In Re United States

United States Court of Appeals
For the First Circuit
No. 05-2358
IN RE: UNITED STATES OF AMERICA,
Petitioner.
ON PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
____________________
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Timothy Q. Feeley, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney, Lori J. Holik,
Assistant United States Attorney and Theodore B. Heinrich,
Assistant United States Attorney were on petition for a writ of
mandamus, motion to stay district court order, and request for
leave to file a supplemental brief.
Patricia Garin with whom Max D. Stern, Kenneth M. Resnik,
Stern, Shapiro, Wiessberg & Garin, LLP, David P. Hoose, Katz,
Sasson, Hoose & Turnbill, John H. Cuhna, Jr., Cuhna & Holcomb,
P.C., Randolph Gioia, Elizabeth Billowitz, Law Office of Randy
Gioia, Sarah Jennings Hunt, William C. Brennan, Jr., Brennan,
Trainor, Billman & Bennett, LLP, George F. Gormley and George F.
Gormley, P.C. were on opposition to the government's petition for
a writ of mandamus and opposition to the government's motion to
stay district court order for respondents Branden Morris, Jonathan
Hart, Darryl Green and Edward Washington.
Charles W. Rankin, James L. Sultan and Rankin & Sultan on
brief for Nancy Gertner, United States District Judge.
Jackie Gardina, Vermont Law School, on brief for Chief Judge
William G. Young, Amicus Curiae.
Michael Avery, Suffolk Law School, on brief for National
Lawyers Guild, Massachusetts Association of Criminal Defense
Lawyers and Juvenile Justice Center of Suffolk University Law
School, Amici Curiae.
Julia M. Wade, David J. Apfel and Goodwin Procter LLP on brief
for The Boston Bar Association, The Committee for Public Counsel
Services, and The National Association of Criminal Defense Lawyers,
Amici Curiae.
William W. Fick, Martin F. Murphy, Foley Hoag LLP, Nadine
Cohen, Barbara J. Dougan, Lawyers' Committee for Civil Rights,
Dennis Courtland Hayes, General Counsel, Victor L. Goode, Assistant
General Counsel, NAACP, Charles J. Ogletree and Charles Hamilton
Houston Institute for Race & Justice on brief for Lawyers'
Committee for Civil Rights Under Law Of The Boston Bar Association
and Boston Branch of the NAACP, Greater Boston Civil Rights
Coalition, Community Change, Inc., Jewish Alliance for Law and
Social Action, Women's Bar Association, Massachusetts Black Lawyers
Association, Charles Hamilton Houston Institute for Race and
Justice, and Massachusetts Black Legislative Caucus, Amici Curiae.
October 7, 2005
BOUDIN, Chief Judge. In September 2003, the defendants
were charged in federal district court, by a superceding
indictment, with racketeering, 18 U.S.C. § 1962(c) (2000),
racketeering conspiracy, id. § 1962(d), conspiracy to murder, id.
§ 1959(a)(5), and various assaults and firearms offenses. Two
defendants were further charged with murder in aid of racketeering.
Id. § 1959(a)(1). Shortly thereafter, the government advised that
it would seek the death penalty against the latter two defendants
if they were convicted of a specific murder charged in one of the
counts.
In November 2004, one of the defendants moved to dismiss
the superceding indictment, or in the alternative for an order to
supplement the names contained in the master jury wheel currently
in use in the district court. This defendant claimed that the jury
selection process under-represented African Americans. At least
some of the defendants are African American and all joined in this
challenge.
The district judge held evidentiary hearings in January
2005 and received an expert report in April 2005. On September 2,
2005, with two of the defendants scheduled for trial on September
19, 2005, the district judge issued a 101-page decision and order.
The judge rejected the defendants' constitutional attack but found
that the current arrangements in this district for jury selection
were unlawful under the statute. United States v. Green, --- F.
-3-
Supp. 2d ---, 2005 WL 2109114, at *22, *32 (D. Mass. Sept. 2,
2005).
In Massachusetts, as in other district courts, the jury
selection process is governed by a "plan" adopted by the district
court pursuant to the Jury Selection and Service Act ("JSSA" or
"the statute"), 28 U.S.C. §§ 1861 et seq. (2000). The JSSA
contains substantive requirements for such plans and specifies the
procedures for adopting the plans. Each such plan must be adopted
by a vote of the judges of the district court and then approved by
a special review panel comprised of the circuit council and a
designated judge of the district court in question. Id. § 1863(a).
The current Massachusetts plan was revised in 2000 and is publicly
available. Plan for Random Selection of Jurors (D. Mass.).
Under the Massachusetts plan, trials held in the Eastern
Division of Massachusetts--a set of adjacent counties in the
eastern part of the state--draw juries starting with a source list
of names of residents from these counties. Plan §§ 2, 5(c). A
random selection of names from the full source list is placed in a
master jury wheel; a large number of names is then periodically
drawn at random from the master wheel and sent jury summonses and
qualification questionnaires; and after the returned questionnaires
are vetted (e.g., to exclude disqualified persons), the remaining
names go into a "qualified jury wheel" from which the needed number
of jurors are randomly drawn and eventually dispatched to court
-4-
when a jury or juries are to be selected. Plan §§ 8-10; see also
28 U.S.C. §§ 1863, 1864, 1866(a), (b).
In this case, the district judge determined from the
evidence that although African Americans comprised over 6 percent
of the Eastern Division population in the last several years, just
over 3 percent out of all those who returned questionnaires (and
identified their race) were African American. Green, 2005 WL
2109114, at *7. For the period 2001-2003 inclusive, the average
disparity was 3.66 percent. Id. at *18. In short, African
Americans appeared among the questionnaire answerers about half as
often as their presence in the population of the Eastern Division.
Out-of-date (or otherwise incorrect) addresses and a
lower response rate by African Americans than in the population as
a whole appeared to be the main reasons for the disparity. Green,
2005 WL 2109114, at *20-*21, *30-*31. Some letters are returned to
the jury administrator or clerk marked "undeliverable" (e.g., the
addressee moved). Id. at *20-*21. Others are not returned but no
questionnaire is filed by the addressee--a category that includes
some persons who never received a summons and questionnaire and
others who did but chose not to return the questionnaire. Id. at
*21. Although such misdeliveries and nonresponses occur in all
communities, the data suggest that they occurred proportionally
more often in areas that contained more poor or minority
inhabitants. Id. at *20-*21.
-5-
After an analysis of existing case law and statutory
provisions, the district judge concluded that no Sixth Amendment
violation had been proved, Green, 2005 WL 2109114, at *22, but that
the statute required supplementation of the names originally drawn
from the master wheel in order to remedy or ameliorate the racial
disparity, id. at *27-*28, *31-*32. The district judge directed
the federal jury administrator to draw an additional name from the
master wheel, but from the same zip code, for each name to whom a
questionnaire was sent that was returned "undeliverable"; for any
questionnaire that was not returned at all after two attempted
mailings to the same address, the same remedy was ordered. These
newly drawn names, to the extent their questionnaires were
returned, were then to be merged with original persons drawn who
had returned their questionnaires.1
1
The challenged paragraphs of the order provided that with
respect to the present case:
1. For all summonses returned to the Court
as "undeliverable," the same number of
new summonses should be mailed to
residents who live in the same zip code
area as the undeliverable summonses.
Replacement summonses will be selected
from a supplemental array, merged with
the existing array and randomized;
2. For all summonses for which there is no
response ("nonresponses") after a second
mailing, the same number of new summonses
should be mailed to residents who live in
the same zip code area as the
nonrespondents. Replacement summonses
will be selected from a supplemental
-6-
This procedure would draw proportionately more
supplemental names from zip codes where the original response rate
had been low--which the evidence showed would tend to have a larger
than average population of African Americans. Green, 2005 WL
2109114, at *35. The process would in turn tend to produce a
blended list of persons filing questionnaire answers containing a
greater proportion of African Americans than the original list.
The supplementation remedy adopted by the district judge thus
sought to increase the likelihood of African Americans (and other
groups similarly situated) appearing on the final jury in numbers
more closely aligned with their presence in the Eastern Division's
population.
After objecting to this remedy as inconsistent with the
statute and with the current plan, see 28 U.S.C. § 1867(e), the
government sought mandamus in this court to prevent the district
court's use of the supplemented list. We granted a stay of the
order and expedited our hearing on the mandamus petition, making
clear that the district court was free to delay the upcoming trial,
which it has now done. Issues of law are reviewed de novo, Porn v.
Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 33 (1st Cir. 1996); some
deference may be accorded to a court's interpretation of its own
array, merged with the existing array and
randomized; . . .
-7-
jury plan, but only to a "reasonable interpretation." Cf. Nehmer
v. Veterans' Admin., 284 F.3d 1158, 1160 (9th Cir. 2002).
In this court, the defendants contest our authority to
intervene. They argue that there is no final judgment in this case
and that it does not fit within the few categories of criminal
cases for which Congress has allowed interlocutory appeals. See 18
U.S.C. § 3731 (permitting, e.g., interlocutory appeal of
suppression orders). The short answer is that well settled
precedent treats mandamus as an alternative means of securing
interlocutory relief in the limited class of extraordinary cases
where the requirements for mandamus have been met.
The most familiar track, so-called "supervisory
mandamus," is traditionally available where judicial power has been
exceeded, there is a threat of irreparable harm, and the underlying
order is clearly erroneous. United States v. Horn, 29 F.3d 754,
769 (1st Cir. 1994). Even absent such conditions, "advisory
mandamus" has sometimes been granted in this circuit, United States
v. Green, 407 F.3d 434, 439-40 (1st Cir. 2005), petition for cert.
filed (U.S. Aug. 12, 2005) (No. 05-360), and elsewhere, e.g., In re
von Bulow, 828 F.2d 94, 97-100 (2d Cir. 1987), to settle critical
questions of law that affect multiple cases and warrant immediate
resolution.2
2
The Supreme Court cautioned in Will v. United States, 389
U.S. 90 (1967), against the over-ready use of mandamus in criminal
cases, id. at 96-98; but its own precedents--both before and after
-8-
Our case is a classic "exceptional" instance justifying
interlocutory intervention. The central issue is one of judicial
authority--namely, whether the district judge's action contravenes
or unlawfully supplements the jury plan adopted by the district
court as a whole and approved by the review panel. See
Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964). As for
irreparable injury, Horn, 29 F.3d at 769, the government has no
ready way to appeal if there is an acquittal and no standing to
appeal if there is a conviction. And, as we shall see, the
district judge's order clearly departs from the existing jury plan.
Further, the district judge's decision effectively
indicts the existing plan as applied to grand jury and petit jury
actions in a vast array of criminal cases, past and future. The
decision has already prompted motions in other pending cases. In
statements that are part of the record, the district judge's order
has been endorsed by the chief judge of the district court,
suggesting that he (and likely some other judges) will follow the
same course. Advisory, as well as supervisory, mandamus is thus
wholly appropriate.3
Will--make clear that mandamus is available in exceptional
circumstances in both civil and criminal cases. Schlagenhauf v.
Holder, 379 U.S. 104, 110 (1964); United States v. United States
Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 301 n.3 (1972).
3
The JSSA provides a short pre-trial window within which a
party must move to challenge non-compliance with the provisions of
the statute and further provides, with some qualifications, that
this is an "exclusive" remedy. 28 U.S.C. §§ 1867(a)-(c), (e). The
-9-
Turning to the merits, we begin by asking whether the
district judge's order comports with the existing plan or whether,
if not, the order can be justified in this case by claims that the
plan is at odds with the statute. Concluding that the answer to
both questions is no, our decision then explains why the order must
be enjoined even if a legitimately amended plan designed to improve
on the existing one might be permissible.
Central to this case is the relationship between the plan
and the statute. The statute provides a purpose and framework for
jury selection plans and some of the mechanical detail for
collecting jurors. A plan, which the statute requires from each
district, provides additional detail and mechanics, and it must not
conflict with the statute, 28 U.S.C. § 1863(a), but may differ from
district court to district court (e.g., as to the source of names
for the master wheel and the number drawn, id. § 1863(b)(2)). Once
adopted, the plan is intended to provide a uniform procedure for
assembling jurors in that district court binding upon each district
judge. See id. § 1863; S. Rep. No. 90-891, at 34 (1967); H. Rep.
No. 90-1076 (1968), as reprinted in 1968 U.S.C.C.A.N. 1792, 1805.4
government did make its objection within this period and the
statute does not specify how or when such challenges may be
presented to an appellate court and it does not preclude mandamus.
4
Employing identical language, both the Senate and House
reports explain: "The specific and comprehensive nature of the
provisions of the act and the local plan will assure that there are
readily available standards against which the selection procedures
may be measured. Thus, procedural regularity is the measure of the
-10-
In this case, the plan pertinently provides that the
state's local resident lists constitute "a fair cross section of
the community"--the grouping prescribed by the statute for jury
selection--and that the names of the persons "to be considered for
service . . . shall be selected at random" from the lists. Plan §
5(c). It also provides that the selection of names from the source
list and then from the master wheel (which are two separate steps)
"must . . . insure that the mathematical odds of any single name
being picked are substantially equal." Id. § 7(a); see also, e.g.,
District of Maine Plan §§ IV, V.
Then, from the names so drawn (first from the source list
of residents and then from the master wheel), the clerk sends a
summons and qualification form, Plan § 9(b), (c). From the
returned forms and through other procedures, some names are removed
for disqualification, exemption or excuse. Id. § 10. Under the
statute, the names of persons so qualified constitute a "qualified
jury wheel" from which jurors are drawn at random as necessary for
grand juries and for arrays periodically summoned to court (e.g.,
for Monday, September 19, 2005) as potential petit jurors for
trials. 28 U.S.C. § 1863(b)(8).
validity of the selection system. It is an appropriate measure
since the bill sets up a largely mechanical process in which the
role of human discretion is minimized. The bill does not guarantee
that each venire or each jury will mirror the structure of the
community. It guarantees only that appropriate selection
procedures have been used."
-11-
The district judge's order departs from this regime by
providing that a new name chosen in the supplemental draw must come
from the same zip code as an original addressee whose questionnaire
was not returned. This violates the "equal odds" requirement of
the plan because the supplemental draw, constrained by the
preferences for those in certain zip codes, does not give equal
odds of selection to every name in the master wheel. Indeed, if
the equal odds requirement were met, the results of the
supplemental draw would tend to reflect the very same demographics
as the original one.
The district judge pointed to a different provision of
the plan, namely, the authority in section 11 for the court to
direct a further draw from the master wheel to create a
"supplemental array" to be added to the regular array summoned from
the qualified wheel. But the expressed purpose of section 11 is to
add a small list of potential jurors when additional names are
needed "because of excused or increased jury requirements,"--i.e.,
an inadequate number of qualified jurors in a regular array.
Nothing in this provision authorizes new jurors because of low
return rates in a particular zip code.
Further, what the plan prescribes for a shortage of
qualified jurors is supplementation by a further draw from the
master jury wheel, Plan § 11(d), and not a draw only from
identified zip codes within the master wheel. Regardless of the
-12-
purpose of the supplemental array, the plan authorizes additions
only through a new "equal odds" draw from the entire master wheel.
Id. § 7(a). The successive new draws directed by the district
judge's order are not "equal odds" draws from the wheel but draws
only from individual zip codes.
Even without regard to the plan's equal odds language,
the order fails for a different reason. As just noted, the plan's
mechanism provides for additional draws from the master wheel only
in one specific situation--a draw of a supplemental array
occasioned by a shortage of qualified jurors in a regularly-
selected array. Plan § 11(d). A consequential enlargement of the
bases for a new draw amounts to a de facto amendment, even if
performed by an individual judge, and does not thereby escape the
statute's procedural requirements;5 the failure formally to amend
the plan by vote of the whole court is not a defense of the present
order but its vice.
Imagine that the district judge in question adopted this
new, zip-code-oriented approach and that another judge in the
district insisted on using the pre-existing practice. Quite apart
from the mechanical complications--normally an array is summoned
5
This is well settled in the closely related area of
rulemaking. See, e.g., United States v. Hoyts Cinemas Corp., 380
F.3d 558, 569 (1st Cir. 2004); Levesque v. Block, 723 F.2d 175,
178-85 (1st Cir. 1983); Hoctor v. U.S. Dept. of Agric., 82 F.3d
165, 170-72 (7th Cir. 1996); Mission Group Kan. v. Riley, 146 F.3d
775, 782-83 (10th Cir. 1998); United States v. Picciotto, 875 F.2d
345, 346-49 (D.C. Cir. 1989).
-13-
for multiple trials before different judges--this would result in
some defendants getting juries selected under one regime and others
under a significantly different one. Compare note 4, above
(quoting legislative history). Alternatively, if all judges
informally followed the district judge's lead, it would merely
emphasize that a plan amendment had been improperly implemented
without the approvals required by the statute.
Certainly some details in jury administration are too
minor to require inclusion in a plan; for instance, the
Massachusetts plan does not specify the number of mailings to a
non-responding addressee and the government does not challenge the
district judge's contemplation of additional mailings to the same
address. But the plan does specify the use of equal odds draws
from the master wheel and the basis upon which a supplementary draw
can be ordered. The challenged portion of the district judge's
order is not a minor adjustment of administration on a matter left
unaddressed by the existing plan.
Possibly a major departure from the existing plan by one
judge might be justified if that plan were unconstitutional or in
conflict with the JSSA. Such a situation would create a conflict
between the substance of the plan and the procedure for altering
it. The government says that in such a case the conflict-resolving
solution would be to stay the trial and seek a formal amendment to
the plan by the district court as a whole. Cf., e.g., United
-14-
States v. Gordon, 961 F.2d 426, 431 (3d Cir. 1992). But we will
assume, solely for the sake of argument, that a judge might depart
from the plan where compliance would cause a constitutional or
statutory violation. Here, the district judge did claim that the
statute compelled such a departure. It does not.
The district judge recognized that under our prior
governing precedent the plan, without any supplemental drawings,
complied with the Sixth Amendment. Green, 2005 WL 2109114, at *11-
*22; see United States v. Royal, 174 F.3d 1, 10-11 (1st Cir. 1999).
However, her decision invoked a statutory requirement that the
district court prescribe "some other source or sources of names in
addition to voter lists where necessary to foster the policy and
protect the rights" secured by the statute (which include both the
fair cross section requirement and equal access of citizens to
consideration for service on juries). Green, 2005 WL 2109114, at
*27-*30 (citing 28 U.S.C. § 1863(b)(2)). The district judge then
deemed the racial disparity in qualified names as triggering the
statutory duty to supplement. Id. at *30-*32.
This amounts to saying that the cross section language in
the statute is more demanding than the constitutional cross section
holdings. Yet the statutory language was drawn from the Supreme
Court's constitutional holdings, and this court, Royal, 174 F.3d at
-15-
6, like others,6 has held the statute to impose essentially the
same obligation. Whether or not the record in this case is
factually better developed than that in Royal, the disparities are
of the same general magnitude, compare Royal, 174 F.3d at 10-11,
with Green, 2005 WL 2109114, at *18, and Royal binds this panel
quite as much as it binds the district judge. Irving v. United
States, 162 F.3d 154, 160 (1st Cir. 1998), cert. denied, 528 U.S.
812 (1999).
What is more, the "in addition" language in section
1863(b)(2) is directed to the specification of the source lists for
the master wheel. This is a function expressly to be performed by
the district court as a whole through the plan, see Plan § 5(b),
and it was performed when that court found that the Massachusetts
local resident lists satisfied the statute's requirements (a
finding expressly permitted by the statute as to the Massachusetts
lists, 28 U.S.C. § 1863(b)(2)). Nothing in the "in addition"
language has anything to do with how names are selected from the
master wheel.
In certain cases we have upheld convictions despite
deviations from a jury selection plan where the deviation did not
6
United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996);
United States v. Allen, 160 F.3d 1096, 1102 (6th Cir. 1998), cert.
denied, 526 U.S. 1044 (1999); United States v. Clifford, 640 F.2d
150, 154-55 (8th Cir. 1981); United States v. Miller, 771 F.2d
1219, 1227 (9th Cir. 1985); United States v. Shinault, 147 F.3d
1266, 1270-71 (10th Cir.), cert. denied, 525 U.S. 988 (1998).
-16-
frustrate core concerns of the statute, specifically, random
selection of jurors and objective criteria for juror
disqualification. See United States v. Savides, 787 F.2d 751, 754-
55 (1st Cir. 1986); see also United States v. Tarnowski, 429 F.
Supp. 783, 790-91 (E.D. Mich. 1977), aff'd, 583 F.2d 903 (6th Cir.
1978), cert. denied, 440 U.S. 918 (1979). Our concern here,
however, is not with the rights of an individual party seeking
redress on appeal but with the use of mandamus to assure that the
district court complies with an existing plan in a series of trials
yet to be held.
As a final source of authority for the order, the
district judge's decision cites the long-recognized inherent
"supervisory" power of the court to manage its business. Green,
2005 WL 2109114, at *32-*33 (citing Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988)). The court's supervisory power
does not license it to ignore an otherwise valid existing jury plan
or to bypass the mechanism provided by statute to alter such plan.
"To allow otherwise 'would confer on the judiciary discretionary
power to disregard the considered limitations of the law it is
charged with enforcing.'" Bank of Nova Scotia, 487 U.S. at 254(quoting United States v. Payner, 447 U.S. 727, 737 (1980)).
No one is entitled automatically to be tried by a jury of
persons comprised of his or her own race, religion or gender.
Taylor v. Louisiana, 419 U.S. 522, 538 (1975); Barber v. Ponte, 772
-17-
F.2d 982, 997 (1st Cir. 1985) (en banc), cert. denied, 475 U.S.
1050 (1986). Yet there is assuredly cause for concern, as this
court said six years ago, Royal, 174 F.3d at 12, where African
American defendants have been indicted for major crimes, and the
proportion of blacks who return jury questionnaires is half the
percentage to be expected from their presence in the division of
the district concerned. The district court has always been free to
revise its jury plan in compliance with the statute.
Without developing its argument in detail, the government
has questioned whether the district court's remedy would comport
with the statute even if embodied in a properly adopted plan. But
what plan the district court as a whole might adopt is uncertain;
and we have expedited both oral argument and issuance of this
decision because of the need for a prompt resolution of the
mandamus petition. The statute provides for the district court as
a whole and then the review panel to consider plan changes in the
first instance. 28 U.S.C. § 1863(a).
The writ of mandamus is granted and the district court is
directed not to implement paragraphs 1 and 2 of its remedial order
entered on September 2, 2005. The writ shall issue forthwith
without prejudice to petitions for rehearing. No costs are to be
awarded.
It is so ordered.
-18-