Reargued May 14, 1976. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (TRENTON) C.A. No. 74-179.
Van Dusen, Adams and Hunter, Circuit Judges. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Gibbons, Circuit Judge. Van Dusen, Circuit Judge, dissenting and concurring in part. Hunter, Circuit Judge, concurring and dissenting in part.
Trial by jury is one of several important protections standing between persons accused of crime and the weighty power of the state to punish those convicted of having committed crime. The right to trial by jury is provided for within the Constitution as originally adopted*fn1 and in the Bill of Rights as well.*fn2 It has been guaranteed for federal and state prosecutions since the early days of the Republic.*fn3 Indeed, the right has been characterized as "fundamental to the American scheme of justice. . . ."*fn4
Not only must the trial promised by the Constitution take place before a jury, but it must be a speedy and public trial, and the jury must be impartial. At least in federal prosecutions, it is necessary that the jury be drawn from the state and from the federal judicial district in which the crime was committed, and the district from which the jury is chosen must have been previously ascertained by law.*fn5 These additional safeguards, which go far in establishing the nature of the jury trial the accused shall have, find their origin both in the English common law and in America's own pre-revolutionary experience. For example, the right to be tried by a jury from a particular geographical region, or vicinage, came in part from the practice established in England by the early 1600's, and in part as a reaction to the efforts of the English Crown during the 1760's to bring colonists to London in order to try them for treason.*fn6
The concept of a trial by a jury drawn from a specific geographical area lies at the core of this appeal. First we must ascertain the contours of the doctrine of exhaustion under the facts in the present controversy. Then we must determine whether the constitutional rights of a defendant in a state prosecution are violated when he is indicted for crimes arising out of acts occurring in one county of the state, and is subsequently tried before a jury drawn exclusively from a second county in the state.
Joseph Zicarelli is currently in custody as a result of two sentences imposed by the courts of New Jersey.*fn7 The acts that led to these two convictions were Zicarelli's alleged efforts to protect from prosecution an illegal gambling operation that he controlled in West New York, Hudson County, New Jersey. The convictions were based upon the last two indictments in a series of seven naming Zicarelli as one of the defendants. Each of the seven was returned by a grand jury which, under the applicable New Jersey statute,*fn8 had statewide investigative jurisdiction.
The first of the seven indictments charged that Zicarelli and others had committed a criminal offense in Hudson County. Of the next four indictments, two specified offenses occurring in Hudson County only, one charged offenses in Hudson and Mercer Counties, and one charged offenses in Hudson, Bergen, and Burlington Counties. The crimes set forth in the sixth and seventh indictments occurred in Hudson County and "elsewhere," although the particular acts they referred to were claimed to have taken place in Hudson County alone. The indictments which led to the convictions under review in this Court today charged Zicarelli and others with a conspiracy to corrupt a public official, and with the substantive offenses of bribery of a public official and corruptly aiding, abetting, and causing the payment of bribes.
Under the New Jersey statute that established a statewide grand jury procedure, the venue of trials resulting from indictments returned by such a grand jury is designated by an assignment judge, who is appointed by the Chief Justice of New Jersey.*fn9 The venue of the first indictment was initially laid in Hudson County. Trial on the next five indictments was set by the assignment judge for Mercer County. The Attorney General of New Jersey subsequently filed an ex parte petition with the assignment judge, seeking to move the trial on the first indictment from Hudson to Mercer County. An order effecting that change was entered without notice to the defendants.
Subsequent to that transfer of venue, but before the seventh indictment had been returned, the Attorney General filed another petition, again ex parte, this one seeking to move to Burlington County the trial of the six indictments that had then been returned. Three grounds were asserted in support of the petition: Zicarelli was incarcerated in Burlington County; the principal prosecution witness, Peter Policastro, was in personal danger, and his security and safety could be adequately met in Burlington County; and all six indictments involved common questions of law and fact that could best be disposed of by a single judge. Again without notice to the defendants, the assignment judge entered an order redesignating venue in Burlington County.
Following that change of venue, the seventh indictment was filed, and venue on that indictment was set for Burlington County also.
Shortly thereafter, the defendants moved for an order redesignating venue in Hudson County. The motion was denied, without a hearing, by the judge to whom the cases had been assigned for trial. When the defendants appealed, the New Jersey Supreme Court remanded the matter to the original assignment judge in order to provide the defendants an opportunity to be heard on the matter of venue.*fn10
After a full hearing, the assignment judge held that Burlington was a proper county for purposes of venue. Among the reasons set forth by the court to justify the transfer to Burlington County were the following: the security of Policastro could be better maintained in Burlington County; the sixth amendment to the United States Constitution did not prohibit the laying of venue in Burlington County; there would be less publicity in Burlington County than in Hudson County; there would be an impartial jury in Burlington County that would give defendants a fair trial; and a judge and a courtroom were available for the trial in Burlington County.
The trial was held in Burlington County, and the jury was drawn solely from that county.*fn11 Zicarelli was convicted of several of the counts contained in the last two of the indictments, and was sentenced to two separate terms, which were to be served concurrently.
Zicarelli's first conviction was affirmed by the New Jersey Superior Court,*fn12 and the second conviction was initially reviewed by the Superior Court,*fn13 and ultimately upheld by the New Jersey Supreme Court.*fn14
Zicarelli subsequently petitioned the federal district court for a writ of habeas corpus. Most relevant to our present review are the allegations in the petition that Zicarelli's constitutional rights were violated when he was tried by a jury selected from residents of a county other than the one in which the alleged crimes were committed,*fn14a and that he was denied the right to trial by a jury comprising a representative cross-section of the locale where the crimes took place. The district court refused to grant the writ.
Upon Zicarelli's appeal from that order, a panel of this Court reversed the district court's judgment, and remanded the case with the instruction that the writ should issue unless the state granted Zicarelli a new trial before a jury selected in accordance with the guidelines set forth by the panel. In essence, the panel held that the sixth amendment requires that the jury venire must represent a cross section of the community where the crime was committed, and that the state breached that guarantee by trying Zicarelli before a jury chosen from a venire that did not include residents of the area where the crime occurred and that was demographically dissimilar to the citizenry of that area.
The State of New Jersey then petitioned for a rehearing before the Court en banc, and an amicus brief was filed by the United States, supporting the petition. In view of the importance of the constitutional issues presented by the case, rehearing en banc was granted, and as a result, the opinion and judgment of the panel were vacated.
After full consideration of the questions presented, we have determined that the judgment of the district court must be affirmed, though without prejudice to the institution by Zicarelli of further proceedings in regard to two of his sixth amendment claims.
Before we may move to Zicarelli's substantive arguments, we are required by the habeas corpus statute*fn15 to determine whether he has exhausted his state remedies regarding them.
Zicarelli brought two separate contentions to the Court en banc in his efforts to obtain release from custody, both coming within the general ambit of the sixth amendment. The first is that the trial before a jury drawn from Burlington County violated his right to be tried by a jury composed of residents of the county where the crime was committed; the second is that the procedures employed by the state in assembling the jury violated the cross-section concept of the sixth amendment.*fn15a A third proposition, raised for the first time during oral argument before the en banc Court, is that the "district" from which the trial jury was chosen was not previously ascertained by law, as required by the sixth amendment.
While it was questioned whether the argument based upon the exclusion of Hudson County residents from the trial jury was brought to the attention of the state courts, Zicarelli's counsel stated at oral argument here, and the state's Deputy Attorney General agreed, that the issue had been raised before the New Jersey Supreme Court during the pendency of the appeal in State v. Louf, a companion case.*fn16
There is serious doubt, however, whether the cross section claim was properly presented in any form to the state courts. It does not appear to have been advanced to the trial court or the New Jersey Superior Court,*fn17 but the issue may have been arguably adverted to in the New Jersey Supreme Court by way of reference to a California case, entitled People v. Jones,*fn18 which had been decided while Zicarelli's appeal was pending before the New Jersey Supreme Court. Zicarelli takes this position because the Jones opinion discusses the cross-section as well as the venue aspects of the sixth amendment.*fn19 It is abundantly clear, however, that the previously-ascertained-by-law issue was not brought to the attention of the state courts. Rather, it was raised sua sponte by this Court en banc.
At oral argument, counsel for New Jersey declared that the state was not pressing the exhaustion issue before this Court because he believed that the submission of the Jones opinion to the New Jersey Supreme Court was sufficient to satisfy the exhaustion requirements of the statute.*fn20 This "concession," however, is not dispositive of the issue. First, counsel's statement indicates that he took the transmittal of the Jones opinion to constitute exhaustion as to all sixth amendment claims, and did not consider its impact on the separate contentions that are discrete, and in some respects disparate, parts of the sixth amendment.*fn21 Second, the doctrine of exhaustion is a product of the recognized need for coordination and friction-free relations between separate court systems.*fn22 We have been unable to discover any case where a mere statement from counsel, even from a prosecutor, has been found sufficient to dispose of the element of exhaustion without an independent judicial inquiry.*fn23
In analyzing the exhaustion requirement, we must as a threshold matter, determine whether exhaustion is essential as to each of the sixth amendment issues, or whether the raising of a single sixth-amendment jury-related argument in the state courts allows the federal courts to review habeas claims based upon any sixth amendment jury contention.
The distinction between these two approaches is not an insignificant one. As the Supreme Court recently observed in Stone v. Powell,*fn24 which was decided after the present case was argued before this Court, collateral review of state-court convictions by the federal courts, while certainly needed as a final safeguard against unconstitutional losses of liberty, nevertheless "results in serious intrusions on values important to our system of government."*fn25 Among those values are "the minimization of friction between our federal and state systems of justice, and . . . the maintenance of the constitutional balance upon which the doctrine of federalism is founded."*fn26
Interpretation of the breadth of the statutory exhaustion requirement thus implicates important considerations. Stone highlights the necessity for a searching scrutiny by the federal habeas court of the points that were raised in the state tribunals, in order to ensure that the state system was granted a fair opportunity to confront arguments that are propounded to the federal habeas courts.
The Supreme Court's decision in Picard v. Connor*fn27 provides the initial step in our analysis. Connor had contended to the state courts that his state-court conviction was invalid because the prosecution had not been instituted as a result of an indictment returned by a grand jury. He claimed that the grand jury clause of the fifth amendment had been incorporated within the due process clause of the fourteenth amendment, thus making it applicable to the states. This argument was rejected by the state courts, and Connor petitioned for federal habeas relief. A separate equal protection claim was suggested for the first time in the federal courts.*fn28 The Supreme Court reversed the court of appeals, ruling that a federal habeas court may not entertain an issue presented to it unless the "same claim" had been urged upon the state courts. In order to meet this standard, the Supreme Court stated that the argument brought before the federal court must be "the substantial equivalent" of a claim already presented to the state courts; "the substance of" the claim raised in the federal court must first have been submitted to the state court.*fn29 Following these guidelines, the Supreme Court held that state-court remedies had not been exhausted by Connor with regard to the equal protection contention.
Later decisions of the Supreme Court are helpful in clarifying the scope of the word "claim" in determining whether a contention has first been tendered to the state courts for purposes of exhaustion. The Court has observed that the "method of analysis" asserted in the federal court must have been "readily available to the state court."*fn30 It has held that the petitioner must give the state system the opportunity to resolve the federal constitutional "issues" before he goes to the federal court for habeas relief.*fn31 Following the Picard doctrine, the Second Circuit has ruled that an argument that an arrest warrant was insufficient is "different in substance" from a contention that there was no probable cause for the arrest, although both claims are encompassed by the fourth amendment.*fn32
In view of the criteria that have been developed to ascertain whether a contention has been exhausted at the state level, the argument based upon the exclusion of Hudson County residents from the jury venire would appear to be sufficiently distinct from the cross-section claim and the previously-ascertained-by-law contention, at least in the context of this case, so as to lead to the conclusion that exhaustion of state-court remedies with regard to the first point does not constitute exhaustion with regard to the others.
We recognized that the venue and cross-section requirements have areas of intersection and trace their roots, in some respects, to the same historical sources. But these factors are outweighed by the differences between the two separate aspects of the sixth amendment, especially the distinction between the broadly geographical "method of analysis" included in the venue aspect of the sixth amendment and the essentially demographic inquiry mandated by the cross-section claim.*fn33 Moreover, while the venue and previously-ascertained-by-law components are explicitly set forth in the sixth amendment, the cross-section concept is not. It thus does not appear that each of these three aspects of the sixth amendment constitute "the same claim" or are substantially equivalent for purposes of the exhaustion question.*fn34
The second phase of our analysis is directed to the question whether Zicarelli has exhausted his state-court remedies as to each of his sixth amendment contentions.*fn35 As we have already indicated, it is clear that he has sufficiently presented his venue claim to the state courts whereas it is equally apparent that he has failed to do so as to the previously-ascertained-by-law argument. The cross-section claim, however, provides a more difficult issue - whether a mere transmittal of the Jones opinion to the New Jersey Supreme Court and then a reference to that opinion in oral argument in a companion case is adequate to constitute exhaustion.
Picard makes manifest that for there to be exhaustion "the federal claim must be fairly presented to the state courts."*fn36 We seriously doubt whether the transmittal of the Jones opinion to the New Jersey Supreme Court, followed by a brief reference to that opinion in oral argument, is sufficient to meet this test. While Jones does discuss the cross-section requirement,*fn37 it is a somewhat ambiguous opinion*fn38 in that it often combines discussions of the venue and cross-section aspects of the sixth amendment. And given the fact that Zicarelli's state court briefs deals with the venue issue while wholly ignoring the cross-section contention,*fn39 it does not appear that the mere reference to the Jones opinion fairly presented the cross-section claim to the New Jersey courts, and thus failed to satisfy the exhaustion requirement.
Moreover, we believe that Zicarelli's failure to provide, or to offer to provide, a factual predicate for his cross-section claim at any stage in the New Jersey proceedings casts a further shadow on whether he has fairly presented that argument to the state courts. For a court to determine a claim that a defendant has not been tried by a jury reflecting a cross-section of the community where the crime was committed, it must be apprised not only of the legal contention, but also of the demographic data supporting the contention. Zicarelli did not make such a proffer to the trial court, nor did he state to the appellate courts that he was ready to present such information to the trial court if the cause was remanded for such purposes. Indeed, the first clear reference to the demographic data was made in Zicarelli's brief that was filed in the federal court to support his petition for habeas corpus.*fn40
While the Supreme Court reserved the issue in Picard,*fn41 many courts of appeals have held that state-court remedies are not exhausted if a party submits factual allegations in support of his claim to the federal courts that he has not made to the state courts.*fn42 Indeed, the case for non-exhaustion is stronger here. In the cited cases, petitioners had presented some supporting facts to the state courts and later attempted to advance different and more compelling factual allegations to the federal courts.*fn43 Here, in contrast, Zicarelli failed to raise any of the relevant factual allegations, and instead delayed their initial presentation to his hearing in federal court.
Thus, what Zicarelli's position comes down to in regard to whether he has exhausted the cross-section argument at the state level is this: Although he made no reference to the cross-section claim in his briefs, although he provided no factual basis for a cross-section contention and indeed did not offer to establish such a predicate, the mere reference by counsel for a codefendant to an opinion of a California court which discussed the cross-section point together with the venue argument is sufficient to meet the Supreme Court test. Such an arrangement hardly seems to conform to the Supreme Court criteria of "fairly presenting" an issue. Nor does it appear to satisfy the comity rationale that undergirds the exhaustion rule.
In any event, even assuming arguendo that Zicarelli has exhausted his state-court remedies on the cross-section issue, given the posture of the case as a whole, he should nevertheless make his cross-section claim in the state courts. Zicarelli must present a factual basis to a trial court in support of his cross-section contention. And inasmuch as his previously-ascertained-by-law argument must be heard in a state court, in view of the fact there was admittedly no exhaustion on that point,*fn44 it would best serve the interests of judicial economy and efficiency for Zicarelli to present his cross-section claim at the same time. Otherwise, the previously-ascertained-by-law claim would be proceeding in the state court and the cross-section claim would be proceeding in the federal court concurrently, or else the federal court would have to stay its deliberations until the other court has completed its inquiry.
We now proceed to review the claim that was submitted to the state courts for their consideration, namely, that Zicarelli's sixth amendment rights were abridged when residents of Hudson County were omitted from the trial jury. We do so by first reviewing the history of the sixth amendment, and then by examining the decisions that have dealt with the question whether citizens residing in the area where the crime was committed may be excluded from the jury.
Until the early eighteenth century, jurors for English trials were drawn from the neighborhood, or vicinage, in which the alleged infraction had occurred. The theory of the time was that such jurors would have personal knowledge of the events at issue and in some cases might even investigate the facts. It was only gradually that the English law allowed the introduction of evidence for proof of facts, and not until the late eighteenth century that the jurors were expected to decide the case solely on the grounds of evidence introduced in court.
Jurors who were to adjudicate cases on the basis of their own knowledge could not ordinarily try a crime that had been committed in a neighborhood other than their own. As the practice of introducing evidence in court broadened, however, the need for the jurors to have personal knowledge of the events became less significant. Because of the shift, the geographical area from which the jury was summoned was expanded to include the county at large, and was no longer limited to a particular neighborhood. But even as the Parliament passed laws allowing the trial of certain crimes in counties adjacent to those in which they occurred, and of others at a central location such as London, the concept of the jury of the vicinage remained an important general rule for the trial of criminal cases.*fn45
The principle of trial by a jury of the vicinage was not brought across the Atlantic Ocean from England in any absolute form. In fact, only five of the original thirteen colonies established constitutional limitations on the geographical region from which the trial jury could be drawn. Two of these referred to the trial of facts where they arose; two referred to trial in the county where the crime occurred; and one referred to a jury of the vicinage, although this last may have actually meant only a jury drawn from the state as a whole.*fn46 Nor did the federal Constitution, as originally adopted, specifically guarantee the common law practice of a jury of the vicinage. Article III states only that "the Trial of All Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."*fn47 Thus, in its original form, the federal Constitution "provided for venue, [but] it did not impose the explicit juror-resident requirement associated with the concept of 'vicinage'. "*fn48
Concern that the wording of article III did not guarantee the right to trial by a jury of the vicinage led Congress to give the matter serious attention at an early date. The vicinage concept was one of several upon which Congress deliberated in the summer of 1789, when it was considering a set of amendments to the Constitution and legislation to create the first federal judiciary.
The first draft of section 27 of the judiciary bill, which dealt with juries in criminal cases, did not include a provision that a criminal defendant should be tried by a jury of the vicinage. It was therefore moved in the Senate, which debated the bill first, that section 27 be amended to provide that "'in criminal cases when the punishment is capital, the petit jury shall come from the body of the county where the fact was committed.'"*fn49 The motion to modify the bill in this fashion was defeated. The apparent reason for the defeat, as expressed by James Madison, was that the practice in the state courts on this matter was so diverse.*fn50
On July 17, 1789, the Senate passed the judiciary bill and sent it to the House. Instead of taking it up immediately, the House considered a series of amendments to the judiciary article of the Constitution. Seventeen such amendments were adopted by the House on August 24 and sent to the Senate. One of the amendments provided that all criminal trials should be "by an impartial jury of the vicinage. . . ."*fn51
Ten days after receiving the proposed amendments from the House, the Senate excised the amendment involving trial by a jury of the vicinage. Subsequent efforts to restore that portion of the amendment were voted down on September 9.*fn52 The following day, the Senate returned twelve of the amendments that had been submitted to it by the House. Madison perceived that the non-uniformity among the states with regard to drawing a jury from the vicinage led to "'a dislike to the restraint with respect to vicinage which has produced a negative in that clause.'"*fn53 He further observed that the Senators viewed vicinage as "'either too vague or too strict a term, too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the country. . . . The Senate supposes also that the provision for "vicinage" in the Judiciary Bill will sufficiently quiet the fears which called for an Amendment on this point.'"*fn54
As a result of the disagreement between the two chambers on the amendments to the Constitution, a conference committee was established. The proposal which emanated from the committee ultimately became the sixth amendment, and with regard to vicinage stated only that a criminal defendant is entitled to "an impartial jury of the State and district wherein the crime shall ...