January 22, 1962; Concurring Opinion January 31, 1962.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
Martin Henderson, defendant-appellant, was convicted, following a jury trial, on an information charging him with knowingly forging the endorsement of the payee on a United States Treasury check in violation of 18 U.S.C.A. § 495. He was sentenced to imprisonment for 180 days. Defendant appealed and contends that the District Court erred in denying his motions challenging the array of petit jurors and to dismiss the information, each of which was reasserted in a motion in the alternative for a new trial or acquittal.
The main contested issues which emerge from defendant's appeal are:
(1) Whether the clerk and the jury commissioner may consider intelligence level as indicated by a formal eighth grade education as a factor in the selection of the names of persons to be placed in the box from which the names of jurors are publicly drawn.
(2) Whether forgery of a United States Treasury check payable on account of disability resulting from injury incurred in the line of active military duty is an offense within the purview of 18 U.S.C.A. § 495.
The manner of the selection of the persons whose names were placed in the box from which the panel was drawn for the trial of the defendant was stipulated. The clerk of the court and the jury commissioner annually send a questionnaire to each of approximately 800 prospective jurors.*fn1 Prospective jurors are required to answer the questionnaire in their own handwriting. It asks, among other things, the person's occupation, length of time of present employment or business, and ability to read, write and understand English. It requires that the number of years of primary, high school and college education be indicated by the circling of appropriate figures on the form.
The returned executed questionnaires are examined and separated into two groups as acceptable or unacceptable by either the commissioner or the clerk and given to the other for agreement or disagreement. In the event of disagreement, the particular questionnaire is jointly reexamined and a joint decision reached. In determining whether to place the name of the person in the jury box the decision is made on the basis of the information disclosed by the questionnaire. Spelling, grammar, penmanship, failure to answer any question, and the nature and length of employment are all considered. A person may be accepted if the nature and length of employment indicate responsibility, ability and experience, regardless of the amount of formal education. The questionnaire is the sole basis for estimating the intelligence of the prospective juror and significant consideration is given to the amount of formal education for the purpose of obtaining more intelligent jurors. In connection with the selection of persons with less than an eighth grade education, if relatively few names are needed to fill the box, the clerk and commissioner become more selective and are more likely to select those who have had more formal education. At the time of defendant's trial there were some jurors whose names were in the box and some on the jury panel who had less than an eighth grade education.
The defendant contends that in the selection of prospective jurors for the Eastern District of Wisconsin, which embraces the metropolitan Milwaukee area, whether such persons have completed eight grades of formal education may not be considered. He argues that in the enactment of 28 U.S.C.A. § 1861*fn2 Congress has imposed a "literacy" standard which precludes inquiry into the intelligence of prospective jurors and that the use of the intelligence criteria here employed by the clerk and commissioner in the selection process destroys the uniformity intended by Congress, violates the statute, and results in an exclusion of an important segment of the community, precluded by the Sixth Amendment to the United States Constitution, and which voids defendant's conviction.
The government disputes that intelligence may play no part in jury selection and points to the fact that until September 1, 1948 qualifications and exemptions of federal jurors were dependent upon the laws of the state where the federal district court sat and that nineteen states imposed qualifications of "intelligence, fair education".*fn3 In 1948, 28 U.S.C.A. §§ 1861 and 1864 were enacted. Except for disqualification for certain criminal convictions, § 1861 made every citizen meeting the age and residence requirements competent for jury duty provided that he was able to read, write, speak and "understand the English language", that he was not incapable to render efficient jury service because of mental or physical infirmities, and that he was not incompetent under state law. In 1957 Congress removed the provision requiring competency under state law from § 1861 as a part of civil rights legislation*fn4 designed to attain objectives not inconsistent with recognition that a reasonable level of intelligence is appropriate, if not a requisite, to the rendition of efficient service as a juror. And, that the goal of "efficient" service is an express objective of the statute is evidenced by its provision requiring rejection of persons incapable by reason of mental or physical infirmities of rendering "efficient jury service". Recognition that the statute envisions "efficient" service requires rejection of a conclusion that an intelligence level equated with mere literacy was intended to be imposed as a maximum standard to be employed by the clerk and the commissioner in the selection of persons pursuant to § 1864 whose names are to be placed in the box from which jurors are drawn.
And this view of the statute not only is in accord with its express provisions but is in harmony with the observation in Brown v. Allen, 344 U.S. 443, 474, 73 S. Ct. 397, 416, 97 L.eø. 469 that no due process infirmity invalidates a jury source which "reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty". (emphasis supplied). And as was pointed out in United States v. Dennis, 2 Cir., 183 F.2d 201, 220, the theory that a jury must be a "cross-section" of the community "must be taken with some reserves" and the statute "presupposes some winnowing of those called". The "cross-section" contemplated is not an absolute. Frequently such complete representation would be impossible. Cf. Dow v. Carnegie-Illinois Steel Corporation, 3 Cir., 224 F.2d 414, 423. But it does mean that prospective jurors shall be selected by court officials without the use of irrational or self-imposed standards.
The record before us discloses that the criteria here employed by the clerk and the commissioner in selecting persons whose names were placed in the box are not in themselves unreasonable or violative of the letter or spirit of the statute. Their use did not constitute or result in arbitrary exclusion. Lack of a formal eighth grade education did serve to require closer scrutiny of the nature of the person's employment to ascertain if it indicated such responsibility, ability or experience as evidenced a similar degree of intelligence. And, it was only where relatively few names were needed that persons who had more formal education were likely to be preferred for selection. Sole reliance on a questionnaire is not the most ideal method for the selection of prospective jurors. But the criteria here employed in the selection were not only practical, under the circumstances,*fn5 but did serve to confirm the required ability to read, write, speak and understand the English language and indicate the existence of an intelligence level which certainly is not unreasonable*fn6 as a requirement for the selection of efficient jurors.
The facts here present no arbitrary exclusion of the nature condemned in Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181; and Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181, cited and relied upon by the defendant. Nor do the criteria employed have the effect of excluding an important segment of the community here involved. The record shows that in such urban areas 82% of the adult population has at least an eighth grade education and 79% of male laborers meet this standard. And it is not contended, nor is there any evidence to indicate, that the criteria used were employed as a device or subterfuge to effect racial discrimination in the selection of prospective jurors or resulted in such discrimination - an exclusion expressly prohibited by 28 U.S.C.A. § 1863(c), and condemned in Smith v. Texas, supra.
Defendant has no constitutional or statutory right that "ignorance" be represented in the jury box. We are of the opinion that the District Court did not err in its ...