ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 78-0740)
Before Gibbons, Higginbotham and Sloviter, Circuit Judges.
Appellant claims that because his trial in state court took place in a county in which the crime was not committed, with a jury drawn from that county, two requirements of the Sixth Amendment were violated, the requirement that the jury must be drawn from a fair cross section of the community and the requirement that the defendant be given a trial in a district which "shall have been previously ascertained by law."*fn1 We believe neither claim can be sustained and affirm the judgment of the district court dismissing the petition for a writ of habeas corpus.
The relevant facts were set forth in detail in this court's prior opinion on appellant's initial appeal from the district court's denial of his motion for a writ of habeas corpus. See Zicarelli v. Gray, 543 F.2d 466, 468-69 (3d Cir. 1976) (en banc). Briefly, seven indictments were returned against Zicarelli by a New Jersey grand jury with statewide investigative jurisdiction. The venue of the indictments had originally been laid in Hudson and in Mercer Counties, but was transferred to Burlington County in an ex parte proceeding by the assignment judge pursuant to a petition by the Attorney General requesting such transfer under state statutes authorizing such a procedure. N.J.S.A. 2A:73A-1, -2, -8 (1976). A hearing by the assignment judge on Zicarelli's motion to redesignate venue in Hudson County was mandated by the New Jersey Supreme Court. Following the hearing, the assignment judge denied the motion on the grounds that in Burlington County the security of the principal prosecution witness could be better maintained, an impartial jury could be impanelled that would give defendants a fair trial, a judge and a courtroom were available, and venue was not prohibited under the Sixth Amendment to the United States Constitution. Zicarelli was convicted on several counts of the last two indictments which arose out of his alleged efforts to protect from prosecution an illegal gambling operation that he controlled in Hudson County. Zicarelli's first conviction was affirmed by the New Jersey Superior Court, State v. Zicarelli, 122 N.J.Super. 225, 300 A.2d 154 (App.Div.), cert. denied, 63 N.J. 252, 306 A.2d 455, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973) and the second conviction was initially reviewed by the Superior Court, and ultimately upheld by the New Jersey Supreme Court. State v. Louf, 126 N.J.Super. 321, 314 A.2d 376 (App.Div.), aff'd in part, 64 N.J. 172, 313 A.2d 793 (1973) (per curiam).
Zicarelli filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 alleging that his 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, 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 writ was denied by the district court. On appeal, at the oral argument before this court en banc he also claimed that the "district" from which the trial jury was chosen was not previously ascertained by law, as required by the Sixth Amendment. This court, finding that only the venue*fn2 claim had been presented to the state courts, reached only that aspect of Zicarelli's claim on the merits.
We assumed, without deciding, that the provision of the Sixth Amendment guaranteeing trial before a "jury of the State and district wherein the crime shall have been committed" is applicable to the states, and held that Zicarelli's federal constitutional rights were not transgressed when New Jersey tried him before a jury drawn from Burlington County on charges of criminal activity that had occurred in Hudson County. We held that "(t)he petit jury was drawn from both the state and the federal judicial district within which the crimes occurred, and the state-and-district guarantee of the Constitution promises no more." Zicarelli v. Gray, at 482.
We did not reach appellant's claims that placing his trial in Burlington County also violated the cross section requirement and the "previously ascertained" requirement of the Sixth Amendment because we found appellant had not exhausted his state remedies with regard to them. We are satisfied that appellant has now followed the appropriate procedure and has exhausted his state remedies. See State v. Zicarelli, 154 N.J.Super. 347, 351, 381 A.2d 398, 400 (1977), cert. denied, 75 N.J. 601, 384 A.2d 831 (1978). Thus, these two claims are now ripe for adjudication.
Zicarelli's argument that his trial in Burlington County violated his right to a jury drawn from a fair cross section of the community is two-pronged. He claims that his right to a jury representative of the community was violated at the outset when he was tried by jurors drawn from an area which did not include the scene of the alleged crime, and that this would constitute a violation of the Sixth Amendment even if the jury panel had perfectly reflected the narrow "community" in which the trial did take place. In essence, then, this aspect of Zicarelli's cross section claim is a geographic one. The other aspect of his claim is a demographic one, since he claims that the Hudson County population is significantly different in its demographic characteristics than the Burlington County population. He argues that since the exclusion of Hudson County jurors resulted in a panel of jurors along significantly different racial, ethnic, economic and educational lines, this constituted the exclusion of a "distinctive group" or "identifiable segment" of the community, in violation of the Sixth Amendment.
The cross section requirement of the Sixth Amendment, unlike the venue requirement, is not explicitly included in the language of the amendment. Nonetheless, it is established that an essential characteristic of an impartial jury is that the jury be drawn from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S. Ct. 692, 695-98, 42 L. Ed. 2d 690 (1975).*fn3
The requirement of a representative jury was originally articulated as a requirement of equal protection in cases vindicating the right of a black defendant to challenge the systematic exclusion of black persons from his grand and petit juries. See Smith v. Texas, 311 U.S. 128, 129-30, 61 S. Ct. 164, 165, 85 L. Ed. 84 (1940). Later, the Court exercised its supervisory power over federal courts to permit any defendant to challenge the arbitrary exclusion from jury service of his or her own or any other class. See, e. g., Glasser v. United States, 315 U.S. 60, 83-87, 62 S. Ct. 457, 470-73, 86 L. Ed. 680 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181 (1946); Ballard v. United States, 329 U.S. 187, 195, 67 S. Ct. 261, 265, 91 L. Ed. 181 (1946). The principle that a defendant's entitlement to a representative jury is an aspect of the constitutional right to jury trial protected by the Sixth Amendment first emerged in Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893, 1905, 26 L. Ed. 2d 446 (1970). See Peters v. Kiff, 407 U.S. 493, 500 n.9, 92 S. Ct. 2163, 2167, 33 L. Ed. 2d 83 (1972).
The nature of the jury exclusion which was the issue in these cases related to a particular sex, race or class of the population. In Smith v. Texas, supra, blacks were found to have been excluded from the grand jury under a jury selection scheme which permitted wide discretion in selection. In Ballard v. United States, supra, there was purposeful and systematic exclusion of women, whereas in Glasser v. United States, supra, there was alleged exclusion of certain women, those who were not members of the Illinois League of Women Voters. In Thiel v. Southern Pacific Co., supra, the admitted discrimination was the exclusion of those who worked for a daily wage.
The rationale given in these cases for the requirement that the jury represent a fair cross section of the community was that class distinctions and discriminations are abhorrent to the democratic ideals of trial by jury. Thiel v. Southern Pacific Co., 328 U.S. at 220, 66 S. Ct. at 985. As Justice Murphy noted in Thiel, jury competence is an individual rather than a group or class matter. Id. Thus, a claim that the cross section requirement has been violated mandates essentially a demographic inquiry. See Zicarelli v. Gray, 543 F.2d at 474.
If appellant were correct that the cross section claim also comprehends a geographic component, it would, to that extent, perform the same function as the explicit venue provision of the Sixth Amendment. On his previous appeal, we considered appellant's argument that he had a constitutional right to be tried by a jury composed of residents of the county where the crime was committed, and that the exclusion of Hudson County residents from the jury venire violated the Sixth Amendment. We rejected this claim, holding that "the concept that a criminal trial must be before a jury composed of residents of the county where the crime occurred was not deemed to be of sufficient consequence to be guaranteed by the Constitution." Id. at 477-78. Instead it was left to Congress to determine by statute whether jurors should be summoned from the county of the crime, and Congress, which originally included such a provision in the 1789 Judiciary Act, subsequently repealed that requirement in 1862. It was implicit in our discussion that if there was any requirement in the Sixth Amendment that jurors must be drawn from the county of the crime, it must be found, if anywhere, in the venue requirement. It would be anomalous were we to hold that although the explicit venue provision in the Sixth Amendment does not mandate trial by jurors of the county where the crime was committed, the implicit cross section requirement of the same Amendment does. Therefore, we reject appellant's claim that the cross section requirement was violated by the mere fact that Zicarelli was tried by a jury drawn from a panel that did not include residents of Hudson County.
We next turn to Zicarelli's claim that the demographic differences between the population of Hudson and Burlington Counties were of such quality or quantity that a jury venire excluding Hudson County residents and drawn exclusively from residents of Burlington County failed to represent a fair cross section of the community in which the crimes occurred. When Zicarelli presented his cross section claim to the New Jersey courts, he proffered the following census data derived from the 1970 U.S. Census (1970 Census of Population U.S. Dept. of Commerce Characteristics of the Population, Vol. 1, p. 32) to support his allegation:
(a) Hudson County is the smallest and, with nearly 14,000 people per square mile, the most densely populated county in the state. Burlington is the largest county in terms of square miles and, with some 274 people per square mile, one of the most sparsely populated.
(b) Burlington is one of our agricultural counties, with more acres devoted to farming than any other county. Hudson, of course, is largely industrial.
(c) 42.1% of the people in Hudson County are of foreign stock as compared with only 15.4% of the population in Burlington.
(d) In Hudson County some 46.3% of the people have a language other than English as their mother tongue; compared with slightly under 19% in Burlington County. For example, there are seven times as many Spanish speaking people in Hudson as in Burlington.
(e) In Hudson County around 36% of the people have graduated from High School compared with roughly 60% in Burlington County.
(f) In Burlington only 8.8% of the people do not even have a high school education while in Hudson the comparable figure is 23.3%.
(g) People in professional and technical work comprise about 10.3% of the population in Hudson and ...