The opinion of the court was delivered by: SAROKIN
A hearing, lasting several days, was held to determine the validity of the defendants' factual allegations. The court received expert testimony on the methodology employed to establish the alleged disparities in representation and on the statistical significance of the disparities found. The court also heard testimony from social scientists, the United States Attorney, and several employees of the District Court Clerk's office on the significance of the role of the foreperson.
Although defendants are not members of the classes purportedly excluded from either the grand and petit jury arrays or from the foreperson and deputy foreperson positions, they nevertheless claim that they have standing under the fifth and sixth amendments and under 28 U.S.C. § 1861 to establish deficiencies in the juror and foreperson selection process. To determine whether a defendant has standing, the court must focus on whether the person whose standing is questioned is a proper party to request an adjudication of a particular issue and not on whether the issue itself is justiciable. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S. Ct. 1942, 1952-53, 20 L. Ed. 2d 947 (1968). Resolution of this question is difficult because the same complexities and vagaries that generally inhere in other aspects of justiciability also surround questions of standing. Id. at 98, 88 S. Ct. at 1951. Nevertheless, analysis is simplified by making two inquiries: whether the party alleges that the challenged action has caused him injury in fact, economic or otherwise; and whether the interest sought to be protected by the complainant is arguably within the zone of interests sought to be protected or regulated by the statute or constitutional guarantee in question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S. Ct. 827, 829-30, 25 L. Ed. 2d 184 (1970). These questions will be first considered with respect to defendants' sixth amendment claims.
The sixth amendment guarantees to all criminal defendants the right to a "speedy and public trial, by an impartial jury." U.S.Const. amend. VI. An essential characteristic of an impartial jury is that its members are drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct. 692, 696, 42 L. Ed. 2d 690 (1975). A defendant indicted by an unrepresentative grand jury, cf. United States v. Layton, 519 F. Supp. 946 (N.D.Cal.1981), or convicted by an unrepresentative petit jury, Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), suffers injury because his constitutional and statutory rights to an impartial jury have been violated. The injury stemming from this defect in selection procedures casts doubt on the integrity of the judicial process. Therefore, a defendant has standing to challenge such violations under the sixth amendment even though he is not a member of the excluded or underrepresented class. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 695-96, 42 L. Ed. 2d 690 (1975).
Similarly, defendants have standing under the Jury Selection and Service Act of 1968, to challenge unrepresentative grand or petit jury arrays. 28 U.S.C. § 1867. Standing to assert irregularities under the Act does not depend on whether the defendant is a member of the excluded or underrepresented class. United States v. Marcano, 508 F. Supp. 462 (D.P.R.1980). Thus, under both the sixth amendment and the Jury Selection and Service Act, defendants have standing to challenge the composition of grand and petit jury arrays.
Although defendants have standing to challenge the grand and petit jury arrays under the Constitution and under 28 U.S.C. § 1867, the government contends that defendants do not have standing under either source of law to challenge the exclusion of constitutionally cognizable groups from the positions of foreperson or deputy foreperson. Standing is lacking, the government argues, because the foreperson's duties are purely ministerial and do not have a significant impact on the fairness of the criminal justice system. Therefore, the values of a fair trial and of an untainted judicial process which underly sixth amendment challenges to the composition of jury arrays are not implicated where the claim of exclusion relates only to the foreperson or deputy foreperson positions.
The government's argument confuses standing with a disposition on the merits of defendants' claim. Defendants are contending that the institutional role of the foreperson is so substantial that the person filling the position has the power to alter the "unique qualities and characters of the jury's individual members." United States v. Jenison, 485 F. Supp. 655, 661-62 (S.D.Fla.1979). If defendants succeed in proving that the foreperson position imbues its occupant with such overpowering influence, then it follows that the systematic exclusion of cognizable groups from the position without justification disturbs the values underlying the fair cross-section requirements of the sixth amendment and of 28 U.S.C. § 1861. Because sixth amendment values and the values underlying the Jury Selection and Service Act are arguably implicated by discrimination in the selection of forepersons, defendants have standing to proceed to the merits of their claim.
Although defendants have standing under the sixth amendment and under 28 U.S.C. § 1861, to contest irregularities in the composition of the grand and petit juries and in the selection of grand jury forepersons and deputy forepersons, they do not have standing to assert similar fifth amendment equal protection violations. Standing is lacking under the fifth amendment because defendants are not members of an allegedly excluded class. In Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977), the court, considering a challenge to the grand jury array brought under the equal protection clause of the fourteenth amendment, stated:
(In) order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.
(emphasis supplied). The quoted language from Castaneda was cited with approval by the Court in Rose v. Mitchell, 443 U.S. 545, 565, 99 S. Ct. 2993, 3005, 61 L. Ed. 2d 739 (1979). In Rose, defendants, all of whom were Black, alleged that an equal protection violation had occurred with respect to the selection of grand jury forepersons. The Court found that a prima facie case of discrimination had not been proven and reversed the appellate court.
Defendants argue that Rose is not applicable here and instead urge that Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972), is controlling. In Peters, the Court held that a defendant need not be a member of an excluded class in order to challenge the composition of the grand jury that indicted him. Because the defendant in Peters was convicted at a trial that took place before the sixth amendment was incorporated into the due process clause of the fourteenth amendment, the Court could not rest its decision on sixth amendment grounds. Instead, the Court held that under the due process clause, a criminal defendant, whatever his race, would have standing to challenge the selection system for grand or petit juries if members of any race are arbitrarily excluded from service. Id. at 504, 92 S. Ct. at 2169. The Court reasoned:
It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.
Although the Court in Peters applied standing principles liberally under the due process clause, it specifically refused to consider defendant's equal protection claims. Id. at 497 n.5, 92 S. Ct. at 2165 n.5. Here, defendants' fifth amendment claim is asserted on equal protection grounds. Although the fifth amendment has no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S. Ct. 1225, 1228 n.2, 43 L. Ed. 2d 514 (1975). Thus, where fifth amendment equal protection claims have been raised they have been approached in precisely the same way as equal protection claims under the fourteenth amendment. Id. A classification invalid under the equal protection clause of the fourteenth amendment then, will also be invalid under the due process clause of the fifth amendment. United States v. Gordon-Nikkar, 518 F.2d 972, 976 (5th Cir. 1975).
The approach of various courts to fourteenth amendment equal protection claims has been to require that the defendant be a member of the excluded class before his standing to assert the claim will be recognized. See, e.g., Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977). In a recently decided case, however, United States v. Perez-Hernandez, 672 F.2d 1380, 1386 (11th Cir. 1982), the Eleventh Circuit held that a defendant had standing under the fifth amendment to allege discrimination in the selection of grand jury forepersons even though the defendant himself was not a member of the class allegedly excluded. This conclusion was premised on the court's reading of Peters v. Kiff as an equal protection case. The court found that because the holding of Peters, "is clear and unambiguous and has never been expressly overruled," defendant had standing to assert a fifth amendment challenge to the selection of forepersons. This court agrees that the holding of Peters is "clear and unambiguous," but it is clearly and unambiguously premised on due process, not equal protection. The Court in Peters specifically stated:
407 U.S. at 504, 92 S. Ct. at 2169. (emphasis supplied). The Supreme Court thus found that the defendant in Peters had standing to challenge irregularities in the selection of grand jurors on due process grounds and not, as the Eleventh Circuit has found, on equal protection grounds. This was recognized by Justice Rehnquist in Duren v. Missouri, 439 U.S. 357, 373, 99 S. Ct. 664, 673, 58 L. Ed. 2d 579 (1979), where in a dissent critical of Peters, he stated: "Because the white defendant (in Peters) lacked standing to raise an equal protection challenge to the systematic exclusion of blacks from jury duty, the Court was forced to turn to the due process clause of the Fourteenth Amendment." In fact, as noted previously, the Court in Peters, itself, noted that it was not considering defendant's claims that his own rights under the equal protection clause had been violated. 407 U.S. at 497 n.5, 92 S. Ct. at 2165 n.5.
In alleging that underrepresentation of cognizable groups in the jury selection process violates the equal protection clause, defendants are not really asserting their own rights but instead are asserting the rights of the excluded jurors. Under "pure standing" principles, therefore, defendants would not have standing to assert an equal protection violation. Nevertheless, the court must still consider whether defendants have jus tertii, or third party standing. Under the concept of jus tertii, a third party who suffers "injury in fact" has standing "to assert the constitutional rights of others where it would be difficult for the persons whose rights are asserted to protect themselves adequately by presenting their own grievance before an appropriate court." Tribe, American Constitutional Law, § 3-26. In deciding whether to apply third party standing principles, courts generally examine three factors: "the importance of the relationship between claimant and rightholders, the ability of rightholders to vindicate their own rights, and the risk that the rights of third parties will be diluted." Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 441 (1974).
Defendants argue that Peters provides white defendants with standing to allege the violation of the constitutional rights of the excluded jurors. This argument, however, is premised on a misinterpretation of the case. In Peters, the defendant's own due process rights had been violated because he was denied a jury which was representative of the community. True, in asserting his rights, the defendant vindicated the integrity of the judicial process, but, if anything, this weakens the argument that standing must be conferred on defendants here, who are asserting equal protection violations. First, if the injury alleged is one to the integrity of the judiciary, then an action under the sixth amendment or under the Jury Selection and Service Act is available to redress the wrong.
Secondly, if the injury alleged is the stigma suffered by a member of the excluded class, injunctive relief is available to the class member under the fifth amendment, cf. Brown v. Rutter, 139 F. Supp. 679 (W.D.Ky.1956), or, if indicted, the excluded individual may also on equal protection grounds seek a dismissal of the charges. Cassell v. Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950). Because the injured party can seek for himself or herself a remedy for the alleged wrong, there is no justification for extending jus tertii principles to the facts of this case.
The court therefore concludes that a defendant does not have standing to assert a fifth amendment equal protection challenge if he is not a member of the allegedly underrepresented class. Beal v. Rose, 532 F. Supp. 306, 309-10 (M.D.Tenn.1981). See Guice v. Fortenberry, 633 F.2d 699, 703 (5th Cir. 1980); United States v. Cross, 516 F. Supp. 700, 706 (M.D.Ga.1981). Defendants here do not belong ...