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United States v. Calabrese

argued: April 3, 1991.

UNITED STATES OF AMERICA
v.
MERCHIE C. CALABRESE, JR. A/K/A MERCHIE CALABRESE A/K/A "THE JOKER", JOAN M. CALABRESE A/K/A JONI, JOHN A. CALABRESE, MERCHIE R. CALABRESE, ALPHONS KUBECKI, MERCHIE C. CALABRESE, JR., APPELLANT IN 89-3764, JOHN A. CALABRESE, APPELLANT IN 89-3816



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Criminal No. 89-12E.

Mansmann and Scirica, Circuit Judges, and Pollak, District Judge.*fn*

Author: Scirica

SCIRICA, Circuit Judge

I.

Appellants Merchie C. Calabrese and John Calabrese appeal their convictions for several offenses related to drug distribution.*fn1 While appellants raise several issues on appeal, we discuss in detail only one: the contention that the selection of jurors did not comply with the requirements of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-78 (1988).

II.

Appellants contend that the procedure by which the district court selected the panel of potential jurors violated the Act. The Act governs the selection of grand and petit juries in federal court, and "seeks to ensure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." United States v. Bearden, 659 F.2d 590, 593 (5th Cir. 1981) (citing 28 U.S.C. § 1861), cert. denied, 456 U.S. 936, 102 S. Ct. 1993, 72 L. Ed. 2d 456 (1982). The Act prohibits discrimination "on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. § 1862.

To achieve these goals, the Act provides that each United States District Court shall create a jury selection plan that complies with the Act's requirements. Under the jury selection plan created by the Western District of Pennsylvania, names of potential jurors are taken from voter registration lists. Every two years, the number of jurors that the court believes it will need for the next two years are randomly selected from that list. Those names go on a "master jury wheel," which is maintained for each division of the Western District of Pennsylvania. Every person on the master jury wheel is mailed a qualification questionnaire, which elicits information that would establish whether a juror is qualified under 28 U.S.C. § 1865. That section provides that a juror is deemed qualified unless the juror

(1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district; (2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form; (3) is unable to speak the English language; (4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or (5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.

28 U.S.C. § 1865(b). The questionnaire also elicits information that would provide the basis for excusals on individual requests, which are granted on certain enumerated grounds such as old age or child care responsibility, or for exemptions, which are provided for active duty members of the armed forces, and several other narrow categories. The end result of this winnowing process is a "qualified jury wheel," comprised of those names from the master jury wheel that are not disqualified, exempt, or excused.

When the court requires a jury, a pool of prospective jurors is selected at random from the qualified wheel, and summoned to the court for jury service. A qualified juror may be removed from this group only for the reasons set forth at 28 U.S.C. § 1866(c). That section provides that any person may be

(1) excused . . . upon a showing of undue hardship or extreme inconvenience . . . (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations.

Id. This listing is exclusive and exhaustive. The limitation to certain narrow grounds of excusal and exclusion was designed to implement one of the central goals of the Act, the "determination of juror qualifications, excuses, exemptions, and exclusions on the basis of objective criteria only." H.R. Rep. No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Admin. News 1792, 1793. Earlier approaches to jury selection had treated federal statutory juror requirements as a minimum, and allowed juror selection to be based on additional subjective criteria, such as "good character, approved integrity, sound judgment and fair education." Id. at 1795. This had "produced discriminatory results, especially in relation to the poor and other minorities." Id. Thus, the exclusive nature of the above list constituted a "bulwark against impermissible forms of discrimination and arbitrariness." Id. at 1793; see also National Jury Project, Jurywork: Systematic Techniques § 5.04[4][3][b] (1990).

Challenges to compliance with the Act's selection procedures must be raised before voir dire begins, or within seven days after the party raising the challenge discovers, or could have discovered, the grounds for the challenge. 28 U.S.C. § 1867. Challenges must conform with certain procedural requirements which we discuss later in this opinion.

A remedy is provided in 28 U.S.C. § 1867(d): "If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title." The party raising the challenge need not show prejudice. See United States v. Kennedy, 548 F.2d 608, 612 (5th Cir.), cert. denied, 434 U.S. 865, 54 L. Ed. 2d 140, 98 S. Ct. 199 (1977); House Report, 1968 U.S. Code Cong. & Admin. News at 1806 (noting that a committee amendment "eliminates the need to prove prejudice as a condition of judicial intervention when substantial noncompliance with the act is established").

III.

Because appellants challenge the process by which the panel of prospective jurors was selected, we will set forth that process in some detail. Before voir dire, the trial judge sent a form letter to each of the approximately 300 jurors who had been summoned to appear for jury duty on August 21, 1989, the day on which appellants' trial was scheduled to begin. The letter asked two questions, requesting a "yes" or "no" response on each of them: (1) "Do you know any of the following defendants in this case?" (the letter then listed all of the defendants and their addresses); and (2) "Will you be able to serve on a jury for a four to six week trial?" In the event that a prospective juror claimed an inability to sit through a lengthy trial, the letter asked that an explanation be provided. No such explanation was requested in the event a prospective juror knew one of the defendants. The jury clerk compiled the results of the letters, and submitted to the district court a list of 167 names of people for whom she believed excusal or exclusion was appropriate, with a brief notation indicating the grounds for each person's removal. The vast majority of these were for hardship engendered by a lengthy trial. The list included twelve jurors, however, because they responded that they knew one of the defendants. The district court signed a blanket excusal for all jurors on the list.

According to appellants, the district court was not aware that it was excluding jurors merely because they knew one of the defendants. This view finds support in the following colloquy before the district court, which occurred immediately after counsel for Merchie C. Calabrese objected to the aquaintance-based exclusions:

Counsel for Merchie C. Calabrese : One of the problems Your Honor, I don't think mere knowledge of the defendants is sufficient to strike. The reason I say that Your Honor --

The Court : We didn't say we would [strike them]. We asked them to answer yes or no. We didn't say you ...


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