Appeal from the United States District Court for the Southern District of Illinois. No. 82-40010 -- James L. Foreman, Judge.
Cummings, Chief Judge, and Pell, Bauer, Wood, Cudahy, Eschbach, Posner, Coffey, and Flaum, Circuit Judges. Cudahy, Circuit Judge, with whom Cummings, Chief Judge, joins, concurring in part and dissenting in part.
Randy Gometz was convicted in the United States District Court for the Southern District of Illinois of assaulting a guard in the federal penitentiary at Marion, Illinois and was sentenced to three years in prison. His appeal presents an important question under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq. : whether, whenever a large fraction of the persons to whom the clerk of a district court sends juror qualification forms fail to complete and return them, the Act requires the clerk to take steps to assure himself that a jury list composed of those who do respond will be a representative cross-section of the eligible population. The appeal raises a number of other questions as well, but this opinion will discuss only those that relate to jury composition; the others have no possible merit or precedential significance and are therefore being decided in an unpublished opinion pursuant to Circuit Rule 35. The appeal was originally argued before a three-judge panel but the full court granted rehearing en banc on its own initiative before publication of the panel opinion, in accordance with Circuit Rule 16(e).
Gometz's challenge to the selection of the jury that tried him (his challenge to the selection of the grand jury is identical and does not require separate consideration), duly made under 28 U.S.C. § 1867(a), is twofold: (1) the Sixth Amendment was violated because blacks may have been underrepresented on the master jury wheel; (2) the Jury Selection and Service Act entitles him to a hearing to determine whether the qualified jury wheel, composed of names of people who voluntarily filled in and returned their juror qualification forms, was representative. The "master jury wheel," based usually on voter lists, is the source from which names are picked at random to be mailed juror qualification forms (questionnaires). See 28 U.S.C. §§ 1863(b)(4), 1864(a). The "qualified jury wheel" contains the names of those persons whose responses on the forms indicate that they are qualified for jury service. It is from the qualified wheel that the panels (venires) are selected (again at random) from which grand and petit juries are picked. See 28 U.S.C. § 1866(a). The focus of Gometz's statutory argument is that the people who receive juror qualification forms are not forced to complete and return them, and apparently many do not.
The Sixth Amendment has been interpreted to forbid racial discrimination in the selection of jurors; and although Gometz is while, and the jury that tried him was white (the venire had one black person on it, but the prosecutor used one of his peremptory challenges to exclude him from the jury), he has standing to challenge discrimination against blacks. Peters v. Kiff, 407 U.S. 493, 498-500, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972); see Taylor v. Louisiana, 419 U.S. 522, 526, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). But his only evidence of racial discrimination is some minor discrepancies between the population of particular counties in the Southern District of Illinois and the representation of those counties on the master jury wheel. For example, Alexander County, which has a large nonwhite population (31.63 percent), has 2.38 percent of the population of the Southern District but only 2.31 percent of the names on the master jury wheel. But Pulaski County, which has the largest percentage of nonwhites in its population of any county in the district (33.52 percent), is overrepresented on the master wheel: it has 1.71 percent of the district's population but 1.84 percent of the names on the wheel. Some counties with large nonwhite populations are underrepresented on the master wheel, some overrepresented; no clear pattern emerges. Systematic discrimination against counties with large black populations has not been shown.
Gometz makes a different argument with respect to the racial composition of the qualified jury wheel. He conjectures that blacks are overrepresented among those who do not return their juror qualification forms and therefore are underrepresented on the qualified jury wheel, and he wants a hearing in the district court to explore the issue. No evidence supports his conjecture. True, one of the 30 veniremen from among whom Gometz's petit jury was picked was black, which is 3.33 percent, while the population of the Benton Division of the Southern District, from which the venire was drawn, is 3.90 percent black. But the discrepancy is too small to be significant. If there had been two blacks on the venire, blacks would have been overrepresented (6.67 percent), and you cannot get perfect representativeness by cutting an individual juror in two. Cf. United States v. Armstrong, 621 F.2d 951, 956 (9th Cir. 1980).
Gometz also argues that a certain type of personality is bound to be underrepresented on the qualified jury wheel when some people do not return their juror qualification forms -- namely the "anti-authoritarian" personality, who thumbs his nose at the law and is therefore likely to ignore the requirement (see 28 U.S.C. § 1864(a)) of completing and returning the form. But nothing in the Jury Selection and Service Act suggests that Congress thought that a cross-section of the community, to be fairly representative, must include the anti-social elements in the community. Although for obvious practical reasons people who have "anti-authoritarian" personalities are not forbidden to serve on juries (as convicted felons whose civil rights have not been restored are, see 28 U.S.C. § 1865(b)(5)), neither the letter nor the spirit of the Act requires that they be represented on the qualified jury wheel, let alone in the same proportion that they bear to the population.
Still, a low rate of response to juror questionnaries could lead to the underrepresentation of a group that is entitled to be represented on the qualified jury wheel. Gometz alleges that in the period when the qualified jury wheel was created from which the juries that indicted and convicted him were drawn, 70 percent of those who received jury questionnaires did not respond and the qualified wheel was made up entirely of the names of the 30 percent who did. We do not know whether this allegation is true, but for purposes of this appeal must assume it is. And although, as we have said, it does not appear that blacks were underrepresented on the venire from which Gometz's petit jury was drawn, we do not know the percentage of blacks on the grand jury venire (Gometz says there were six blacks on the venire but does not say what the size of the venire was), the representation of other groups, such as women, in either venire, or the composition of the qualified jury wheel itself.
Gometz does not argue that the Sixth Amendment entitles a criminal defendant to demand that people be coerced to respond to a jury questionnaire if otherwise some group might be underrepresented on the jury that indicts or convicts him. He rests his case entirely on the Jury Selection and Service Act. And the issue under the Act is of course not whether it would be a good thing to follow up on persons who do not respond to a jury questionnaire, or to conduct an investigation of the effect of nonresponse on the representativeness of the jury wheel, or to place jury service on a basis of true conscription, but only whether the Act imposes any duty on the clerk or judges of the district court to follow up on the nonresponders. If it does not, no purpose would be served by the hearing that Gometz requests.
Before the passage of the Jury Selection and Service Act most federal districts used the "key man" system, whereby people believed to have extensive contacts in the community would suggest names of prospective jurors and the qualified jury wheel would be made up from those names. S. Rep. No. 891, 90th Cong., 1st Sess. 10 (1967). This system was believed to foster discrimination, and the Act substituted for it the principle of "random selection of juror names from the voter lists of the district or division in which court is held," id. at 15, subject to qualifications not pertinent here, see 28 U.S.C. § 1863(b)(2). Randomness in a statistical sense was not sought, however. See S. Rep. No. 891, supra, at 16 n. 9; United States v. Bearden, 659 F.2d 590, 602 (5th Cir. 1981). Congress not only recognized, see S. Rep. No. 891, supra, at 17, but desired, that venires drawn from lists of registered voters would not be random: "Voter lists contain an important built-in screening element in that they eliminate those individuals who are either unqualified to vote or insufficiently interested in the world about them to do so." Id. at 22.
Therefore, although section 1981 makes it "the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes," and a self-selected sample is not a random sample, it is apparent from the legislative history that the words "selected at random" were not intended literally and that self-screening was not anathematized. (The word "fair" before "cross section" may well have been intended to refer to the pragmatic compromise embodied in the use of voter lists as usually the only source of prospective jurors' names.) Moreover, to the extent that section 1861 is more than merely declaratory of a federal criminal defendant's Sixth Amendment rights, it is a preamble to the Act's specific provisions on qualification, selection, and compensation of jurors; and both committee reports state: "If the voter lists are used and supplemented where necessary, and if the procedures outlined in the bill are otherwise rigorously followed, it is no departure from the standards of the legislation that the qualified jury wheel, the venire or array, or the jury itself, may not reflect a community cross section. The act . . . does not require that at any stage beyond the initial source list the selection process shall produce groups that accurately mirror community makeup. Thus, no challenge lies on that basis." S. Rep. No. 891, supra, at 17; H.R. Rep. No. 1076, 90th Cong., 2d Sess. 5, (1968). It seems, therefore, that the general requirements of section 1861 are not intended to provide a basis, independent of the specific statutory procedures, for setting aside a conviction.
Those procedures include no requirement that the district court clerk take measures to correct a low response rate, so long as it is high enough to generate enough names for the qualified jury wheel to enable staffing the required number of juries. The Act empowers -- not requires -- the clerk to pursue those who fail to return their juror qualification forms: "Any person who fails to return a completed juror qualification form as instructed may be summoned by the clerk or jury commission forthwith to appear before the clerk or jury commission to fill out a juror qualification form." 28 U.S.C. § 1864(a) (emphasis added). This power is necessary to keep the jury system from collapsing in any district where widespread noncompliance with the requirement of completing and returning the juror qualification form prevents the clerk from maintaining an adequate qualified jury wheel. But it does not follow that Congress was worried about "no shows" in cases where there was no problem with filling the wheel.
Congress wanted to make it possible for all qualified persons to serve on juries, which is different from forcing all qualified persons to be available for jury service. To the criticism that using voter lists to create the pool from which jurors are selected discriminates against persons who are otherwise qualified to serve on a jury but who do not register and vote, the committees replied: "This is not unfair, however, because anyone with minimal qualifications -- qualifications that are relevant to jury service -- can cause his name to be placed on the lists simply by registering or voting." H.R. Rep. No. 1076, supra, at 5; S. Rep. No. 891, supra, at 17. "Can" -- not "must"; and filling out and returning a juror qualification form is no more difficult or burdensome than registering to vote. The statement we quoted earlier from the Senate Report, approving the "built-in screening element" of voter lists that consists in "eliminat[ing] those individuals who are . . . insufficiently interested in the world about them," suggests that Congress, rather than disapproving the element of nonrandomness implicit in any form of self-screening, wanted people who lacked a sense of civic obligation not to serve on federal juries, unless the number of "no shows" was so great that the qualified jury wheel could not be filled up. In that event, but only in that event, the clerks could be expected to use the coercive powers that the Act gave them. It is therefore not surprising that the criticisms that have been made of Congress's decision to base jury selection on lists of registered voters, see, e.g., Statutory Note, 4 St. ...