F.Supp. 668 (N.D.Ga.1981). Defendant relies on these cases to establish the degree and length of underrepresentation necessary to satisfy the second prong of his prima facie case. Each of these cases presented a fifth amendment challenge to the selection of grand jury forepersons in the northern district of Georgia. The district court in Northside Realty made findings of fact concerning grand juries empaneled from January 1970 through February 1980, and the two later cases supplemented these findings with information regarding subsequently empaneled grand juries.

In light of our disposition of this appeal, we may accept as true defendant’s characterization of the combined record in these cases.⁴ From January 1970 to July 28, 1981, when the grand jury indicting defendant was empaneled, forty-eight grand jury forepersons were selected by judges in the northern district of Georgia. All but two of these forepersons were white, and all but two were male. Thus, 4.2% of the forepersons selected in the eleven and one-half years ending with the empanelment of defendant’s grand jury were black, and a like percentage were female. Given age-eligible population figures of 19.1% for blacks and 51.2% for females, the absolute disparity between each group’s presence in the northern district of Georgia and its presence as grand jury foreperson is 14.9% and 47.0%, respectively.

Defendant argues that, based on these disparities and Eleventh Circuit precedent, he has established the underrepresentation element of the Mitchell-Castaneda test. See Perez-Hernandez, 672 F.2d at 1387 (considering fifty foreperson selections over a four year period and concluding that an absolute disparity of 14.6% “clearly satisfies the second part of the prima facie test.”) The government, however, argues that we should only look at the foreperson appointments of the particular judge who empaneled the grand jury being challenged. In other words, the government would have us look only at the foreperson appointments of Judge Vining, who empaneled the grand jury that indicted the defendant in this case, rather than the appointments of all the judges in the northern district of Georgia. The government then takes its argument one step further and contends that because Judge Vining had made only two foreperson selections at the time defendant was indicted, defendant cannot make out a prima facie case of discrimination, since no statistical inference may be made from a mere two appointments.

We reject the government’s argument for two reasons. First, the government’s position is simply contrary to what we believe is clear precedent in this Circuit. In Perez-Hernandez the court held that statistics covering fifty grand jury foreperson selections made over a four year period by all of the judges in the southern district of Florida were sufficient to make out a prima facie case of discrimination. 672 F.2d at 1386-87. The Perez-Hernandez court did not then proceed to look at the selections of any one particular judge in the southern district of Florida. Rather, the court proceeded to determine whether the government rebutted the prima facie ease by “showing that racially [and sexually] neutral selection procedures have produced the disparity.” 672 F.2d at 1387. The court upheld the district court’s conclusion that the prima facie case had been rebutted. See also United States v. Holman, 680 F.2d 1340, 1355-57 (11th Cir.1982), aff'g 510 F.Supp. 1175 (N.D.Fla.1981); United States v. Cabrera-Sarmiento, 533 F.Supp. 799 (S.D.Fla.1982) (Hatchett, Circuit J., sitting by designation); United States v. Breland, 522 F.Supp. 468 (N.D.Ga.1981); United States v. Jenison, 485 F.Supp. 655 (S.D.Fla.1979).

Second, to the extent that this case can be distinguished from the holding in Perez-Hernandez and other cases in this Circuit, we believe that the government’s position would effectively emasculate the Mitchell-Castaneda test and make it nearly impossible for a federal defendant to make out a prima facie case of foreperson selection discrimination no matter how egregious the statistics might be. Under the government’s proposed analysis, if a particular judge has made so few foreperson appointments that a statistical analysis would be “unreliable,” the court would simply dismiss the challenge for failure to make out a prima facie case.⁵ Thus, only a judge who had been sitting for many years and who had selected many forepersons would ever be subject to a claim of discrimination. In effect, a trial judge could discriminate with impunity the first eight or nine times he or she selected a foreperson. Common sense tells us that only in rare cases would a criminal defendant be able to make out even a prima facie case of foreperson discrimination.

Thus, we hold that defendant made out a prima facie case of foreperson discrimination. But that does not end our inquiry — the prima facie case is only the starting point. Once a defendant makes out a prima facie case, the government has an opportunity to rebut the inference of discrimination. The record in this case is based largely on that compiled in United States v. Breland, 522 F.Supp. 468 (N.D.Ga.1981). In Breland, Judge Keady, sitting by designation so the court would have an impartial judge from outside the district, held that the government rebutted the prima facie case of discrimination. In particular, Judge Keady found that each judge of the northern district of Georgia exercised independent and sound discretion “in determining those qualities desirable for forepersons,” id. at 480, and that the predominant selection criteria used by the judges — occupation, education, and age— not only were neutral and objective, but clearly were relevant to the tasks performed by grand jury forepersons. Finally, Judge Keady found that the standards had been applied faithfully. Id. Those findings are supported by the record and therefore are not clearly erroneous. Moreover, none of the additional evidence and arguments introduced in this appeal are sufficient to change the conclusion reached in Breland. Therefore, we hold that the government successfully rebutted defendant’s prima facie case.

The only other issue Sneed raises in this appeal is whether the district court erred in denying Sneed’s motion for discovery of certain grand jury minutes. We find no error in the district court’s ruling.

AFFIRMED.

1 . State defendants’ rights are protected under the equal protection clause of the fourteenth amendment, while federal defendants’ rights are protected under the equal protection prong of the fifth amendment’s due process clause, but the same analysis governs under either guarantee. United States v. Perez-Hernandez, 672 F.2d 1380, 1385 (11th Cir.1982).

2 . Although the composition of a grand jury or petit jury venire may be challenged under the sixth amendment’s guarantee of a right to be tried by a group drawn from a source representing a fair cross-section of the community, see, e.g., Machetti v. Lindhan, 679 F.2d 236, 239 (11th Cir.1982), this requirement does not extend to the office of grand jury foreperson because ”[o]ne person alone cannot represent the divergent views, experience, and ideas of the distinct groups which form a community.” Perez-Hernandez, 672 F.2d at 1385.

3 . The government has devoted much of its brief to portraying the office of federal, as opposed to state, grand jury foreperson as a position without constitutional significance, thereby rendering the selection of such forepersons impervious to a fifth amendment equal protection attack. The simple fact is that this court has squarely held the position of federal grand jury foreperson to be constitutionally significant. United States v. Cross, 708 F.2d 631, 636-37 (11th Cir.1983). But see United States v. Hobby, 702 F.2d 466 (4th Cir.), cert. granted, — U.S.-, 104 S.Ct. 547, 78 L.Ed.2d 722 (1983).

4 . Defendant, unlike the Breland court, excludes from his calculation of minority forepersons a black male initially selected as deputy foreperson but carrying out the duties of foreperson on agreement with the original foreperson and with the district court’s approval. 522 F.Supp. at 470 & n. 4. Defendant apparently also ex-eludes an extra foreperson selection necessitated when the first foreperson died and the deputy declined to assume the office of foreperson. Id. at 469 n. 2. For population percentages the Breland court employed 1970 census age-eligible figures, “adjusted by 1978 Georgia estimates and recognized undercount percentages.” Id. at 470.

5 . A hypothetical demonstrates the Catch-22 nature of the government’s argument. Suppose a district court consists of 10 judges, each of whom has appointed a total of three grand jury forepersons over a 10 year period. Suppose also that of the 30 grand juries convened over the 10 year period, not a one contained a black or female foreperson, and that the district had a large black population and a normal (approximately 50%) female population. Looking at the overall performance of the district, it would be easy to infer from such bleak statistics that a case of discrimination had been made out. But under the government’s argument, the focus would be on one judge, who had made only three selections. It would, of course, be difficult to infer discrimination from only three selections. Thus, a district court with several judges could insulate itself completely from grand jury foreperson selection discrimination claims simply by spreading the relatively few selections evenly among the judges.