The opinion of the court was delivered by: ALTIMARI
Defendants Waldbaum, Inc., King Kullen Grocery Co., Inc., Supermarkets General Corporation, Inc., and LAMM Food Corp. move pursuant to Fed. R. Crim. P. 12(b) to dismiss the indictments in the above captioned cases on the ground that they were returned by a biased grand jury. In a companion motion, defendants seek an order allowing them to excuse for cause any petit juror who is a high volume coupon user or who regularly used coupons at their stores during the time period covered by the indictments. In addition, they request the Court to conduct extensive voir dire concerning potential jurors' shopping patterns and coupon usage.
Defendants argue that the indictments in question were returned by a biased grand jury because the majority of grand jurors would perceive themselves as victims of the conspiracy alleged in the indictments. Their argument, set out at page three (3) of their moving memorandum of law, goes as follows:
"In spite of the fact that the majority of persons in Nassau and Suffolk Counties would regard themselves as victims of an alleged conspiracy to terminate double and triple coupons -- whether or not there was evidence of such a conspiracy and whether or not it was actually illegal -- the grand jury which returned these indictments was convened in the United States District Court for the Eastern District of New York, which draws its grand jurors in substantial part from Nassau and Suffolk Counties, and thus was composed of the very people who were victims of the alleged crime they were investigating. Yet the Government has admitted that it made no effort to question jurors about shopping habits or to eliminate heavy users of coupons or users of coupons at any of the food retailers being investigated from the grand jury, choosing instead only to exclude employees of retail grocers."
Memorandum in Support of Defendants' Joint Motions to Dismiss the Indictments Because of Grand Jury Bias at 3, (hereinafter "Defendants' moving memorandum of law").
In support of their position, defendants offer the affidavit of Larry Salinas, director of research for defendant Supermarkets General Corporation, Inc. ("SGC"). Mr. Salinas states that Pathmark, a division of SGC, regularly conducts random telephone surveys of consumers on Long Island. (Salinas Affidavit par. 3). He tells us that data from surveys conducted in 1983 shows the following:
(a) 77% of all shoppers in Nassau and Suffolk Counties use one of defendants' stores as a preliminary source of grocers. (Id.); and
(2) In his conservative estimate, 90% of all shoppers in Nassau and Suffolk Counties will shop at one of the defendants' stores at least once a year. (Id. par. 4)
Based on "[n]ational studies
[showing] that seventy to eighty percent of all consumers use coupons occasionally," he estimates that during the time period of the indictments, "at least 60 to 75% of all household units in Nassau and Suffolk Counties used a coupon at one of defendants' stores, and would, therefore, be likely to consider themselves as having been deprived of the opportunity to double or triple their coupon values by the actions charged in the indictments." (Id. para. 6-7)
As defendants made clear during oral argument before the Court, they do not seriously contend that everyone on the grand jury was biased, nor do they contend that any single grand juror was necessarily biased. Rather, relying on Pathmark's consumer survey results they insist that someone on the grand jury must have been biased. Cf. United States v. Thomas, 632 F.2d 837, 846 (10th Cir.), cert. denied sub nom. Harris v. United States, 449 U.S. 960, 101 S. Ct. 373, 66 L. Ed. 2d 227 (1980) ("The defendants state that the grand jury ...