prospective female jurors to members of the League of Women Voters. There is an old saying that things equal to the same thing are equal to each other. In the District of New Jersey women, as citizens, enjoy the same rights and privileges and are required to perform the majority of the same duties as men. Since both sexes are equally entitled and obligated to perform jury service, they are fungible as far as being impartial for jury duty is concerned. All of the defendants in this case are corporations. Their stockholders include men as well as women. There has been no showing in the evidence upon which the present motion relies that an American woman is intellectually inferior or superior to an American man. There is not and cannot be shown that the indictment in this case resulted from the proportion existing between the sexes on the particular grand jury which returned it. Indeed, it is uncontroverted that the proportion of men and women in the pool of prospective jurors bears no fixed relationship to the proportion between the sexes on any particular jury of 23 which returns the indictment in any case.
In Chance v. United States, 5 Cir. 1963, 322 F.2d 201, cert. den. 1964, 379 U.S. 823, 13 L. Ed. 2d 34, 85 S. Ct. 47 (also a Florida case) women volunteer registrants for jury service were accepted in the United States District Court for the Southern District of Florida. Their names were added to the list of male registered voters, and both sets of names were added to the box when it was replenished. This resulted in there being 394 women volunteers in one county and 1,952 women volunteers in another county. Four women were drawn on a panel of 50 names from which the grand jury was ultimately chosen, and three women actually served on the grand jury which returned the indictment. The Court of Appeals affirmed the District Court in denying a motion to dismiss the indictment upon the ground, inter alia, that a grand jury chosen from names obtained from a list of male registered voters, a list of women registered for jury service, and a list of negro citizens recommended by Negro ministers and business leaders did not reflect systematic or intentional exclusion of any cognizable group. The opinion in Chance, supra, discussed and construed the opinions in Thiel, supra and in Ballard, supra. It pointed out that Thiel "lists six groups or classes which may not be excluded as jurors: economical, social, religious, racial, political, geographical." Chance adopts the view expressed in Gorin v. United States, 1 Cir. 1963, 313 F.2d 641, 644, in referring to a political group the Court in Thiel "meant the members of some defined political party or group." With respect to Ballard, supra, the opinion in Chance has this to say, 322 F.2d at p. 204: "Ballard v. United States held that in states in which women were not disqualified to sit on state juries, the systematic and intentional exclusion of women from federal juries was unlawful. The amendment of the federal statute in 1947 . . . in effect made Ballard controlling in all states, whether women were disqualified from state jury service or not. The effect, therefore, is to condemn the systematic and intentional exclusion of women from federal juries. It is clear that women were not excluded as a matter of fact, much less by any system, from the grand jury here in question. The record indicates that three women served on the panel under attack. . . . At the most, the notion of a jury as a cross-section of the community is a conceptual one. A literal cross-section is neither required nor desired. . . .
"Nobody contends that to obtain a 'cross-section' it would be required that names be taken at random from the totality of the inhabitants of the area in order to comply with 28 U.S.C. § 1861. No particular pattern has been prescribed for use by the jury commission in determining the source of jury personnel, . . . As Judge Learned Hand so cogently stated: '[The term "Cross-section"] means a fair sample; and a sample drawn at random from the whole community will of course represent the distribution of wealth in the community as a whole, as it would represent the distribution of age, height, predisposition to sclerosis, or any other characteristic; but nobody contends that the list must be a sample of the whole community.'" [ United States v. Dennis, 183 F.2d 201 (2d Cir. N.Y. 1950) aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951)] Proportional representation is not necessary, either as a constitutional requirement or to meet the statutory standards for federal courts. United States v. Flynn, 2 Cir. 1954, 216 F.2d 354; citing Hoyt v. Florida, 1961, 368 U.S. 57, 7 L. Ed. 2d 118, 82 S. Ct. 159; Fay v. New York, 1947, 332 U.S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613; Akins v. Texas, 1945, 325 U.S. 398, 89 L. Ed. 1692, 65 S. Ct. 1276; Dow v. Carnegie-Illinois Steel Corp., 3 Cir. 1955, 224 F.2d 414.
The authorities relied upon by movants do not support their contention that the indictment in the case at bar should be dismissed because the grand jury which voted it was improperly constituted and impaneled in that women were excluded therefrom. The evidence fails to disclose any basis for that contention. It was the systematic exclusion of women from the grand jury panel which Chance construed Ballard to have condemned - not a systematically arranged disproportion between the number of men and women in the pool from which the jury wheel was filled. The drawing for the grand jury in the case at bar was from a reservoir consisting of 246 men and 104 women. Of the 23 grand jurors selected four were women and 19 were men. Thus women were not excluded from the grand jury. I, as did the Court in Chance, must construe Ballard as according the usual meaning to the word "exclude" (derivatively, ex - out and claudo - I shut) - to shut out purposely or forcibly; keep out; debar. Movants have not discharged the burden of showing that women were excluded from the grand jury which returned the indictment in this case.
Defendants' reliance upon United States v. Hoffa, D.C. Fla. 1961, 196 F. Supp. 25, which was distinguished in Chance, supra, does not support their contention here. In the Hoffa case, the grand jury which returned the indictment under attack was drawn from a box containing approximately 1,350 names made up of 400 which had been selected prior to June 11, 1959 and 950 thereafter. All of the names in the box were of persons eligible for jury duty. In addition to questioning the qualifications of the jury commissioners, the defendant attacked the array because the commissioner and deputy clerk limited their selection of names for the jury box to those persons who were then registered to vote and, in the case of women, to those who had volunteered for jury service. Under the procedure criticized, the percentage of qualified citizens deliberately excluded from serving on the jury was extremely high. The District Judge, in dismissing the indictment in the Hoffa case, relied on Thiel, supra, and Ballard, supra, concluding, at p. 31, that "It is evident that a jury panel from which all were deliberately and systematically excluded who did not register to vote, in a community where many citizens qualified for federal jury service do not so register, and to likewise exclude all women from jury service except the very few who registered for jury service in the State courts, is not a fair representation of the community." Such facts are not presented in the case at bar.
This Court takes judicial notice of the contents of its records and of the practice and procedure involved in presenting a case to a grand jury. Before any such presentation could be made the representatives of the Antitrust Division of the Department of Justice must necessarily have conducted a broad as well as a meticulous investigation of the practices charged against the defendants during the indictment period, and have taken great pains in the classification of the resulting evidence and its presentation to the grand jury. The resulting indictment should not be lightly dismissed unless the evidence discloses that the grand jury which returned the indictment was not selected and constituted in conformity with the expressed congressional policy and constitutional mandate. Accordingly, defendant's motion number 1 to dismiss the indictment is denied.