The opinion of the court was delivered by: METZNER
The defendant, Paul Guzman, has been indicted for violations of the federal Selective Service laws, in that it is charged that he refused to report for a physical examination and refused to report for induction. 50 U.S.C. App. § 462(a); 32 C.F.R. §§ 1628.16, 1632.14. He moves for an order directing that a hearing be held to determine whether the grand jury which indicted him or the panel from which the petit jury will be chosen to try him has been selected in violation of the Federal Jury Selection and Service Act [the Act], 28 U.S.C. § 1861 et seq., and the Fifth and Sixth Amendments to the United States Constitution. In addition, defendant asks for discovery of certain jury records, dismissal of the indictment, and a stay in the prosecution of his case until the above requested hearing has been held.
The Act requires that each United States district court devise and place into operation a written plan for random selection of grand and petit jurors. 28 U.S.C. § 1863(a). The plan must assure that grand and petit juries in the district be selected at random from a fair cross-section of the community and that no citizen be excluded from jury service on account of race, color, religion, sex, national origin, or economic status. §§ 1861, 1862. 21 years is the minimum age for jury service. § 1865(b)(1).
Prospective jurors are to be chosen from voter registration lists or lists of actual voters within the district. However, the plan must prescribe some other source of names in addition to voter lists where necessary to foster the policy and protect the rights secured by the Act. § 1863(b)(2).
A master jury wheel is created into which the names of those randomly selected are placed, and which is emptied and refilled periodically at times specified in the plan. § 1863(b)(4). Names are drawn at random from the master jury wheel and those determined to be qualified and not exempt or excused pursuant to the district court plan are placed into a qualified jury wheel. The qualified jury wheel is the source from which grand and petit juries are selected. § 1866(a).
A defendant in a criminal case may challenge the district court's jury selection plan on the ground that it substantially fails to comply with the provisions of the Act. § 1867(a). He is entitled to an evidentiary hearing if his moving papers are accompanied by a sworn statement of facts which, if true, would constitute a violation of the Act. § 1867(d). The defendant may discover and inspect the jury records of the district court if necessary for the preparation or presentation of his motion. § 1867(f).
The Southern District Plan, which was formulated pursuant to the Act, went into effect on December 22, 1968. Defendant's objections to the Plan are threefold. He first claims that by setting a minumum age requirement of 21 years the Plan unlawfully excludes persons between the ages of 18 and 21 from serving on juries. Defendant argues that these people have a constitutional right to sit on juries, and that exclusion of them denies him an impartial jury chosen from a fair cross-section of the community.
Defendant's second claim is based on the fact that the Plan provides for emptying and refilling the master jury wheel every four years. Defendant contends that the Act mandates refilling every two years. He argues that the four-year provision has resulted in the exclusion of persons between the ages of 21 and 24 because the master wheel in the Southern District was last filled in 1968. Persons who were then 21 years of age are now 24.
Defendant's final claim is that use of voter registration lists as the sole source of names for jurors in the Southern District has caused a substantial underrepresentation of young persons 24 to 30 because these persons have a significantly lower registration rate than those over 30 years of age.
Although the defendant challenges the Southern District Plan under both the Act and the Constitution, the standards embodied in the Act embrace and go beyond the constitutional requirements. See Fay v. New York, 332 U.S. 261, 287, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947); United States v. Leonetti, 291 F. Supp. 461, 473 (S.D.N.Y. 1968). A challenge to the Plan under the Act, as opposed to a constitutional challenge, need not show that the defendant is a member of the allegedly excluded group or that he has been prejudiced by the exclusion. H.R. #1076, 1968 U.S. Code Cong. & Adm. News, Vol. 2, p. 1806; Thiel v. Southern Pacific Co., 328 U.S. 217, 225, 66 S. Ct. 984, 90 L. Ed. 1181 (1946); United States v. Bryant, 291 F. Supp. 542, 547 (D. Me. 1968). Furthermore, the defendant may challenge the selection process even though the particular jury drawn from the questioned pool be unobjectionable. Thiel v. Southern Pacific Co., supra, 328 U.S. at 225, 66 S. Ct. 984; United States v. Dennis, 183 F.2d 201, 216 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). Finally, the resolution of the statutory challenge necessarily embraces a resolution of any constitutional claims. See United States v. Greenberg, 200 F. Supp. 382, 387 (S.D.N.Y. 1961). Therefore, we need not consider separately the constitutional grounds of challenge asserted by the defendant. If the Plan satisfies the statutory standard, the Constitution is also satisfied.
A defendant in a criminal case is entitled to a jury drawn from "a fair cross section of the community in the district or division wherein the court convenes." § 1861; Thiel v. Southern Pacific Co., supra; United States v. Butera, 420 F.2d 564 (1st Cir. 1970). It is not necessary that the jury actually chosen be representative of the community, but only that the source of names of prospective jurors and the selection process be reasonably designed to produce a fair cross-section. United States v. Van Allen, 208 F. Supp. 331, 334 (S.D.N.Y. 1962); H.R. #1076, supra at p. 1805.
The crux of the inquiry is whether, in the source used in the selection of juries, there has been systematic or intentional exclusion of any cognizable group or class of qualified citizens. Thiel v. Southern Pacific Co., supra, 328 U.S. at 220, 66 S. Ct. 984; Thomas v. Texas, 212 U.S. 278, 283, 29 S. Ct. 393, 53 L. Ed. 512 (1909); Camp v. United States, 413 F.2d 419, 421 (5th Cir.), cert. denied, 396 U.S. 968, 90 S. Ct. 451, 24 L. Ed. 2d 434 (1969). Thus, selection systems which exclude identifiable racial groups or social or economic classes are vulnerable to attack. See Thiel v. Southern Pacific Co., supra ; Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946); Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935). However, perfectly proportional representation is not required, since no source list will be an exact statistical mirror of the community. United States v. DiTommaso, 405 F.2d 385, 389 (4th Cir. 1968), cert. denied, 394 U.S. 934, 89 S. Ct. 1209, 22 L. Ed. 2d 465 (1969); United States v. Dennis, supra, 183 F.2d 201 at 224. The mere fact that a jury selection system is imperfect does not make it invalid. Swain v. Alabama, 380 U.S. 202, 209, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965).
If it is ascertained, however, that any cognizable group is substantially under-represented in the source of names, systematic or intentional exclusion can be inferred. United States v. DiTommaso, supra. The test is to compare the degree of representation of a particular group to that group's percentage of the population. United States v. Butera, supra, 420 F.2d at 569. The cases, however, reveal no precise limits beyond which substantial under-representation will consistently be found. The lowest percentage of under-representation is found in the Butera case, supra, where the court held that a 30% under-representation of women raised an inference of unlawful discrimination.
The major problem raised by defendant's challenge is determining whether his asserted age groups are "cognizable groups." While certain racial and economic groups have been held to be "cognizable groups" for purposes of jury challenges, the cases have dealt gingerly with the methodology used to determine whether other groups are ...