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IN RE ARCHULETA

May 27, 1977.

In the Matter of the Grand Jury Subpoena served upon Pedro ARCHULETA.


The opinion of the court was delivered by: LASKER

MEMORANDUM

LASKER, District Judge.

On November 23, 1976 Pedro Archuleta, a resident of Tierra Amarilla, New Mexico, was subpoenaed to testify before a federal grand jury in the Northern District of Illinois (the "Chicago grand jury") investigating bombings in that district believed to have been committed by members of the Fuerzas Armadas de Liberacion National ("F.A.L.N."). On December 23, 1976 he was served with a second subpoena from that grand jury, ordering him to provide fingerprints, a photograph and palmprints to the Chicago grand jury. After being sworn before that grand jury, advised that he was a "suspect" in its investigation and of certain constitutional rights, the witness refused to respond to the grand jury's questions. On the government's motion to hold Archuleta in contempt, he raised numerous objections to the government's good faith in calling him as a witness; to illegal wiretapping which he claimed underlay the subpoenas and questions; and to the array of the grand jury. These matters are currently being litigated in the Northern District of Illinois.

 On March 29, 1977 Archuleta was served with a subpoena ordering him to appear and testify before the grand jury of the United States District Court for the Southern District of New York (the "New York grand jury"). On April 4, 1977 he moved to quash this subpoena or stay these proceedings until the Chicago litigation is concluded, on the following grounds:

 "(a) the subpoena to the New York Grand Jury is an attempt to circumvent the proceedings which are currently taking place in Chicago;

 (b) The subpoena to the New York grand jury is directed to Movant, a target of the Chicago proceedings, who has stated publicly that he will refuse to testify, and is thus an attempt to incarcerate him without affording him the rights of an accused;

 (c) The issuance of two simultaneous subpoenas in different Districts is unduly harassing, burdensome and coercive and as such deprives Movant of due process by requiring him to litigate and placing his freedom in jeopardy in two distinct jurisdictions conducting duplicative investigations;

 (d) The issuance of the New York subpoena is an attempt to prevent Movant from litigating the serious jury composition issue which is currently before the District Court in Chicago;

 (e) The issuance of the New York subpoena is an attempt to manipulate the situs of the investigation or to 'shop' for a favorable forum on the part of the FBI and the Department of Justice;

 (f) the subpoenas - process of a judicial body - are being used by the executive arm of government, in violation of the separation of powers doctrine to coerce, intimidate and incarcerate Movant."

 In addition, he moves to quash the subpoena on the following grounds:

 "(a) The composition of grand juries in the Southern District shows a serious underrepresentation of Hispanic peoples and thus deprives Movant of Due Process;

 (b) The subpoena constitutes an abuse of the grand jury process in that it seriously threatens Movant's First Amendment rights of association and the free expression of political beliefs...

 (c) The subpoena constitutes an abuse of the grand jury process in that the grand jury is performing the executive function of locating fugitives in violation of the separation of powers doctrine."

 The government responded to this barrage of claims with a memorandum of law and two sets of affidavits. The first affidavit, denoted the "open" affidavit, was submitted by Assistant United States Attorney Thomas Engel and describes the nature of the grand jury's investigation in New York and its reasons for calling Archuleta. In essence, the New York grand jury is investigating bombings believed to have been committed by the F.A.L.N.; one person allegedly responsible for the bombings was a member of an organization - the National Commission on Hispanic Affairs of the Protestant Episcopal Church - to which Archuleta belonged in 1972-73. In addition to the "open" affidavit, the government filed under seal ex parte affidavits from Engel and an FBI agent. Movant has objected to these ex parte submissions; however, the court has not read the ex parte material in the belief that wherever possible matters should be decided without reference to information not subject to adversarial comment and rebuttal.

 After the government response was filed, but before argument on the motions, a news story appeared in the April 17, 1977 New York Times concerning these grand jury investigations into the F.A.L.N. bombings which was based in part on nonpublic information attributed in the article to law enforcement sources. Some of the previously undisclosed information concerned Archuleta directly and was of a highly adverse character. On April 19th Archuleta filed an "Additional Motion to Quash and/or for a Stay and/or Hearing on Governmental Misconduct" on grounds relating to the disclosure of information. The government has responded by affidavit and oral argument to this aspect of the motion to quash as well.

 Finally, Archuleta moved in early May to amend his motion to quash to add a claim that the subpoena to him resulted from information gathered by illegal electronic surveillance. The government has not yet responded to this motion.

 In addition to the motion to quash, four motions to intervene have been filed by: The Board of National Ministries of the American Baptist Church; Nelson Canals, a law student at the University of Puerto Rico and Secretary General of the Committee to Free the Five Puerto Rican Political Prisoners; several ministers of churches in Puerto Rico; and by a collection of some 10-15 organizations and as many individuals claiming various and diverse interests in the outcome of the litigation. The government opposes all the motions to intervene.

 Archuleta's motion to quash is another in a series of recent challenges brought by persons subpoenaed by the federal grand jury investigating the bombing at Fraunces Tavern on January 24, 1975, and other bombings believed to have been committed by the F.A.L.N. In January of this year, grand jury subpoenas were issued to Bishop Milton Wood, and to Maria Cueto and Raisa Nemikan, all members of the National Hispanic Commission of the Protestant Episcopal Church. Both Cueto and Nemikan moved before Judge Pierce to quash these subpoenas on the grounds, inter alia, that their First Amendment rights to free exercise of religion and free association were being violated. On February 4, 1977 Judge Pierce denied the motions and ordered Nemikan and Cueto to testify. In re Grand Jury Subpoena of Wood et al., 430 F. Supp. 41 (S.D.N.Y.1977). Each refused to testify on Fifth Amendment grounds and each was granted immunity. They persisted in refusing to testify and on the government's motion to hold them in contempt, brought before Judge Frankel, argued that the immunity conferred was inadequate to protect Fifth Amendment rights and that the questions put were unlawfully derived from illegal wiretapping. Cueto also raised again the First Amendment objections ruled on by Judge Pierce. After submission of affidavits by the government, Judge Frankel ruled that no illegal wiretapping had occurred, rejected contemnors' other claims and held them in contempt. This order was affirmed by the Court of Appeals. In re Cueto and Nemikan, Grand Jury Witnesses, 554 F.2d 14 (2d Cir. 1977). Nemikan and Cueto remain in custody in civil contempt of the grand jury.

 I.

 Archuleta argues that the subpoena should be quashed because the grand jury has been drawn from an array from which a cognizable group - consisting of Latino and Hispanic Americans - has been systematically excluded, in violation of constitutional and statutory requirements. See U.S.Const.Am. 5; 28 U.S.C. § 1861 et seq. The witness also moves at this time for production by the Clerk's office of certain "information, books and records concerning selection, qualification and summons of people for jury service in this District, in accordance with the provisions of... 28 U.S.C. § 1867(d) and Article X of the 'Jury Plan' now in operation in this district," for use in connection with his challenge to the array. The government opposes Archuleta's application, on the ground that as a witness he lacks standing to challenge the composition of the grand jury.

 The Federal Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, declares it to be 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." Although the statute is not intended to require "precise proportional representation" of every minority and majority group in society, it is intended to assure that no "cognizable group" is systematically excluded from grand jury service. See United States v. Jenkins, 496 F.2d 57 (2d Cir.), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1974). The Act further provides that "No citizen shall be excluded from service as a grand... juror... on account of race, color, religion, sex, national origin or economic status." 28 U.S.C. § 1862.

 To achieve these ends, every district court is required by 28 U.S.C. § 1863 to adopt a plan for the selection of grand and petit jurors, which must provide for use of voter registration or actual voter lists; the plan must also provide for alternative sources of names of eligible jurors in addition to the voter lists "where necessary to foster the policy and protect the rights secured by sections 1861 and 1862..." In accordance with the statute, the Southern District of New York has adopted a plan which provides for the drawing of at least 4,000 names from the registered voters list at random every four years, which names are placed in a "master wheel." Out of this array grand juries are composed by drawing names at random from the master wheel. The wheel is supplemented by additional random drawing of names when necessary and emptied every four years. At that time a New set of names is placed in the wheel from an updated voter registration list. When persons are called to serve as jurors, they are required to fill out a form indicating possible bases for exemption from service, in accordance with 28 U.S.C. § 1865.

 Archuleta claims that in the disposition of requests for exemptions, and in reliance on the voter registration lists themselves, this district's grand jury selection procedures systematically exclude Latino and Hispanic people. (Supplemental Affidavit of Joan Friedland). In support of this claim, Dennis Cunningham, one of Archuleta's counsel, swears on information and belief that in 1972 when the "proportion of Latinos in the general population of the District... was 10.56%, the number of Latinos who served was 27 out of 715, or 3.77%." Archuleta also claims that Latino and Hispanic peoples are "undercounted" in the census for various reasons, and that the disparity between their representation in the general population and on grand juries is even greater. (Chrissman Affidavit)

 To insure compliance with the Jury Selection Act, 28 U.S.C. § 1867 provides that various persons may move to challenge the composition of grand or petit juries. A "defendant" or the Attorney General of the United States in a criminal case may move before trial to dismiss the indictment or stay proceedings on "the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury," § 1867(a), (b), and "in civil cases... any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury." § 1867(c). Archuleta argues that however his status is defined, he must be a party in either a civil or criminal case for purposes of § 1867; he thus claims a right to discovery of the grand jury records pursuant to § 1867(d), which provides that:

 "(d) Upon motion filed under subsection (a), (b), or (c) 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 grand jury, the court shall stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictment, whichever is appropriate. 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."

 Section 1867(f) of the Act prohibits disclosure of grand jury selection records for the wheel currently in use, "except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b) or (c) of this section." *fn1" Disclosure of grand jury selection records in violation of this prohibition is punishable by up to one year in prison. It is therefore evident that Congress intended not to permit disclosure of the type sought here unless the applicant is entitled to move under § 1867(a), (b) or (c) to challenge the grand jury array.

 Archuleta seeks to bring himself within the statute by arguing that the intent of the legislation was to insure "all litigants" an opportunity to challenge the grand jury's composition, and that he is a "litigant" before the grand jury. 1968 U.S. Code Cong. & Admin.News, p. 1792. There is no doubt that if the word "litigant" means only "one who is litigating a matter", then Archuleta is a "litigant" since he is vigorously contesting the validity of the subpoena issued. However, the words of the statutory declaration of purpose make clear that the rights secured by the Act are secured only to "all litigants" of a certain type: namely, "all litigants in Federal courts entitled to trial by jury." 28 U.S.C. § 1861. As a witness subpoenaed to appear before the grand jury, Archuleta is not at this time entitled to a trial by jury on any matter relating to the subpoena. He is therefore not within the class of "litigants" whom the Act was designed to protect.

 This conclusion is supported by the specific language of 28 U.S.C. § 1867(a) and (c). Subsection (a) gives to "a defendant in a criminal case" the unqualified right to challenge the grand jury array as not in compliance with the statute. Archuleta, however, has not even been named as a "target" of the investigation in New York, and is in no sense a "criminal defendant" "entitled to trial by jury." Nor is Archuleta a "party" in a "civil case" within the meaning of subsection (c), which grants the right to challenge only the selection of the "petit jury." Failure to specify that a civil litigant moving under subsection (c) could challenge the grand, as well as the petit jury, indicates that Congress did not intend to include within its definition of parties in civil cases a witness appearing before the grand jury.

 We therefore conclude that Archuleta lacks standing under the statute to challenge the grand jury array at this time. This conclusion does not necessarily mean that he lacks standing as a witness to raise a constitutional challenge to the grand jury composition. The Act specifies that its procedures are the exclusive means by which a defendant in a criminal case, the Attorney General of the United States or a party in a civil case may challenge grand or petit juries; but it also specifies that its own remedies are not exclusive, providing that "Nothing in this section shall preclude any person or the United States from pursuing any other remedy, civil or criminal, which may be available for the vindication or enforcement of any law prohibiting discrimination on account of race, color, religion, sex, national origin or economic status in the selection of persons for service on grand or petit juries." 28 U.S.C. § 1867(e).

 In deciding whether a witness has standing to challenge on constitutional grounds the composition of a grand jury on a motion to quash the subpoena, it is appropriate to consider the range of factors set forth in United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).These include the nature of the witness' interest which is claimed to be invaded or injured; the social interests to be served by permitting a witness to invoke a particular rule or remedy; and the disruption to the legitimate ends of the grand jury which might ensue. Balancing these factors, we conclude that the Constitution does not require that a witness in Archuleta's position be permitted to challenge the composition or selection of the grand jury.

 Archuleta relies primarily on United States ex rel. Chestnut v. Criminal Court of the City of New York, 442 F.2d 611 (2d Cir. 1971) to support his standing to raise this challenge. *fn2" Petitioners there sought a writ of habeas corpus releasing them from a state sentence for criminal contempt of the grand jury for refusing to answer questions. In a footnote, the Court of Appeals, while "agreeing with the premise that the grand jury assumes its greatest responsibility in deciding whether to ...


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