United States v. Royal

Opinion

USCA1 Opinion

  United States Court of Appeals

                      For the First Circuit

                       ____________________

                                

No. 98-1825

                                

                   UNITED STATES OF AMERICA,

                                

                           Appellee,

                                

                               v.

                                

                        JEROME E. ROYAL,

                                

                     Defendant, Appellant.

                                

                      ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

          [Hon. Robert E. Keeton, U.S. District Judge]

                                

                      ____________________

                                

                             Before

                                

                     Selya, Circuit Judge,

                                

                Campbell, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.

                                

                      ____________________


James E. Carroll, with whom Sheila High King and Cetrulo &

Capone LLP were on brief, for appellant.

    Nadine Pellegrini, Assistant U.S. Attorney, with whom Donald

K. Stern, U.S. Attorney, was on brief, for appellee.     

   

                      ____________________

                                

                         April 2, 1999

                      ____________________


LYNCH, Circuit Judge.  After prevailing, in a previous

appeal to this court, on his motion to inspect the jury selection

records of the Eastern Division of the District of Massachusetts,

Jerome E. Royal moved for a new trial, claiming that the selection

process used to pick the jury panel that convicted him of

conspiracy and mail fraud violated the Sixth Amendment and the Jury

Selection and Service Act ("the Act").  The district court denied

this motion.  Royal appeals, urging that the selection process

produces systematic underrepresentation of blacks, an argument

which depends upon changing the law of this Circuit governing

evaluation of a jury selection challenge.  We decline the

invitation and affirm.

                               I

    The facts relating to Royal's conviction and first appeal

are set forth in United States v. Royal, 100 F.3d 1019 (1st Cir.

1996), and we recount only the most relevant aspects here.

    Royal was indicted in 1992 on charges of mail fraud,

conspiracy to commit mail fraud, and aiding and abetting.  See id.

at 1023.  When the case was called for trial, Royal made various

motions relating to the jury venire and the jury selection process

for the Eastern Division.  The district court denied Royal's

motions to inspect the jury records of the Eastern Division,

suggesting "that, in order to inspect the requested records, Royal

was required to make a showing that he would be able to satisfy the

three prongs of [the test for establishing a prima facie violation

of the fair cross-section requirement]."  Id. at 1024.  The case

proceeded to trial; the jury found Royal guilty of one count of

conspiracy and eight counts of mail fraud.  See id. at 1023.

    Royal appealed.  This court rejected Royal's challenges

to the jury charge, the sufficiency of the evidence, and various

aspects of his sentence, but reversed the district court's denial

of his motions to inspect the jury records and remanded for further

proceedings.  See id. at 1022.  Relying on 28 U.S.C.  1867(f) and

Test v. United States, 420 U.S. 28 (1975), this court stated that

"a defendant, such as Royal, challenging the jury selection

procedures has an unqualified right to inspect jury records. . . .

[A] district court may not premise the grant or denial of a motion

to inspect upon a showing of probable success on the merits of a

challenge to the jury selection provisions."  Royal, 100 F.3d at

1025.  The court therefore "remand[ed] the case with instructions

to allow Royal access to [the jury records] . . . in order to

support a motion to strike the jury venire" and authorized Royal to

"move for a new trial under 28 U.S.C.  1867(a)."  Id. at 1025-26. 

    Upon remand to the district court, the district judge

made provisions for permitting Royal to inspect "[t]he contents of

records or papers used by the jury commission or clerk in

connection with the jury selection process" for 1994, the year

relevant to Royal's particular jury.  28 U.S.C.  1867(f), quoted

in Royal, 100 F.3d at 1025-26.  These provisions included a

substantial time period for Royal to examine and evaluate the

materials as well as the grant of Royal's motions for appointment

and compensation of an expert.  Eventually, on December 24, 1997,

Royal moved for a new trial, claiming that he "was denied his Sixth

Amendment right under the United States Constitution and his

statutory right under the Jury Selection and Service Act, 28 U.S.C.

 1861 et seq., to a jury selected at random from a fair cross

section of the community."  United States v. Royal, 7 F. Supp. 2d

96, 97-98 (D. Mass. 1998) (internal quotation marks omitted).

    Royal's claim of constitutional and statutory flaws in

the selection process was based on the operation and implementation

of the Amended Jury Plan for the District of Massachusetts, which

is dated September 6, 1989.  See generally 28 U.S.C.  1863(a)

("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 . . .

and that shall otherwise comply with . . . this title.").  This

Plan divides the district into three divisions for jury selection

purposes, one of which is the Eastern Division at issue in this

case (consisting of Barnstable, Bristol, Dukes, Essex, Middlesex,

Nantucket, Norfolk, Plymouth, and Suffolk counties).  The source

for selection of jurors in each division is "the numbered local

resident lists submitted annually to the Office of the Jury

Commissioner for the Commonwealth of Massachusetts in accordance

with Massachusetts General Laws Chapter 234A," which the Plan

states "includes all registered voters, supplemented by all

residents not registered to vote."  Names are randomly selected

from the resident lists and placed in the Master Jury Wheel.  At

this stage, the Plan provides for a one-step summoning and

qualification process, as authorized by the Act, see 28 U.S.C.

 1878, and specifies various categories of potential jurors who

are unqualified, exempt, and eligible for excuse, in accordance

with 28 U.S.C.  1863, 1865, and 1866.  The Plan also, inter alia:

  (1) requires the Jury Clerk to note the "determination"

whether a prospective juror is unqualified, exempt, or excused "in

the space provided on the juror qualification form,"

  (2) permits the Clerk to "grant temporary excuses to

prospective jurors on the grounds of undue hardship or extreme

inconvenience,"

  (3)    mandates that temporarily excused jurors be resummoned

"at the conclusion of the excuse period," and

  (4)    provides that "[t]he Court will, from time to time,

review the actions of the Clerk [in granting such temporary

excuses] . . . to determine whether or not there is an abuse of the

discretion granted to the Clerk."

    Upon inspection of the 1994 records, Royal concluded that

21,900 prospective jurors were summoned, that 18,451 returned their

juror qualification forms, and that 415 of the forms were returned

by individuals identifying themselves as black and 1,185 were

returned by individuals who declined to designate their race.  The

difference between 18,451 and 21,900 is accounted for by the fact

that 899 summonses were nondeliverable and 2,550 were not returned

by the recipients.

    Of the 415 identifiable black prospective jurors who

returned qualification forms, Royal discovered, 41 were

disqualified and 13 were exempt from service.  One hundred and four

of the remaining black prospective jurors were excused at some

point during the selection process; 10 of those excuses were

granted without notation of a request or a reason for the excuse in

the records examined.

    At juror orientation, Royal found, some 5,571 prospective

jurors appeared, of whom 167 were black.  Royal determined that 24

prospective black jurors were labeled no-shows and 66 did not

appear because their panels were cancelled due to lack of

necessity. 

    To help explain these numbers, Royal had an expert

analyze the data.  Royal's expert analyzed the zip codes of the

nondeliverable and nonreturned summonses and concluded that

summonses failed more often in areas in which the size of the black

population is relatively significant.  For instance, the expert

concluded that summonses failed twice as often in areas in which

more than 50% of the population is black than they did in areas in

which blacks make up less than 2% of the population.  The expert

also concluded that the Massachusetts resident lists were flawed

and undercounted black residents.

    On June 12, 1998, the district court denied Royal's

motion for a new trial.  See Royal, 7 F. Supp. 2d at 106-07.  The

court found Royal's calculation of black underrepresentation faulty

because, inter alia, that calculation compared the number of self-

identified blacks who returned questionnaires with the total number

of individuals (of whatever race) summoned rather than merely with

the total number who returned questionnaires.  See id. at 105.  At

any rate, the court concluded, Royal's new trial motion failed,

even assuming his calculation was correct, because the levels of

disparity that Royal had identified were not objectionable under

either the Sixth Amendment or the Act.  See id. at 106.

    The court also rejected the arguments that the

Massachusetts resident lists used as a source for selecting jurors

were insufficient because they undercounted blacks, that the

alleged failure to account for undeliverable or nonreturned

responses violated the Act, and that the Jury Clerk committed a

material abuse of discretion by failing to list a reason for

excusing ten black prospective jurors.  See id. at 101-03.

    Royal appeals the district court's denial.  We review the

district court's findings of fact for clear error and its

conclusions of law de novo.  See United States v. Paniagua-Ramos,

135 F.3d 193, 197 (1st Cir. 1998); Royal, 100 F.3d at 1023-24;

United States v. Shinault, 147 F.3d 1266, 1271 (10th Cir.), cert.

denied, 119 S. Ct. 459 (1998).  In the end, any dispute over the

facts is essentially moot.  This case turns on the choice of

statistical methodology to determine whether there is

underrepresentation of black persons.



                               II

    "[T]he American concept of the jury trial contemplates a

jury drawn from a fair cross section of the community," Taylor v.

Louisiana, 419 U.S. 522, 527 (1975), and "the fair-cross-section

requirement [is] fundamental to the jury trial guaranteed by the

Sixth Amendment," id. at 530; see also Holland v. Illinois, 493

U.S. 474, 480 (1990).  The Sixth Amendment provides: "In all

criminal prosecutions, the accused shall enjoy the right to a . .

. trial[] by an impartial jury of the State and district wherein

the crime shall have been committed . . . ."  U.S. Const. amend.

VI; see also 28 U.S.C.  1861 ("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.").

    This requirement of a fair cross-section, however, does

not guarantee that juries be "of any particular composition,"

Taylor, 419 U.S. at 538, or that "venires . . . [be] a

substantially true mirror of the community," Barber v. Ponte, 772

F.2d 982, 997 (1st Cir. 1985) (en banc).  All that is required is

that "the jury wheels, pools of names, panels, or venires from

which juries are drawn must not systematically exclude distinctive

groups in the community and thereby fail to be reasonably

representative thereof."  Taylor, 419 U.S. at 538.

    In order to make a prima facie case of a violation of the

fair cross-section requirement, a defendant must show:

    (1) that the group alleged to be excluded is a "distinctive"

  group in the community; (2) that the representation of this

  group in venires from which juries are selected is not fair

  and reasonable in relation to the number of such persons in

  the community; and (3) that this underrepresentation is due to

  systematic exclusion of the group in the jury-selection

  process. 



Duren v. Missouri, 439 U.S. 357, 364 (1979), quoted in United

States v. Hafen, 726 F.2d 21, 23 (1st Cir. 1984); see also United

States v. Foxworth, 599 F.2d 1, 3-4 (1st Cir. 1979).  This test

applies to Royal's fair cross-section claims under both the Sixth

Amendment and the Act.  See, e.g., Shinault, 147 F.3d at 1270-71;

Hafen, 726 F.2d at 23 n.1.

    There is no dispute that Royal has satisfied the first

prong of this test; blacks are unquestionably a "distinctive" group

for the purposes of a fair cross-section analysis.  See Hafen, 726

F.2d at 23 (citing Peters v. Kiff, 407 U.S. 493, 498-99 (1972)). 

    With respect to the second prong, courts and commentators

have discussed various forms of statistical analysis that may be

used to demonstrate that representation is not "fair and reasonable

in relation to the number of such persons in the community."  See,

e.g., Peter A. Detre, Note, A Proposal for Measuring

Underrepresentation in the Composition of the Jury Wheel, 103 Yale

L.J. 1913, 1917-18 (1994).  Only two of these forms -- "absolute

disparity" and "comparative disparity" -- are at issue in this

case.  Absolute disparity measures the difference between the

percentage of members of the distinctive group in the relevant

population and the percentage of group members on the jury wheel. 

See Hafen, 726 F.2d at 23 (calculating "the difference between the

percentage of eligible blacks in the population and the percentage

of blacks on the master wheel"); see also United States v. Pion, 25

F.3d 18, 23 n.5 (1st Cir. 1994) (defining the absolute disparity

standard as "the gross spread between the percentage of eligible

Hispanics . . . in the relevant population and the percentage of

Hispanic representation on the Master Jury Wheel"); cf. United

States v. Rioux, 930 F. Supp. 1558, 1565-68 (D. Conn. 1995)

(stating that "[t]he identified systematic defect defines . . . the

particular pool"), aff'd, 97 F.3d 648 (2d Cir. 1996).

    In contrast, comparative disparity "measures the

diminished likelihood that members of an underrepresented group,

when compared to the population as a whole, will be called for jury

service."  Ramseur v. Beyer, 983 F.2d 1215, 1231-32 (3d Cir. 1992). 

It is calculated by dividing the absolute disparity percentage by

the percentage of the group in the population.  See Hafen, 726 F.2d

at 23 (stating that comparative disparity is measured by

calculating "the percentage difference between the proportion of

blacks eligible to serve as jurors . . . and the shortfall in black

representation"); see also Pion, 25 F.3d at 23 n.5.

    For fifteen years, this Circuit has rejected comparative

disparity analysis and applied absolute disparity analysis in cases

similar to the case at hand, and we have recently reaffirmed this

position.  In United States v. Hafen, 726 F.2d 21 (1st Cir. 1984),

in which this court upheld a previous version of the selection plan

for the Eastern Division, the court assumed that, as Hafen

contended, 3.73% of the Eastern Division's over-eighteen population

was black and only 1.714% of the master jury wheel was black.  See

id. at 23.  The court concluded, however, that the resulting 2.02%

absolute disparity was "insufficient to show underrepresentation,"

citing cases from other circuits that accepted absolute disparities

of up to 10%.  Id.  The court recognized that the absolute

disparity in the case would be small "even if every black in the

region were excluded from jury service," and "acknowledge[d] the

possibility that the comparative disparity calculation might be a

useful supplement to the absolute disparity calculation in some

circumstances."  Id. at 23-24.  However, Hafen refused to employ a

comparative disparity calculation, explaining that such a

calculation "distorts reality" in situations in which "a very small

proportion of the population is black."  Id. at 24 (quoting United

States v. Whitley, 491 F.2d 1248, 1249 (8th Cir. 1974)) (internal

quotation marks omitted); see also id. ("[T]he smaller the group

is, the more the comparative disparity figure distorts the

proportional representation.").  Hafen distinguished LaRoche v.

Perrin, 718 F.2d 500 (1st Cir. 1983), which did use a comparative

calculation, because that case "did not adopt the comparative

disparity analysis to deal with . . . the situation in which the

group allegedly underrepresented forms a very small proportion of

the total population."  Id. at 24 n.3.  Finally, the court also

noted an additional reason why the comparative disparity

calculation was inappropriate: "A small variation in the figures

used to calculate comparative disparity can produce a significant

difference in the result, and the appellees have demonstrated that

there is reason to doubt the accuracy of the figures on which

appellant would have us rely."  Id. at 24.

    Hafen's rejection of comparative disparity was reaffirmed

in United States v. Pion, 25 F.3d 18 (1st Cir. 1994), which also

involved the Eastern Division's Plan.  Pion argued that his Sixth

Amendment rights were violated because, although 4.2% of the

Eastern Division's residents were Hispanic, "only 0.99% of all

persons responding to the juror questionnaire during 1992, and

0.80% of those appearing for juror orientation, were Hispanic." 

Id. at 22. The court found that Pion failed to establish

"systematic exclusion," the third prong of the Duren test, since

"there can be no reasonable inference that the relatively small

Hispanic underrepresentation at jury orientation is attributable to

anything other than the randomness of the draw from either the

resident lists or the Master Jury Wheel."  Id. at 22-24.  Although

the court did not rely on the second prong of the Duren test in

rejecting Pion's claim, it rested its conclusion that the

underrepresentation was "relatively small," id. at 24; see also id.

at 24 n.7, on what Pion calculated was a 3.4% absolute disparity

between the "Hispanic representation in the relevant general

population" and the "Hispanic representation among persons

appearing for juror orientation," id. at 23.  The court made a

point of citing Hafen's reasons for rejecting a comparative

disparity calculation where the underrepresented group is small or

where the accuracy of the relevant figures is in doubt.  See id. at

23 & n.5 (stating that Pion's figures, which produced a comparative

disparity of 81%, were not accurate).  The vitality of Pion has

recently been reaffirmed.  See United States v. Rodriguez, 162 F.3d

135, 148 (1st Cir. 1998); United States v. Lopez, 147 F.3d 1, 2

(1st Cir. 1998).

    This court's choice of absolute disparity over

comparative disparity in these cases is in keeping with the choices

made by many of our sister circuits.  See generally Detre, supra,

at 1919-20 ("While not explicitly endorsing any of the mathematical

tests, the [Duren] Court seems to have considered only absolute

disparity. . . . The majority of courts have looked to absolute

disparity or . . . [a similar] standard[] to determine whether

underrepresentation of a group is substantial for purposes of the

fair cross-section guarantee.").  At least six circuits have

endorsed the absolute disparity or closely related "absolute

impact" method of calculating underrepresentation (although some

have also noted that even were comparative disparity used, the

number presented would not be enough to demonstrate a problem with

the jury selection process at issue).  See United States v.

Shinault, 147 F.3d 1266, 1272-73 (10th Cir.) (stating that "[i]n

this circuit, absolute disparity . . . is the starting place for

all other modes of comparison," noting the flaws in both disparity

approaches, and concluding that neither the absolute nor the

comparative disparities calculated demonstrate a constitutional or

statutory violation (internal quotation marks omitted)), cert.

denied, 119 S. Ct. 459 (1998); United States v. Rioux, 97 F.3d 648,

655-56 (2d Cir. 1996) ("Although we have admittedly waffled on this

issue in the past, the law in this Circuit strongly suggests the

absolute disparity/absolute numbers approach is appropriate in this

case."); United States v. Ashley, 54 F.3d 311, 313-14 (7th Cir.

1995) (applying absolute disparity); United States v. Sanchez-

Lopez, 879 F.2d 541, 547 (9th Cir. 1989) ("[W]e have consistently

favored an absolute disparity analysis and have rejected a

comparative disparity analysis."), quoted in Thomas v. Borg, 159

F.3d 1147, 1150 (9th Cir. 1998); Ford v. Seabold, 841 F.2d 677,

683-84 (6th Cir. 1988) (conducting an absolute disparity analysis

but relying on the third Duren prong to reject the fair cross-

section claim); United States v. Clifford, 640 F.2d 150, 155-56

(8th Cir. 1981) ("This court has not seen fit to adopt the

comparative disparity concept as a better means of calculating

underrepresentation."), cited in United States v. Rogers, 73 F.3d

774, 775-77 (8th Cir. 1996) (acknowledging that the panel is bound

by circuit precedent, but arguing that comparative disparity is

superior for dealing with small distinctive groups).

    A few circuits have either not chosen between the two

methodologies or have taken different approaches.  See United

States v. Lewis, 10 F.3d 1086, 1090 (4th Cir. 1993) ("[I]n order to

be fair and reasonable, the disparity between the proportion of

eligible whites selected for [the] master jury wheel and [the]

proportion of eligible minority persons selected must not exceed

twenty percent."  (internal quotation marks omitted)); Ramseur, 983

F.2d at 1231-35 (considering comparative disparity and absolute

disparity, without favoring one over the other, in the course of

resolving equal protection and Sixth Amendment challenges).

    Many of the courts that have endorsed an absolute

disparity or absolute impact test have also echoed the Hafen

court's criticisms of the comparative disparity measure.  See,

e.g., Thomas, 159 F.3d at 1150 ("[T]he comparative disparity test

is strongly disfavored in the Ninth Circuit on the ground that it

exaggerates the effect of any deviation."); United States v. Pepe,

747 F.2d 632, 649 n.18 (11th Cir. 1984); cf. Smith v. Yeager, 465

F.2d 272, 279 n.18 (3d Cir. 1972) ("[T]he comparative approach

reaches absurd results in [a case in which] . . . the [black]

population at the time was 4.4% of the total, and [black] jury

participation ranged as low as 2% of the jury list").

    Royal acknowledges that the absolute disparity standard

is the "existing standard used in this Circuit," and does not make

a serious attempt to distinguish Hafen and Pion from the case at

hand, but urges this court to "change" the standard, noting that

"[t]he absolute disparity standard . . . can have the harsh effect

of sanctioning the total exclusion of members of a minority group

within the community when that group's percentage of the

composition of the population is very low."  Appellant's Brief at

21.  However, "[i]t is axiomatic that, '[i]n a multipanel circuit,

newly constituted panels are, for the most part, bound by prior

panel decisions closely on point.'  This principle applies in

criminal as well as civil cases."  United States v. Graciani, 61

F.3d 70, 75 (1st Cir. 1995) (citation omitted) (quoting Williams v.

Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)). 

    There are two exceptions to this stare decisis rule:  (1)

"[a]n existing panel decision may be undermined by controlling

authority, subsequently announced, such as an opinion of the

Supreme Court, an en banc opinion of the circuit court, or a

statutory overruling"; and (2) "authority that postdates the

original decision, although not directly controlling, [may]

nevertheless offer[] a sound reason for believing that the former

panel, in light of fresh developments, would change its collective

mind."  Williams, 45 F.3d at 592; see also Irving v. United States,

162 F.3d 154, 160 (1st Cir. 1998) (en banc).  Royal does not

expressly invoke either of these exceptions, and, in any event,

neither of them is applicable.  To the extent that the absolute

disparity mode of analysis is open to criticism on statistical or

logical grounds, see, e.g., United States v. Jackman, 46 F.3d 1240,

1247 (2d Cir. 1995) (noting that absolute disparity ignores the

size of the allegedly underrepresented group); United States v.

Levasseur, 704 F. Supp. 1158, 1163 & n.7 (D. Mass. 1989) (same),

this criticism is not by any means a "fresh development."  Indeed,

the Hafen court directly acknowledged that complete exclusion of a

small distinctive group will result in only a small absolute

disparity, and nevertheless chose to apply the absolute disparity

test to the case before it.  See Hafen, 726 F.2d at 23-24.

    We accordingly employ the absolute disparity test to

assess Royal's fair cross-section claim under the second prong of

the test under the Sixth Amendment and the Act.  Royal argues that

"[a]lthough Blacks constitute 4.86% of the 1990 United States

Census count for the total population of all persons 18 years and

over in the . . . Eastern Division, they comprise only 1.89% of the

prospective jurors on the [1994] Master Jury Wheel, . . . only 2.2%

of all prospective jurors" who were not deemed exempt,

disqualified, or excused, and "only 2.9% of the jurors who appeared

for jury orientation."  Appellant's Brief at 35.  Of these

percentages, the 1.89% figure yields the highest absolute

disparity:  2.97% (4.86%, Royal's baseline population figure, minus

1.89%).  Even assuming arguendo that Royal's numbers and

calculations are all correct and that he has provided the

appropriate numbers to plug into an absolute disparity

calculation, we conclude that the absolute disparity of 2.97% is,

given the circumstances of this case, not meaningfully

distinguishable from the 2.02% absolute disparity accepted in

Hafen.  It is therefore insufficient to satisfy Royal's burden

under the second prong of Duren.  See Hafen, 726 F.2d at 23-24;

cf., e.g., Shinault, 147 F.3d at 1272-73 (accepting an absolute

disparity of 2.56% and comparative disparity of 50.09% for blacks,

who were 5.11% of the voting age population); United States v.

Suttiswad, 696 F.2d 645, 648-49 (9th Cir. 1982) (accepting an

absolute disparity of 2.8% for blacks, who were 9.3% of the

population; an absolute disparity of 7.7% for "Spanish" persons,

who were 11.9% of the population; and an absolute disparity of 4.7%

for Asians, who were 8.3% of the population).  Because we decide

this case under Duren's second prong -- fair and reasonable

representation -- we do not reach the issue of systematic exclusion

under Duren's third prong.  See Hafen, 726 F.2d at 24.

    Royal argues that the Massachusetts resident lists do not

include an adequate number of blacks, that the selection process

fails to provide for follow up on nondeliverable and nonreturned

qualification forms even though a disproportionate number of such

forms are traceable to areas with significant black populations,

and that ten black prospective jurors were excused without a reason

recorded.  Although such arguments have been briefed under the

"systematic exclusion" rubric, an appellation that adds nothing to

those arguments given our holding, we nevertheless briefly consider

whether Royal has identified a "substantial failure to comply with"

any provision of the Act besides the fair cross-section

requirement.  28 U.S.C.  1867(a).  "A substantial failure is one

that contravenes one of . . . two basic principles . . . : (1)

random selection of jurors, and (2) determination of juror

disqualification, excuses, exemptions, and exclusions on the basis

of objective criteria.  Technical violations, or even a number of

them, that do not frustrate the[se] . . . requirements and do not

result in discrimination and arbitrariness do not constitute a

substantial failure to comply."  United States v. Savides, 787 F.2d

751, 754 (1st Cir. 1986); see also United States v. Ramirez, 884

F.2d 1524, 1530 (1st Cir. 1989) ("The test . . . for a substantial

violation is whether it 'either allowed discriminatory selection of

jurors or otherwise prevented jury panels from consisting of fair

cross sections of the community.'"  (quoting United States v.

Bearden, 659 F.2d 590, 602 (5th Cir. Unit B Oct. 1981))); H.R. Rep.

No. 90-1076 (1968), reprinted in 1968 U.S.C.C.A.N. 1792, 1793-94.

    The use of the resident lists cannot be such a

substantial failure to comply with the Act; Congress specifically

endorsed the use of resident lists for Massachusetts.  See 28

U.S.C.  1863(b)(2) ("The plan for the district of Massachusetts

may require the names of prospective jurors to be selected from the

resident list provided for in chapter 234A, Massachusetts General

Laws, or comparable authority, rather than from voter lists.").  

The failure to follow up on the qualification forms, enclosed with

summonses, that are not completed and returned does not constitute

a substantial violation of the Act in this case, where no fair

cross-section violation has been established.  See 28 U.S.C.

 1864, 1866; United States v. Gometz, 730 F.2d 475, 479-82 (7th

Cir. 1984) (en banc); United States v. Santos, 588 F.2d 1300, 1303

(9th Cir. 1979).

    More troubling is the excusing of ten black prospective

jurors without a recorded reason.  However, there is nothing to

suggest that subjective criteria were used to excuse these jurors

(for instance, Royal has provided no data on the number of nonblack

jurors who were excused without a recorded reason), see 28 U.S.C.

 1862 ("No citizen shall be excluded from service as a grand or

petit juror in the district courts of the United States . . . on

account of race, color, religion, sex, national origin, or economic

status."), and the "opportunity to err" that exists here is not

enough to establish a substantial failure to comply with the Act. 

Savides, 787 F.2d at 754-55 (excusing the court's error in using "a

commercial mailing firm to select the names of potential jurors"

and stating that "a mere opportunity to err or discriminate in the

jury selection process [does not] constitute[] a substantial

failure to comply with the policy and purposes of the Act"); cf.

United States v. Gregory, 730 F.2d 692, 700 (11th Cir. 1984);

United States v. Bearden, 659 F.2d 590, 607-08 (5th Cir. Unit B

Oct. 1981); United States v. Pleier, 849 F. Supp. 1321, 1333 (D.

Alaska 1994) (noting that some recording errors involving the

marking of jurors as "absent" may have occurred, but concluding

that these errors "reflect[] only some of the unavoidable 'play' in

the jury selection system" (quoting Hamling v. United States, 418

U.S. 87, 138 (1974))).  But see United States v. Calabrese, 942

F.2d 218, 229 (3d Cir. 1991).  Although the number of prospective

black jurors was admittedly small, the recording errors were

nevertheless "too few in number, too insignificant, too desultory,

to constitute a substantial violation of the Act."  United States

v. Marrapese, 610 F. Supp. 991, 1001 (D.R.I. 1985); see also United

States v. Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999).  This

is so even though excusing these ten jurors was apparently done by

the clerk rather than by a district court judge.  See 28 U.S.C.

 1866(c); Ramirez, 884 F.2d at 1530 & n.6.

                              III

    Royal has argued that he is entitled to a new trial

because his jury was selected through a process that did not

produce a fair cross-section as is guaranteed by the Sixth

Amendment and the Act.  We have found that he is not entitled to a

new trial because he established no such violation.  There is a

difference between what violates the law and what, while not in

violation, is still a situation leaving much to be desired.  The

statistics presented -- that in 1994 fewer than 200 persons who

identified themselves as black actually presented for jury duty,

out of more than 5000 prospective jurors appearing in the Eastern

Division -- are disquieting.

    The District of Massachusetts may wish to consider

whether taking additional steps that are responsive to the issues

that Royal has identified, such as sending follow-up postcards to

prospective jurors who do not return their qualification forms,

would serve the goals of "assurance of a diffused impartiality,"

encouragement of "public confidence in the fairness of the criminal

justice system," and "civil responsibility."  Taylor, 419 U.S. at

530-31 (internal quotation marks omitted); see also Anaya v.

Hansen, 781 F.2d 1, 7 (1st Cir. 1986) ("[T]here is a difference

between the optimal results which particularly well-administered

jury plans . . . can achieve, and the minimum which the

Constitution requires."); United States v. Reyes, 934 F. Supp. 553,

566 (S.D.N.Y. 1996) ("[A] finding that the above disparities are

not unconstitutional is not the same as an endorsement of such

discrepancies.").  We also note that careful recordkeeping,

including recording the reasons for disqualifications, exemptions,

and excusals, "constitutes an important means for checking on the

operation of the selection system."  H.R. Rep. 90-1076, reprinted

in 1968 U.S.C.C.A.N. 1792; see also 28 U.S.C.  1865, 1866(d).

    Nevertheless, we have carefully considered all of Royal's

arguments, and find no constitutional or statutory infirmity that

would warrant a new trial.  The district court's denial of Royal's

motion for a new trial is therefore affirmed.