Appeals from judgments of conviction of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, for engaging in a continuing criminal enterprise and for substantive and conspiracy offenses related to the importation, possession, and distribution of marijuana, a controlled substance.
Before: KEARSE and CARDAMONE, Circuit Judges, and WYATT,*fn* District Judge.
These are separate appeals, consolidated in this court, of four defendants-William G. LaChance, William F. Zimmerli, John Schlagenhauf, and Thomas Ciccaglione-named in a superseding indictment returned against them and many other persons by a grand jury in the United States District Court for the District of Connecticut. Appellant Schlagenhauf was named in the superseding indictment as, and is often called in other papers of record, "John Schlaganauf," apparently a misspelling of his surname; for convenience, he will usually be referred to herein as "John." Appellant Ciccaglione will usually be referred to, for convenience, as "Thomas."
This prosecution had its beginnings on September 14, 1983, when the Coast Guard stopped and boarded the sailing vessel "Tho" in Long Island Sound some two miles from the mouth of the Connecticut River in the District of Connecticut. Appellant LaChance was aboard as Captain of the Tho and, after 4,300 pounds of marijuana was found on the ship and seized, LaChance and the two crew members were turned over by the Coast Guard to Drug Enforcement Administration (DEA) agents who placed them under arrest. Marijuana is a Schedule I controlled substance (21 U.S.C. § 812(c) (Schedule I) (c)(10)), the distribution, possession with intent to distribute, and importation of which is unlawful (21 U.S.C. §§ 841(a)(1) and (52).
An indictment was returned on September 2, 1983, by a federal grand jury at Bridgeport in the District of Connecticut. A superseding indictment was returned by the same federal grand jury on March 6, 1984, against the four appellants and many other persons; there were twenty-nine counts in the superseding indictment. The indictment and superseding indictment were assigned to Chief Judge Daly.
The superseding indictment covered a time period from January 1976 to the date it was returned. The subject matter was the importation into the United States of marijuana from the Caribbean and Columbia, and its distribution in the United States, principally in the District of Connecticut. There was a charge against Zimmerli and his brother-in-law Francolini, of engaging in a continuing criminal enterprise (21 U.S.C. § 848); two charges of conspiracy against many defendants, one to import marijuana into the United States (21 U.S.C. § 963) and one to possess and distribute marijuana (21 U.S.C. § 846); and many charges of substantive law violations over a seven-year period for importing marijuana (21 U.S.C. § 952) and for possessing marijuana in the United States with intent to distribute it (21 U.S.C. § 841(a)(1)).
On September 17, 1984, appellant LaChance pleaded guilty to the counts against him in the superseding indictment (counts two, fifteen, sixteen, seventeen, and eighteen) and his plea was then accepted by Chief Judge Daly. In this connection, defendant LaChance was permitted to reserve the right on appeal from the judgment to review of the adverse determination of a motion by him and other defendants to dismiss the indictment to the extent that such motion was based on the improper selection of grand jurors (Fed. R. Crim. P. 11(a)(2)). On November 8, 1984, sentence was imposed on LaChance by the district court; we are told by the government (Brief, p. 4) that the total effective sentence was ten years' imprisonment and a $60,000 fine. On November 15 and 27, 1984, notices of appeal were filed by LaChance. The notice of appeal filed November 15, stated that "LaChance ...hereby appeals...from the Court's denial of his 'Verified Motion to Dismiss Indictment and Stay Proceedings on Grounds of Substantial Failure to Comply with Law in the Selection of Grand and Petit Jurors'....." The notice of appeal filed November 27, 1984, described the appeal as from the order "entered in this action in May 2, 1984 (Denial of Motion to Dismiss for Failure to Comply with Law in Selection of Grand Jurors)." This appeal was given Docket No. 84-1415 in this court.
Trial of the superseding indictment began on September 17, 1984 at Bridgeport before Chief Judge Daly and a jury. The jury returned its verdict on October 17, 1984, against the remaining defendants then on trial.
Appellant Zimmerli was found guilty on counts one through fifteen and eighteen, and not guilty on count twenty-nine. On November 30, 1984, sentence was imposed on Zimmerli by the district court; we are told by the government (Brief, p. 4) that the total effective sentence was eighteen years' imprisonment and a $410,000 fine. On December 6, 1984, a notice of appeal was filed for Zimmerli. This appeal was given Docket No. 84-1435 in this court. We are told in the Brief for appellant Zimmerli (p. 5) that on January 24, 1985, the sentences imposed on counts two and eighteen were vacated, "thereby reducing the 13-1/2 year consecutive sentence by 3 years and cutting the fines imposed by $125,000."
We are told in the Brief for appellant John (p. 2) that the jury found him "guilty on all counts." The record on appeal does not seem to include any transcript of the return of the jury verdict, nor does the Defendants' Joint Appendix. We are told in the Brief for appellant John (p.2) that he was sentenced, among other counts, on count "twenty-one"; we are puzzled because in the superseding indictment shown in the record on appeal (BV I, document 21; "BV" references are to the two brown volumes in the record on appeal) and in Defendants' Join Appendix (A177; "A" references are to pages of the Defendants' Joint Appendix), count "twenty-one" does not charge Schlagenhauf. There is a possible explanation for the apparent mistake. John was charged in count twenty-two of the superseding indictment, and the jury found him "guilty on all counts" (Brief, p.2). According to the judgment of conviction (SA 1; "SA" references are to pages of John's Supplemental Appendix"), John was not sentenced on count twenty-two. Therefore, the sentence on count twenty-one could have been intended to be on count twenty-two. In any event, we assume that the sentence on count twenty-one does not affect the time to be served in prison because it was made to run "concurrently to Counts Eighteen and Twenty-Three" (SA 1).
On November 29, 1984, sentence was imposed on John by the district court; we are told by the government (Brief, p.4) that the total effective sentence was eight years' imprisonment. On December 12, 1984, a notice of appeal was filed for John and for Craig Randall, another defendant in the same superseding indictment and in the same trial. This appeal was given Docket No. 84-1451 in this court. On April 11, 1985, an order of this court was filed dismissing the appeal of Craig Randall on his consent.
Appellant Thomas was found guilty on count twenty-one and not guilty on count eighteen. On November 28, 1984, sentence was imposed on Thomas by the district court; we are told by the government (Brief, p.5) that the sentence was two years' imprisonment and a $15,000 fine. On December 10, 1984, a notice of appeal was filed for Thomas. This appeal was given Docket No. 84-1453 in this court.
We are told by the government (Brief, p.5) that the notices of appeal of the four appellants were all "timely filed."
We affirm the several judgments from which these appeals were taken.
A. The Appeal of William G. LaChance
On September 17, 1984, LaChance pleaded guilty to all counts in which he was charged. Chief Judge Daly accepted his plea. LaChance had properly reserved the right to review the denial of his motion to dismiss the indictment to the extent that such motion was based on the improper selection of grand jurors (Fed. R. Crim. P. 11(a)(2)).
As noted earlier, LaChance filed two notices of appeal. One notice states, and the other indicates, that the appeal is from the district court's order denying his motion to dismiss the indictment for improper selection of jurors.
These notices of appeal raise a question not mentioned by the government, but which should be addressed. By stating or indicating in the notices of appeal that his appeal is from the district court's order of May 2 denying his motion, LaChance failed to comply technically with Fed. R. Crim. P. 11(a)(2). Rule 11(a)(2) allows a defendant who has entered "a conditional plea of guilty" to reserve the right to review of an "adverse determination of any specified pretrial motion" on "appeal from the judgment " (emphasis supplied). Therefore, rather than appealing from the May 2 order, LaChance should have stated that his appeal was from the judgment of conviction entered against him November 19, 1984. Nevertheless, in light of Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978), we conclude that LaChance's appeal is properly before us. In discussing the effect of mistakes in a notice of appeal, the Sanabria Court stated: "A mistake in designating the judgment appealed from is not always fatal, so long as s the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not mislead or prejudiced." Id. at 67 n.21 (citing Daily Mirror, Inc. v. News York News, Inc., 533 F.2d 53, 56 (2d Cir.) (per curiam), cert. denied, 429 U.S. 862, 97 S. Ct. 166, 50 L. Ed. 2d 140 (1976)).
Under his reserved right to review of an adverse determination of a pretrial motion, appellant LaChance makes a single argument for reversal of his conviction: that the trial judge was in error in denying, without an evidentiary hearing, his pretrial motion to dismiss the indictment to the extent that such motion was based on the improper selection of grand jurors. This motion had alleged a "substantial and statistically significant underrepresentation" of blacks and women selected as grand and petit jurors, and women selected as grand jury forepersons, in violation of the "fair cross section requirement" of the Jury Selection and Service Act of 1968 (28 U.S.C. § 1861 and following; the "Act") and of the sixth amendment. The motion had also alleged violations of the Act "which affect the random nature and objectivity of the selection process."
On February 2, 1984, LaChance and other then codefendants filed the "Verified Motion to Dismiss Indictment and Stay Proceedings on Grounds of Substantial Failure to Comply with Law in the Selection of Grand and Petit Jurors" (A71), described above. This motion also sought an evidentiary hearing. A supporting affidavit (A78) by Dr. John Lamberth, a statistics expert, accompanied the motion.
On April 27, LaChance and others filed an "Amended Verified Motion" to dismiss the indictment, etc., to correct an error contained in the original motion of February 2.
On May 2, 1984, Judge Daly denied the "Amended Verified Motion" of LaChance for "lack of a sufficient showing" and without an evidentiary hearing, except that he heard argument on the grand jury foreperson issue and reserved decision on that (A136). It is this ruling, to the extent that it denied the motion to dismiss the indictment for improper selection of grand jurors, which LaChance asserts was error, requiring reversal of his conviction.
By endorsed order, filed July 10, 1984, Judge Daly denied the motion of LaChance as to the grand jury foreperson issue (A141). This was on the basis of the then recent Supreme Court decision in Hobby v. United States, 468 U.S. 339, 104 S. Ct. 3093, 82 L. Ed. 2d 260 (1984), settling the issue. In the same order, Judge Daly described his May 2 ruling as follows (A141):
[T]he Court ruled that, applying the statistical analysis used by the Second Circuit in United States v. Jenkins, 496 F.2d 57, 65-66 (1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1975), the defendants had failed to make an adequate showing on their claims of discrimination in the overall selection of grand and petit jurors.
The contentions of LaChance as to impropriety in the selection of petit juries and of grand jury forepersons ultimately were abandoned, in part because the right to review of an adverse determination of these issues was not reserved at the time LaChance entered his guilty plea, in part (it seems fair to assume) because the conviction of LaChance was not by a petit jury, and in part because the Hobby decision had settled the grand jury foreperson issue. In consequence, these contentions are not now before us, and will not be referred to hereafter.
We take note of jury selection procedures as prescribed by the Act and by the District's plan thereunder, so as to place in context the claims of LaChance of underrepresentation of women and blacks as grand jurors.
The District of Connecticut's Plan for Random Selection of Grand Jurors Pursuant to Jury Selection and Service Act of 1968 (1968 as amended) ("Plan"), was adopted by the judges of the District of Connecticut and approved by the Judicial Council of this Circuit, as required by Section 1863(a) of the Act. Although the Plan was not introduced below and is not part of the Record on Appeal, it is a proper subject for judicial notice.
For the purpose of jury selection, the District of Connecticut is divided into three divisions: the Hartford Division, which draws jurors from the counties of Hartford, Litchfield, Windham, and Tolland; the New Haven Division, which draws jurors from the counties of New Haven, New London, and Middlesex; and the Bridgeport Division, which draws jurors from Fairfield County. Plan at 2; see 28 U.S.C. §§ 1863(b)(3), 1869(e).
Jurors in the Bridgeport Division are drawn from the voter registration lists of Fairfield County. See Plan at 3; see also 28 U.S.C. § 1863(b)(2).
After obtaining the voter registration list, the source list, the first step in the jury selection process is to from the "master wheel." The master wheel is composed of the names of persons selected at random from the source list; these constitute one percent of the source list. 28 U.S.C. § 1863(b)94); Plan at 6. The master wheel is emptied and refilled once every four years. 28 U.S.C. § 1863(b)(4); Plan art. X. The data available to LaChance included the master wheels formed in 1977 and 1981 only. Dr. Lamberth's affidavit accompanying the motion states that "according to information supplied by [Mr. Kevin F. Rowe, then Chief Deputy Clerk in charge of jury matters], all data prior to the 1977 wheel has been destroyed" (A 79). See 28 U.S.C. § 1868 (permitting destruction after four years).
Whenever it is anticipated that jurors will be needed for a pool for service on grand an petit juries, names are drawn at random from the master wheel. 28 U.S.C. § 1864(a); Plan at 6. Each person whose name is so drawn is sent a "juror qualification form," sometimes called a "questionnaire." 28 U.S.C. § 1864(a); Plan at 6-7. According to LaChance's Brief (p.8), those persons who receive and return a questionnaire constitute the "venire." Neither the Act nor the Plan defines "venire," but, for convenience, we shall use the word as defined by LaChance.
The questionnaire requires the prospective juror to answer enumerated question regarding qualifications for jury service. He or she must stated, a month other things, whether an exemption or excusal form juror service is claimed. Qualifications (Art VII), exemptions (Art. VIII), and excused (Art. IX) are set forth in the plan and in the questionnaire. When the questionnaire is returned, a specified district judge "shall determine solely on the basis of information furnished on [the questionnaire] and other competent evidence whether a person is unqualified for, or exempt, or to be excused from jury service." Plan at 3.
Those persons who receive and return a questionnaire and who are not exempted, excused or otherwise disqualified from jury service constitute the "qualified wheel." 28 U.S.C. § 1866(a); Plan at 8.
The Plan provides that from the qualified wheel shall be separately drawn the names of persons to be summoned for service on grand juries and on petit juries. Separate lists are prepared of those summoned for service on grand juries and on peti juries.
We are here concerned solely with the procedure for selecting a grand jury in the Bridgeport Division. The Plan (art. XV) provides in relevant part as follows:
Grand jurors shall be selected, drawn, summoned and impaneled on a "divisional" basis at such time as the public interest requires. The names of all grand jurors summoned for service at each seat of Court will be placed in a Special Jury Wheel from which twenty- three names will be drawn by lot for service on the grand jury panel. Each grand jury shall serve for a period of eighteen months at each seat of Court unless earlier discharged by the Court.
The grand jury which returned the indictment and superseding indictment against LaChance and the other appellants was selected under this procedure, beginning with the master wheel formed in 1981. This means that the names of a pool of grand jurors were drawn at random from the qualified wheel (formed from the 1981 master wheel), and those persons were summoned to appear at Bridgeport at some time earlier than September 21, 1983, when the first indictment was returned. The names of the grand jurors were put in a Special Jury Wheel from which were drawn "twenty-three names...for service on the grand jury panel." We are not informed by the government or in any of the statistics of LaChance how many names were in the Special Jury Wheel from which the twenty-three members of the LaChance grand jury were drawn. We do know that grand juries normally serve for eighteen months and that there are no peremptory challenges. In consequence, it would seem to us that fewer grand jurors than petit jurors would be needed from which twenty-three names are to be drawn.
Master wheels and qualified wheels for selecting grand and petit juries were formed by the Bridgeport Division in 1977 and in 1981 (Plan art. X, as amended; A79). It is undisputed that the grand jury which returned the superseding indictment against LaChance and the other appellants was derived from the master wheel formed in 1981.
The argument to this court for LaChance is that the District court erred in denying his motion to dismiss the superseding indictment without affording him the opportunity to present evidence at a hearing. Although the Brief for LaChance concludes by asking simply for reversal of the judgment against him, we believe that his intent is to ask for reversal and for a remand to the District court for an evidentiary hearing on his claims of improper selection in the Bridgeport Division of the grand jury derived from the 1981 master wheel, which returned the indictment and superseding indictment against him.
Section 1867(a) of the Act states:
In criminal cases, before the voir dire examination begins, or within seven days after the defendants discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
Under Section 1867(d), if the defendant files a motion pursuant to Section 1867(a) "containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the [Act]," then the defendant is "entitled to present in support of such motion the testimony of the jury commission [sic] or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and nay other relevant evidence."
In his motion under Section 1867(a), LaChance submitted a sworn statement that there had been a "substantial failure to comply" with the Act in two ways. First, he stated that the "fair cross section requirement of [the Act] and the Sixth Amendment has been breached"; second, he stated that there had been violations of procedures prescribed by the Act which "affect the random nature and objectivity of the selection process." We consider these allegations in turn.
The sixth amendment affords every criminal defendant entitled to a jury trial the right to trial "by an impartial jury." The Supreme Court has interpreted this right to mean, among other things, that the pool from which the petit jury is drawn must represent a "fair-cross-section" of the community in which the defendant is tried. Duren v. Missouri, 439 U.S. 357, 363, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979). The Act extends this fair cross section requirement of the sixth amendment to the pool from which federal grand jurors are selected: "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." 28 U.S.C. § 1861.
To establish a prima face violation of the sixth amendment's fair cross section requirement, the Supreme Court applies a three-pronged test, under which he 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, 439 U.S. at 364. This test for a prima facie case under the sixth amendment is also applied in determining whether a motion under the Acts states "facts which, if true, would constitute a substantial failure to comply with" the fair cross section requirement of the Act. United States v. Clifford, 640 F.2d 150, 154-55 (8th Cir. 1981); see Taylor v. Louisiana, 419 U.S. 522, 528-30, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975) ("Recent federal legislation [the Act] governing jury selection within the federal court system has a similar thrust [to the sixth amendment's representative cross section requirement]"); United States v. Test, 550 F.2d 577, 584-85 (10th Cir. 1976) (en banc) (Act's fair cross section standard is "functional equivalent of the constitutional 'reasonably representative' standard").
LaChance bases his claim of a fair cross section violation on the Act and on the fifth and sixth amendments. He has spelled out no separate argument on his fifth amendment challenge; in the district court he merely quoted from Justice Powell's dissenting opinion in Castaneda v. Partida, 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977), which states that "[t]he right to a "representative" grand jury is a federal right that derives...from the Fifth Amendment's explicit requirement of a grand jury. That right is similar to the right-applicable to state proceedings-to a representative petit jury under the Sixth Amendment." Id. at 509-10 (Powell, J., dissenting). We will not, therefore, distinguish between the fifth amendment claim and that based on the sixth amendment. Further, because the Duren test governs fair cross section challenges under both the Act and the sixth amendment, our discussion of the statutory challenge also disposes of his constitutional claim.
We now consider the Duren test as applied to LaChance's statement that blacks and women are underrepresented on grand juries in the Bridgeport Division.
Appellant LaChance properly stated in his motion (A74) that both blacks and a women constitute distinctive groups in the community. See Taylor, 419 U.S. at 531 (women); United States v. Jenkins, 496 F.2d 57, 65 (2d Cir. 1974) (blacks), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1975). Therefore, the first prong of the Duren test is satisfied.
LaChance attempted to satisfy the second prong of the Duren test through a statistical presentation in his amended motion, which we show in the following chart:
(6.98% Black Voting Age Population
in District of Connecticut
According to 1980 Census)
Comparative F rom Expected of Occurring
Disparity Number by Chance