The opinion of the court was delivered by: TENNEY
The defendant, Karl R. Huber, has moved to quash the indictments handed up against him by grand juries
of this district on grounds that those juries were selected by a process that constitutes a "substantial failure" to comport with the Jury Selection and Service Act of 1968 ("the Act"), 28 U.S.C. § 1861 Et seq.; Id. § 1867(d). Although this motion was originally proffered with seven other pretrial motions on January 11, 1978, logistical problems attending the analysis of computerized juror-selection records for this district required the Court to give the defendant repeated extensions to perfect his argument. The motion was finally submitted on August 24, 1978; the Government responded; and an evidentiary hearing was scheduled. Shortly before the date of the hearing, however, the defendant moved the Court to "postpone final consideration of this motion, and adjourn the related evidentiary hearing . . . until the conclusion of trial in this case, should those proceedings result in conviction." Affidavit of Barry A. Bohrer, sworn to September 8, 1978, P 1 ("Bohrer Affidavit I"). The request was based on the defendant's admission that there is "reason to doubt the completeness of the methods employed" to obtain statistics offered in support of one prong of his attack on jury selection, I. e., that people of Hispanic origin are impermissibly underrepresented in the jury panels of this district. Id. P 8. The defendant stated that as a result of this methodological flaw he could not "At this time . . . present persuasive, analytically valid evidence of the populations of the Southern District at large and of the jury pool." Id.
The Court conferred with both parties on September 11, 1978, the date on which the evidentiary hearing would have begun but for the defendant's request for postponement. On the basis of its initial review of the materials already submitted, the Court instructed the defendant to make an offer of proof concerning his allegations that Hispanic people are impermissibly underrepresented in the jury pool, to brief the pertinent law on the point, and to rebut the Government case presented in opposition to the various other challenged aspects of jury selection, I. e., failure to maintain and preserve records, usurpation of judicial functions by the jury clerk, failure of the Plan for the Random Selection of Grand and Petit Jurors in the United States District Court for the Southern District of New York ("the Plan") to comport with the Act, failure of the clerk to comply with the Plan, and constitutional impermissibility of the Act's residence requirement.
The defendant has now complied, and the Court concludes upon the information now before it that nothing could be gained by postponing the determination of this motion until after trial, that the defendant has not raised a colorable claim warranting a hearing, and that for the following reasons the motion to quash the indictments must be denied.
Jury Selection Procedure in the Southern District
Pursuant to 28 U.S.C. § 1863(a), a "Reviewing Panel" consisting of the members of the Judicial Council of the Second Judicial Circuit of the United States and the Chief Judge of the Circuit adopted, on March 5, 1969, the instrument that now governs jury selection in this district.
The Plan tracks the Act in all respects. In the aspects pertinent to the matter at bar, the Plan provides that the "Clerk," defined as Clerk of the Court or the Deputy Clerk for juries ("Jury Clerk"), shall manage the jury selection under the supervision of the Chief Judge of the District Court ("Chief Judge"), Arts. I & II, See 28 U.S.C. § 1863(b)(1); affirms that the "Judges of the Court find that the persons whose names appear on the voter registration lists (of the eleven counties comprising the Southern District) for the last Federal or State general election represent a fair cross section of the community in the District," Art. III A; See 28 U.S.C. § 1863(b)(2); specifies "detailed procedures to be followed by the . . . clerk in selecting names" randomly from the voter registration lists which make up the pool from which jury lists are drawn, 28 U.S.C. § 1863(b)(3); and provides for a "Master Jury Wheel" into which the randomly selected names are placed. 28 U.S.C. § 1863(b)(4).
The "detailed procedures" outlined in the Plan result in the selection of jurors by the following method:
1. An estimate is made of the number of jurors who will be required for four years' service.
2. That number of names is drawn from county voter registration lists, each county list providing a portion of names in the same proportion as that county's registration list bears to the entire number of persons registered to vote from all eleven counties.
3. The drawing of names from the voter registration lists is accomplished through a combination of manual and electronic activities, a mode explicitly sanctioned by the Plan. Art. III A (d). The following method is prescribed: The total number of registered voters is divided by the number of jurors who, it is estimated, will be needed for the Master Jury Wheel. The product of that division is referred to as the "quotient." When that quotient is established, cards bearing numbers from one (1) to the quotient number are placed in a jury drum or box. The Jury Clerk then draws a number from that box to establish the "starting number" for selection from the voter registration lists. From that base line starting number, names are drawn off the voter registration lists at intervals equal to the quotient number until the four-year estimate is reached. The result is a "Master Jury List" which is placed in a "Master Jury Wheel."
From the Master Jury Wheel, the Clerk is to draw the names and addresses of those to whom questionnaires will be sent in order to make up grand and petit venires. This second selection of "Qualified Jurors" to make up the "Qualified Jury Wheel" is to be accomplished in substantially the same fashion as initial selection from the voter registration lists. The Plan mandates that "once or twice each year, or more frequently, if necessary, at times to be determined by the Chief Judge," the Jury Clerk use the same starting number and quotient system to draw names for the Qualified Jury Wheel based on the anticipated need for jurors for the next following period (plus a margin to compensate for unavailable or ineligible voters). At this point the Jury Clerk deviates from the Plan in practice, although not in substance. The Jury Clerk states that he knows through experience that "it is necessary to use one-eighth of the total master jury wheel every 6 months . . . in order to generate enough qualified jurors for the qualified jury wheel for use during that period." Affidavit of Clayton George Cornelius, sworn to August 30, 1978, P 9 ("Cornelius Affidavit"). Therefore, instead of selecting qualified jurors from the Master Jury List every six or twelve months as needed, the Jury Clerk uses, for each six-month period, one of eight reels of Master Jury Wheel names prepared in advance by the Data Services Division of the Automated Data and Telecommunication Service, General Services Administration ("G.S.A."). Apparently these reels are prepared without the use of a "starting number," but the computer expert who supervises this procedure for the G.S.A. states that the computer is programmed to take "names according to the quotient of 8 (I. e., representing the 8 reels) by county from the entire master jury wheel and (to distribute) them into 8 groupings or reels." Affidavit of Michael Sutera, sworn to August 31, 1978, P 10 ("Sutera Affidavit").
The defendant quarrels with this method, alleging that it deviates from the six-month-interval "random selection" envisioned in the Act because, Inter alia, the "total number of names (in the Master Jury Wheel) are divided by G.S.A. into 8 equal divisions containing an equal number from each of the 11 counties in the District," and the Jury Clerk then selects one of these "quasi-alphabetized" divisions, or reels, for refinement into the Qualified Juror List for the next six months. Affirmation of Thomas R. Warman, submitted August 24, 1978, P 20 ("Warman Affirmation").
What evil there can be in doing by computer in advance and in toto what might be done in smaller lots manually is difficult for the Court to see. Although the explanations of computer procedure from both sides are not particularly illuminating, apparently each county's voter registration list is processed for division into eight segments; in the processing the names are selected from these county lists at intervals that correspond to the direction for a "quotient number"; the eleven segments of one-eighth of each county's list are combined to make one reel; and one such combined reel serves as the pool from which qualified jurors are chosen for the next six-month period. Indeed, the method employed "results in exactly the same lists as if, in accordance with Article III C (of the Plan) the process had been performed on seven separate occasions once every six months." Sutera Affidavit P 10.
4. Once the qualified juror pool reel for the next six months is in the Jury Clerk's possession, the persons named on the list are sent jury qualification questionnaires. The completed questionnaires are returned to the Jury Clerk to be reviewed initially by him and "finally evaluated by the Chief Judge" for eligibility. Plan, Art. III C. Those who are eligible for service constitute the final "Qualified Jury Wheel."
5. The Plan provides that the Chief Judge determine whether a person is "unqualified for, or exempt, or entitled to be excused from jury service" pursuant to criteria established elsewhere in the Plan. Art. VI.
6. Grand and petit juries are drawn from the same "Qualified Jury Wheel" although the names so drawn are then kept separately. Art. VII B, as amended. Those to be selected for service on particular grand or petit ...