WILBUR HOBBY, PETITIONER V. UNITED STATES OF AMERICA

   No.  82-2140

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Fourth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      A white male defendant's claim of discrimination
      against blacks and women that is limited to the
      selection of a foreperson from among the members
      of a properly constituted grand jury provides no
      basis for a motion to dismiss the indictment.
      A. Equal protection and due process principles
      do not require dismissal of an indictment based
      upon discrimination extending only to the
      selection of a foreperson from among the members
      of a properly constituted grand jury.
      B. Scrutiny of foreperson selection practices at
      the behest of a criminal defendant in the manner
      proposed by petitioner would impose substantial
      and unwarranted burdens upon the administration
      of justice.
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A19) is reported
at 702 F2d 466.  The district court issued no written opinion.  The
transcript of the district court's ruling from the bench is reproduced
at J.A. 110-113.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 9, 1983.
A petition for rehearing was denied on April 29, 1983 (see J.A.
123-124).  The petition for a writ of certiorari was filed on June 29,
1983, and was granted on December 12, 1983, limited to the third
question presented therein (see J.A. 125).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether alleged discrimination in the selection of grand jury
forepersons resulting in the underrepresentation of women and blacks
in that position provides a basis for reversal of a conviction of a
white male defendant upon an indictment returned by the grand jury.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of North Carolina, petitioner and co-defendant Mort
Levi were convicted of conspiring to defraud the United States of
monies appropriated under the Comprehensive Employment and Training
Act of 1973 (CETA), 29 U.S.C. (& Supp. V) 801 et seq., in violation of
18 U.S.C. 371 and 665 (Count 1).  In addition, petitioner was
convicted on three counts of fraudulently obtaining and misapplying
CETA grant funds, in violation of 18 U.S.C. 665 (Counts 3, 4, and 5).
Petitioner was sentenced to 18 months' imprisonment on Count 1;  his
sentence to concurrent terms of two years' imprisonment on Counts 3, 4
and 5 was suspended in favor of five years' probation.  In addition,
he was fined $10,000 on each count.  The court of appeals affirmed
(Pet. App. A1-A19).

   1. The evidence adduced at trial is summarized in the opinion of
the court of appeals (Pet. App. A2-A8).  The pertinent background is
as follows:  At the time of the events that led to this prosecution,
in 1979, petitioner was the president of the North Carolina chapter of
the AFL-CIO.  Petitioner also owned Precision Graphics, Inc., a
printing company located across the street from the labor
organization's headquarters in Raleigh that sometimes performed work
for the chapter.  Prior to 1979, the labor organization had been using
independent contractors to maintain its membership data in
computerized form, but as early as 1977 petitioner had suggested to
the chapter's board that the organization should acquire its own
computer capacity.  Petitioner had also mentioned that there might be
CETA funds available for projects the AFL-CIO was interested in (II
C.A. App. 1199, 1201).  Petitioner was well acquainted with the CETA
program;  he had entered into 15 CETA contracts between 1977 and 1979.

   In early 1979 petitioner's interest in the CETA program and his
interest in acquiring a computer for AFL-CIO use began to converge.
In January petitioner began discussions with a representative of
Mohawk Data Sciences, a firm that had provided equipment for other
state AFL-CIO affiliates that was tailored to exchange data with the
computers in AFL-CIO national headquarters, concerning acquisition of
such a computer for the North Carolina AFL-CIO chapter (I C.A. App.
427-431).  Meanwhile, petitioner and co-defendant Levi formed a new
company, Precision Data, Inc., which promptly submitted to the North
Carolina Department of Natural Resources and Community Development
(DNRCD) an application for CETA funds to establish a data processing
training program.

   Precision Data's proposal was received with some skepticism by
DNRCD staff members because officials doubted the need for such a
program in the region to be served, and because Precision Data had no
staff or plant, nor any experience in data processing training or in
the CETA program generally, and would be wholly funded by the proposed
grant (II C.A. App. 655-657).  Petitioner's funding proposal was
modified in response to some of these concerns.  Because it was a
going enterprise with experience in administering CETA training,
Precision Graphics was denominated the grantee in place of Precision
Data.  On May 21, 1979, DNRCD approved a grant of $129,429 to
Precision Graphics to operate the proposed data processing training
program.

   Earlier, in April, petitioner, acting on behalf of Precision Data,
had agreed to purchase a computer from Mohawk Data Sciences, for
$41,317.68.  A deposit of $10,329.42 was required, with the balance to
be paid in 18 monthly installments of $1721.57 (Gov't Exhs. 8, 40;  3
Tr. 53-56).  In addition, Mohawk agreed to provide Precision Data with
maintenance service for $214/month.

   On May 21, 1979, the very day the Precision Graphics' CETA
application was approved, Precision Data and Precision Graphics
entered an agreement for the latter to lease the computer just
purchased by the former.  A monthly rental of $3,000 and a maintenance
fee of $125/week was agreed upon.  As soon as the CETA contract
between DNRCD and Precision Graphics was formalized, petitioner's
co-defendant Levi secured an advance of $43,696, and transferred
$18,000 of that amount to Precision Data, $9,000 of which was
designated for computer rental charges.  Although the computer was not
installed until June 15, 1979, on July 3 petitioner issued another
check on Precision Graphics' data processing training program account,
in the amount of $5,000, to Precision Data for computer rental.  In
addition, although Precision Data's obligation to pay Mohawk Data for
maintenance services (at a rate of $214/month) did not accrue until
July 16, 1979, Precision Graphics expended CETA grant funds under its
maintenance agreement with Precision Data at the rate of $125/week
beginning May 21, 1979.  The overcharges thus reaped by petitioner
through Precision Data were the basis for the indictment.  /1/

   2. a. Prior to trial, petitioner, a white male, moved to dismiss
the indictment "due to improper selection of grand jurors" (J.A. 32).
/2/ Invoking the Fifth and Sixth Amendments and provisions of the Jury
Selection and Service Act of 1968, 28 U.S.C. (& Supp. V) 1861 et seq.,
petitioner's motion papers alleged that the administration of the Jury
Plan for the Eastern District of North Carolina "failed to ensure
grand juries selected at random from a fair cross-section of the
community within the District," or that all eligible citizens have a
proper opportunity to serve as jurors;  that jurors had been excluded
from service on the basis of race, economic status, occupation or age;
 that various geographical subdivisions within the district were not
proportionally represented;  and that the list of names for the master
jury wheel had impermissibly been constituted from the list of persons
who had actually voted (J.A. 33-34).  No reference was made in this
motion to the selection of grand jury forepersons.

   The district court held an evidentiary hearing on petitioner's
motion to dismiss the indictment.  The only witness to testify was
James O'Reilly, a statistical social science consultant.  O'Reilly
testified concerning a comparison he had made between 1970 census data
on the racial, employment, educational and age characteristics of the
population of the judicial district and the characteristics of a
sample drawn from master jury wheel in use in 1977 in the Eastern
District of North Carolina (J.A. 64-66).  He concluded that various
population groups were underrepresented on the master jury wheel as
compared with the census figures and that such underrepresentation was
attributable to the district jury plan's use of the list of actual
voters in the previous presidential election as the source for the
names of potential jurors (J.A. 80-84).  /3/

   Although no issue as to foreperson selection had been framed by the
pleadings, O'Reilly also testified as to the characteristics of the
persons selected as grand jury foreperson or deputy foreperson in the
district between 1974 and 1981.  He reported that none of the 15 grand
juries that sat in this period had a black or female foreperson.  Of
the 15 deputy forepersons, three were black and six were female (J.A.
85-87).  Based upon the census statistics, O'Reilly concluded (J.A.
86-88) that black persons and women were underrepresented among grand
jury forepersons and deputy forepersons (see page 5 note 3, supra).
He did not, however, have any information as to the race or gender
composition of the grand jury that actually indicted petitioner (J.A.
104), nor did he have analogous information with respect to any other
actual grand jury that sat in the Eastern District of North Carolina
during the period for which the identity of forepersons was examined
(J.A. 105).

   Petitioner argued (I C.A. App. 205-207) that he had established the
elements of a prima facie case as outlined in Rose v. Mitchell, 443
U.S. 545 (1979), thereby requiring the government to rebut an
inference that the cause of low representation of blacks and women as
officers of the grand jury was intentional discrimination by the
judges of the United States District Court for the Eastern District of
North Carolina in their selection of forepersons and deputy
forepersons.  /4/ Petitioner also argued that the statistical evidence
showed substantial underrepresentation of various population groups on
the master jury list itself, and that the jury list accordingly did
not reflect a "fair cross section of the community" (I C.A. App.
207-208).

   In response, the government argued that the juror selection method
employed in the Eastern District of North Carolina is consistent with
the provisions of the Jury Selection and Service Act of 1968, and that
there had been no showing that the selection procedures employed
systematically excluded any class of persons eligible for service (I
C.A. App. 208-209).  The government also observed that there had been
no showing that any group was underrepresented on the grand juries
actually selected during the period 1974-1981, and that there had been
no evidence as to the make-up of the grand jury that had indicted
petitioner. (ibid.).  The government concluded that petitioner had not
made a showing of purposeful discrimination in the selection of
forepersons or of the entire grand jury panel (id. at 210).  The
government did not put on any rebuttal evidence of its own.

   Focusing on the challenge to procedures for selection of the grand
jury as a whole, the district court denied petitioner's motion to
dismiss (J.A. 110-113).  The Court relied primarily upon United States
v. Coats, 611 F.2d 37 (4th Cir. 1979), which upheld the jury selection
plan of the Eastern District of North Carolina against a challenge
based upon much the same evidence as was adduced here (see J.A. 59-60,
64-66, 101).  The court did not believe that petitioner's added claim
of discrimination in the selection of forepersons called for a
different result (id. at 113).

   b. The court of appeals affirmed the convictions of petitioner and
his co-defendant.  Petitioner had identified 14 issues on appeal and
his brief encompassed numerous additional issues under these headings.
 The court of appeals determined, however, that "(m)ost of the
contentions" -- including petitioner's claim that he had been the
victim of impermissible selective prosecution -- "are of little
substance or frivolous," and accordingly limited its discussion to two
points (Pet. App. A8).  /5/ First, the court discussed and rejected
petitioner's contention that he had been prejudiced by the district
courtS correction of an error it had made in preliminary instructions
concerning the elements to be proven by the government in order to
establish a violation of 18 U.S.C. 665 (Pet. papp. A8-A13).

   Second, the court of appeals upheld the denial of petitioner's
motion to dismiss the indictment based upon alleged discrimination
against blacks and women in selection of federal grand jury
forepersons in the Eastern District of North Carolina (Pet. App.
A13-A19).  /6/ The court of appeals recognized (id. at A14-A15) that,
in Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979), this Court had
reserved the issue whether discrimination affecting only the selection
of grand jury forepersons requires reversal of a conviction upon the
resulting indictment.  The court of appeals observed that, in contrast
to the Tennessee scheme at issue in Rose, federal grand jury
forepersons are chosen from among the members of the grand jury
itself, and their duties are purely ministerial and provide them with
no special influence over the rest of the grand jury (Pet. App.
A16-A17).  The court explained (id. at A17-A18):

         The impact of the federal grand jury foreman, as
      distinguished from that of any other grand juror, upon the
      criminal justice system and the rights of persons charged with
      crime is minimal and incidental at best.  Any suspicion that his
      office may enlarge his capacity to influence other grand jurors
      is too vague and uncertain to warrant dismissal of indictments
      and reversals of convictions.

   Accordingly, although cognizant of the contrary decision of the
Eleventh Circuit in United States v. Perez-Hernandez, 672 F.2d 1380
(1982), the court concluded that the "role (of a federal grand jury
foreperson) is so little different from that of any other grand juror
that the rights of defendants are adequately protected by assurance
that the composition of the grand jury as a whole cannot be the
product of discriminatory selection" (Pet. App. 18).

                          SUMMARY OF ARGUMENT

   The issue in this case is not whether discrimination against blacks
or women in the selection of grand jury forepersons is lawful, for
there is no dispute between the parties that it is not.  Rather, the
question is whether the remedy of dismissal of a valid indictment
returned by a grand jury properly drawn from a fair cross section of
the community must be extended to a white male defendant who cannot
show that he has suffered any specific injury from the alleged
discrimination.

   A. 1. The Court has long held that a black defendant cannot be
validly indicted by a grand jury or convicted by a petit jury from
which blacks have been purposely excluded, because such official
discrimination brands black persons as inferior in the eyes of the law
and therefore may prevent even-handed administration of justice to
black defendants.  But petitioner, a white male, cannot claim any
injury of this kind flowing from the discrimination he alleges to
exist against blacks and women.  He accordingly has no standing to
challenge his indictment on equal protection grounds.

   2. In Peters v. Kiff, 407 U.S. 493 (1972), the Court accorded
standing to a white defendant to seek dismissal of an indictment based
upon discriminatory exclusion of blacks from the grand jury that
indicted him, reasoning that due process assures a defendant a jury
drawn from the full range of groups represented in the community
population (opinion of Marshall, J.) and that exclusion of a racial
group from jury service is a violation of 18 U.S.C. 243 (opinion of
White, J.).  But no violation of 18 U.S.C. 243 could be alleged here,
and it is difficult to see how designation as foreperson of one grand
juror from among a grand jury drawn in a representative fashion could
disable it from exercising its independent judgment or destroy its
broad-based character.  Moreover, the single foreperson of a grand
jury is not required to -- and obviously could not -- serve as a
representative of all tendencies within the community.  An allegation
of discrimination in foreperson selection accordingly does not
implicate the rights of a defendant to a grand jury properly drawn
from the community.

   Nor -- assuming petitioner has standing to press such a contention
-- must the remedy of dismissal be made available here to guard
against any debilitating effect of official tolerance of
discrimination upon the grand jury's ability to administer justice
impartially.  Discrimination limited to the selection of a single
foreperson from among the members of a properly constituted grand jury
casts no shadow of prejudice within the jury room because, absent
other indicia of discrimination, its operation would not be apparent
to the grand jurors.

   3. Petitioner quarrels with the court of appeals' characterization
of the role of foreperson as a "ministerial" one.  Even if one accepts
petitioner's description of the foreperson's job, however, the role is
essentially administrative and clerical.  The key fact is that a
foreperson lacks any authority to determine whether a prosecution will
go forward or not that is independent of that of the grand jury upon
which he sits and casts a single vote.  In any event, petitioner's
argument is misconceived, for the issue in this setting is not, as
petitioner appears to assume, whether the job of foreperson is an
important one in some abstract sense, or significant enough to make
discrimination in foreperson selection cognizable by the courts when a
member of an allegedly excluded class seeks to redress such
discrimination.  Distinctive interests of criminal defendants have
been held to permit them to challenge discrimination in selection of
the grand jury as a whole.  Measured in terms of those interests,
however, the role of the foreperson lacks any attribute that would
justify dismissal of an indictment based on the selection of one
individual or another to serve in that capacity.

   B. 1. The rule petitioner advocates would place substantial and
unjustifiable burdens upon the administration of justice.  It is
petitioner's submission that by demonstrating historical
underrepresentation of blacks or women among grand jury forepersons in
the judicial district in which he was indicted he has cast upon the
"government" the burden of demonstrating that this pattern is not due
to purposeful discrimination by the judges of the district court.  But
because the selection of a foreperson is entrusted by law to the
discretion of the district judge who supervised and impanelled the
grand jury, no practical means of rebutting a statistically-based
inference of discrimination exists except to adduce the testimony of
the district judges or judge responsible for selection.  This
procedure has been employed within the Eleventh Circuit pursuant to
the decisions of that court.  It has placed a substantial burden upon
the administration of justice, wholly unjustified by any injury
suffered by defendants.

   2. The remedy of dismissal of an indictment need not be extended to
a criminal defendant in order vicariously to protect the rights of
would-be forepersons or to protect the integrity of the judicial
system.  Other, more appropriate means are available to fulfill those
purposes.  The Judicial Councils established pursuant to 28 U.S.C. (&
Supp. V) 332 have jurisdiction to investigate impediments to the
administration of justice within their respective circuits, including
those attributable to the conduct of judicial officers, and have the
power to issue corrective orders binding upon the responsible judicial
personnel.  This procedure is available both to assure the integrity
of the administration of justice and to assure that no class of
persons need suffer discriminatory action by any district judge.

   The Judicial Conference and its standing committees have similar
investigatory capacity and have the authority to recommend any
amendment to the Federal Rules of Criminal Procedure that is necessary
to carry out the salutary policy of preventing discrimination in the
administration of justice.  Thus, if investigation should disclose a
problem, the courts' supervisory responsibilities over the
administration of justice may be most effectively carried out directly
by requiring nondiscriminatory foreperson selection rather than
indirectly by providing the windfall of a dismissal to an uninjured
defendant.  Maintenance of a civil action by members of a
discriminatorily excluded class likewise could afford relief without
attendant cost to society.  There accordingly is no warrant for
permitting a wholly uninjured defendant such as petitioner to seek
dismissal of the valid indictment returned against him.

                               ARGUMENT

 A WHITE MALE DEFENDANT'S CLAIM OF DISCRIMINATION AGAINST BLACKS AND
WOMEN THAT IS LIMITED TO THE SELECTION OF A FOREPERSON FROM AMONG THE
MEMBERS OF A PROPERLY CONSTITUTED GRAND JURY PROVIDES NO BASIS FOR A
MOTION TO DISMISS THE INDICTMENT

   Based upon purely statistical evidence that black persons and women
have historically been underrepresented among grand jury forepersons
in the Eastern District of North Carolina, petitioner claims that
foreperson selection in that district reflects a pattern of
intentional discrimination.  But the direct object of petitioner's
claim is not to redress the alleged discrimination or to open the role
of foreperson to black or female grand jurors that have allegedly
suffered discriminatory consideration.  Rather, based upon the
proffered evidence petitioner seeks reversal of his conviction and
dismissal of his indictment.  Contrary to petitioner's
characterization of the decision of the court of appeals (see Pet. Br.
14), and the overstated claim of an amicus curiae (ACLU Br. 1),
neither the United States nor the court of appeals has "defended * * *
reservation of a position exclusively for white males" in this case.
Rather, the question that we have addressed is a variant of the
remedial one that was reserved in Rose v. Mitchell, 443 U.S. 545,
551-552 n.4 (1979):  whether, if proven, "discrimination with regard
to the selection of only the foreman requires that a subsequent
conviction be set aside, just as if the discrimination * * * had
tainted the selection of the entire grand jury venire." See pages
22-23 note 12, infra.

   Our answer to this question is that dismissal of an indictment is
unwarranted when a defendant's complaint is that there has been
discrimination only in the exercise of the court's discretion as to
which of the members of a properly selected grand jury, drawn at
random from a fair cross section of the community, shall carry out the
duties of the foreperson.  Because such discrimination has a de
minimis impact upon the rights of a criminal defendant, while the
remedy proposed (and the procedural scheme by which it would be
administered) would impose heavy burdens upon the administration of
justice, and because less costly and more effective means of assuring
equal consideration of all grand jurors for the role of foreperson
appear to be available, nothing in this Court's teaching would justify
affording the remedy of dismissal to a criminal defendant.

   Petitioners and the amici search far and wide for a basis in the
constitutional or other federal law expounded by this Court that would
support the petitioner's claim for relief.  Throughout the course of
this litigation the doctrinal basis for petitioner's claim has been
obscure.  As indicated in our statement of the case (page 6 note 4 &
page 8 note 6, supra), petitioner generally relied below upon equal
protection principles and cases.  He appeared, however, to invoke
broader considerations of due process in asserting his entitlement, as
a white male, to complain of alleged discrimination against black
persons and women.  In this Court, at the petition stage, petitioner
framed a broad "due process" claim (Pet. 32, 39), albeit relying
primarily on Rose v. Mitchell, which addressed an equal protection
claim.  /7/

   In his brief on the merits, petitioner still does not settle upon
any doctrinal basis or constitutional foundation for his claim.
Rather, petitioner merely surveys three lines of cases addressing
aspects of selection of the jury as a whole:  cases founded upon the
Fourteenth Amendment Equal Protection Clause (Pet. Br. 51-62), cases
decided under the Sixth Amendment fair cross section requirement and
the Fourteenth Amendment Due Process Clause (Pet. Br. 62-70), and a
triad of cases said to have been decided under this Court's
supervisory power over the administration of justice in the lower
federal courts (Pet. Br. 70-76).  Petitioner does not specifically
place reliance on any of these lines of authority.  And there is not
-- and could not be -- any suggestion that any of the cases cited
addresses the question whether an indictment should be dismissed
because of discrimination affecting only the selection of a foreperson
from among the members of a properly constituted grand jury.
Petitioner simply asserts (Pet. Br. 77) that "it follows" from his
survey of the three lines of authority that the indictment in his case
must be quashed.  As we indicate below neither any of the lines of
authority canvassed by petitioner viewed in isolation nor all of them
read together support that assertion.

   The same is true of the diverse arguments proffered by the amici
curiae.  The amici generally do not purport to support the arguments
made by petitioner below or in this Court, and do not even endorse the
rationale adopted by the Eleventh Circuit in its decisions contrary to
the decision below.  /8/ Rather, amicus ACLU advances a novel
argument, which has allegedly "escaped the attention of the lower
courts which have heretofore considered th(e) issue" (ACLU Br. 2) in
this case.  It is that discrimination in the selection of a foreperson
from among its members deprives a grand jury of its status as a "grand
jury" satisfying the requirement of the indictment clause of the Fifth
Amendment.  And amicus curiae NAACP Legal Defense and Education Fund
(LDEF) urges the Court to decide this case under the Jury Selection
and Service Act of 1968.  Yet, ACLU is obliged to acknowledge (Br.
18-19) that no authority supports conversion of a fair cross section
requirement applicable to the list from which grand jurors are drawn
to a requirement of proportional representation in the post of
foreperson.  And the LDEF acknowledges (Br. 15) that the Jury
Selection and Service Act is not, on its face, applicable to
foreperson selection at all.  Thus, as is detailed below, none of the
alternative contentions advanced by the amici carries petitioner over
the hurdle that his own arguments fail to surmount:  the absence of
any sufficient justification for dismissing the indictment of a
criminal defendant held to answer by a properly constituted grand
jury.

               A. Equal Protection and Due Process Principles Do not

               Require Dismissal of an Indictment Based Upon

               Discrimination Extending Only to the Selection of a

               Foreperson From Among the Members of a Properly

               Constituted Grand Jury

   1. a. This Court "has long recognized that 'it is a denial of the
equal protection of the laws to try a defendant of a particular race
or color under an indictment issued by a grand jury -- from which all
persons of his race or color have, solely because of that race or
color, been excluded * * * .'" Castaneda v. Partida, 430 U.S. 482, 492
(1977) (quoting Hernandez v. Texas, 347 U.S. 475, 477 (1954)).  And
while this principle was originally applied to "absolute exclusion of
an identifiable group" it subsequently was enlarged to recognize that
"substantial underrepresentation of the group constitutes a
constitutional violation as well, if it results from purposeful
discrimination." Castaneda v. Partida, 430 U.S. at 493.

   The rationale for the Court's recognition of a defendant's right to
dismissal of an indictment returned by a grand jury from which members
of his or her own race have been excluded by intentional
discrimination was stated in the earliest decision applying that
principle as it emerged in the petit jury context (Strauder v. West
Virginia, 100 U.S. 303, 308 (1879) (emphasis added)):

      The very fact that colored people are singled out and expressly
      denied by a statute all right to participate in the
      administration of the law, as jurors, because of their color,
      though they are citizens, and may be in other respects fully
      qualified, is practically a brand upon them, affixed by the law,
      an assertion of their inferiority, and a stimulant to that race
      prejudice which is an impediment to securing to individuals of
      the race that equal justice which the law aims to secure to all
      others.

   Because the "exclusion from grand jury service of Negroes, or any
group otherwise qualified to serve" is especially odious, "destroys
the appearance of justice," "casts doubt upon the integrity of the
judicial process," and thereby "impairs the confidence of the public
in the administration of justice," the Court has held that a "criminal
defendant's right to equal protection of the laws has been denied when
he is indicted by a grand jury from which members of a racial group
purposefully have been excluded" (Rose v. Mitchell, 443 U.S. at
555-556).  It has therefore "reversed the conviction and ordered the
indictment quashed in such cases without inquiry into whether the
defendant was prejudiced in fact by the discrimination at the grand
jury stage" (id. at 556).

   b. By their own terms, this Court's decisions under the Equal
Protection Clause of the Fourteenth Amendment requiring dismissal of
an indictment that is the product of a grand jury constituted through
intentional discrimination have no application here.  As petitioner
appears to concede (Br. 62), as a white male he lacks standing to
complain of discrimination against women and black persons in the
selection of forepersons.  The Court has consistently held -- from
Strauder through Rose v. Mitchell, 443 U.S. at 555 -- that the injury
that supports an equal protection attack upon an indictment is the
"brand" upon the excluded group, the "assertion of their inferiority,"
that is thought to stimulate "race prejudice which is an impediment to
securing to individuals of the (excluded) race * * * equal justice"
(Strauder v. West Virginia, 100 U.S. at 308.  Obviously, petitioner, a
white male, has suffered no such injury, even if it is assumed that
the alleged discrimination against women and blacks could have the
corrosive impact described in Strauder when limited to the selection
of a foreperson.  Petitioner does not and cannot allege that he has
suffered any injury resulting from any stigma that might have been
planted in the minds of the jury, that he has been branded as
inferior, or that he has been exposed to adverse racial prejudice that
in any way diminished the prospects for impartial and dispassionate
consideration of his case by the grand jury.

   This Court has repeatedly characterized an equal protection claim
founded upon alleged discrimination against an identifiable group in
jury selection in terms that suggest that the injury to be redressed
does not extend to persons who are not members of the class allegedly
subjected to discrimination.  For instance, in Castaneda v. Partida
the Court summarized its teaching (430 U.S. at 492 (quoting Hernandez
v. Texas, 347 U.S. 475, 477 (1954) (emphasis added)):

      This Court has long recognized that "it is a denial of equal
      protection of the laws to try a defendant of a particular race
      or color under an indictment issued by a grand jury -- from
      which all persons of his race or color have solely because of
      that race or color, been excluded * * * ."

   And the Court reiterated in Rose v. Mitchell that "'in order to
show that an equal protection violation has occurred in the context of
grand jury (foreman) 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'" (443 U.S. at
565 (emphasis added;  quoting Castaneda v. Partida, 430 U.S. at 494)).

   Similarly, in Alexander v. Louisiana, 405 U.S. 625 (1972), the
Court declined to entertain a claim that a male defendant had been
denied equal protection of the laws by Louisiana's exemption from jury
duty of women who do not volunteer for service, strongly suggesting
that the defendant lacked standing to press the claim (405 U.S. at
633):

      This claim is novel in this Court and, when urged by a male,
      finds no support in our past cases.  The strong constitutional
      and statutory policy against racial discrimination has permitted
      Negro defendants in criminal cases to challenge the systematic
      exclusion of Negroes from the grand juries that indicted them.
      Also, those groups arbitrarily excluded from grand or petit jury
      service are themselves afforded an appropriate remedy.  Cf.
      Carter v. Jury Commission, (396 U.S. 320 (1970).  But there is
      nothing in past adjudications suggesting that petitioner himself
      has been denied equal protection by the alleged exclusion of
      women from grand jury service.  /9/

   In sum, to accord the petitioner standing to raise an equal
protection claim would be inconsistent with the gravamen of such a
claim and the reasons for dispensing with a requirement that a black
defendant show that he was specifically prejudiced by discrimination
against blacks in the constitution of the grand jury or petit jury.
In declining to extend standing to seek dismissal of an indictment to
a nonmember of the class that had allegedly suffered discrimination
the Fifth Circuit has recently observed (United States v. Cronn, 717
F.2d 164, 169 (1983), petition for cert. pending, No. 83-979:

      The essence of an equal protection claim is that other persons
      similarly situated as is the claimant unfairly enjoy benefits
      that he does not or escape burdens to which he is subjected.  *
      * * Equal protection claims are of their nature personal, to be
      stated in terms of one's own rights or those of a class in which
      one claims membership;  logically (a defendant) lacks standing
      to complain of unequal treatment accorded other persons or
      classes of which he is not a member.

   Accord:  United States v. Coletta, 682 F.2d 820, 824 (9th Cir.
1982), cert. denied, No. 82-798 (Feb. 22, 1983) /10/ Moreover, as the
Fifth Circuit has also observed (United States v. Cronn, 717 F.2d at
169-170), there is no special relationship or nexus between a
defendant such as petitioner and the black or female grand jurors
allegedly suffering discrimination in foreperson selection that might
justify allowing that defendant vicariously to assert their rights.
/11/ Thus, denial of standing to petitioner to raise an equal
protection claim is required by this Court's decisions that a party
ordinarily may not assert the constitutional rights of strangers, see,
e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975);  Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) -- a principle that applies to
criminal defendants no less than other litigants.  See United States
v. Salvucci, 448 U.S. 83, 86-87 (1980);  Rakas v. Illinois, 439 U.S.
128, 133-134 (1978);  Brown v. United States, 411 U.S. 223, 230
(1973);  Alderman v. United States, 394 U.S. 165, 174 (1969).

   2. Even if petitioner had standing to complain of discrimination in
the selection of grand jury forepersons from among the members of a
properly constituted grand jury, he would not be entitled to reversal
of his conviction and dismissal of the indictment.  As petitioner
observes (Br. 63-65), Peters v. Kiff, 407 U.S. 493 (1972), held that a
white defendant had standing to seek reversal of his conviction and
dismissal of his indictment on the ground that black persons "were
systematically excluded from the grand jury that indicted him and the
petit jury that convicted him" (407 U.S. at 494 (opinion of Marshall,
J.)).  But close examination of Peters suggests that petitioner cannot
prevail upon his claim limited as it is, to discrimination in the
selection of a grand jury foreperson.

   a. Peters was decided without an opinion for the Court.  Justice
Marshall, joined by Justices Douglas and Stewart, reasoned that any
criminal defendant "has standing to challenge the system used to
select his grand or petit jury, on the ground that it arbitrarily
excludes from service the members of any race, and thereby denies him
due process of law" (407 U.S. at 504).  Justice Marshall stated that
exclusion of persons from jury service on the basis of their race
"cast doubt on the integrity of the whole judicial process" (id. at
502) and therefore implicates the right of every defendant to a
competent tribunal (id. at 501-502).  Justice Marshall reasoned (id.
at 503-504 (footnote omitted)) that exclusion of

      any large and identifiable segment of the community * * * from
      jury service * * * remove(s) from the jury room qualities of
      human nature and varieties of human experience, the range of
      which is unknown and perhaps unknowable.  It is not necessary to
      assume that the excluded group will consistently vote as a class
      in order to conclude, as we do, that its exclusion deprives the
      jury of a perspective on human events that may have unsuspected
      importance in any case that may be presented.

   To underscore the nature of the injury to a white defendant's
rights perceived in the exclusion of black persons from jury service,
Justice Marshall quoted (407 U.S. at 504 n.12) from Ballard v. United
States, 329 U.S. 187, 193-194) (1946) (footnote omitted), in which the
Court reversed the conviction of a female defendant convicted and
indicted by juries from which women had been systematically and
intentionally excluded:

      "The truth is that the two sexes are not fungible;  a community
      made up exclusively of one is different from a community
      composed of both;  the subtle interplay of influence one on the
      other is among the imponderables.  To insulate the courtroom
      from either may not in a given case make an iota of difference.
      Yet a flavor, a distinct quality is lost if either sex is
      excluded." (Emphasis added.)

   Justice White, joined by Justices Brennan and Powell, concurred in
the Court's judgment in Peters v. Kiff without joining Justice
Marshall's opinion.  Pointing to 18 U.S.C. 243, which provides that no
otherwise qualified citizen "shall be disqualified for service as
grand or petit juror" in any state or federal court "on account of
race, color or previous condition of servitude," these Justices
reasoned that "Congress (had) put cases involving exclusions from jury
service on grounds of race in a class by themselves" (407 U.S. at
505-506).  Standing was to be extended to a white defendant, in
Justice White's view, to "implement the strong statutory policy of (18
U.S.C.) 243" (id. at 507).

   b. Neither the concerns that led the Court to extend standing to
challenge exclusion of black citizens from jury service to white
defendants in Peters, nor the considerations that have led the Court
in the equal protection jury selection cases to direct dismissal of
indictments without regard to specific prejudice to the individual
defendant, are significantly implicated in the very different setting
of a challenge to the selection of a federal grand jury foreperson.

   Under the law of some states, grand jury forepersons are selected
by a process separate from that used in impaneling the grand jury, and
then tacked on to the membership of that body.  See, e.g., Rose v.
Mitchell, 443 U.S. at 548 n.2.  Under Fed. R. Crim/ P. 6(c) the
federal grand jury foreperson, by contrast, is simply selected by the
court from among the members of the grand jury.  Accordingly, any
discrimination in selection does not at all affect the overall
composition of the grand jury.  /12/ A federal grand jury is itself
required by statute to be drawn "at random from a fair cross section
of the community in the district or division wherein the court
convenes" (28 U.S.C. 1861).  This must be done by a process that
tolerates no exclusion from service "on account of race, color,
religion, sex, national origin, or economic status" (28 U.S.C. (Supp.
V) 1862), and pursuant to a written plan that the Circuit Judicial
Council has determined to conform with these requirements and the
additional criteria of 28 U.S.C. (& Supp. V) 1863(b) (28 U.S.C.
1863(a)).  It would be unrealistic, therefore, to suggest that, in the
absence of any overt manifestation of prejudice, the mere designation
of one of the grand jury's members as foreperson (an inevitable
occurrence) could "cast doubt upon the integrity of the whole judicial
process" (Peters v. Kiff, 407 U.S. at 502 (opinion of Marshall, J.))
or would "impair() the confidence of the public in the administration
of justice" (Rose v. Mitchell, 443 U.S. at 556).

   In addition, because the federal grand jury foreperson is simply
selected from among his or her peers, the concern voiced in Justice
Marshall's opinion in Peters for the narrowing of the range of
experience and perspective that occurs when "any large and
identifiable segment of the community is excluded from jury service"
(407 U.S. at 503) does not arise when the alleged discrimination
pertains to the selection of a foreperson from among the members of a
properly constituted federal grand jury.  /13/ Because the single
individual designated as foreperson necessarily cannot embody the full
range of "human nature and varieties of human experience" (ibid.), and
because substantial safeguards do assure that the constitution of the
federal grand jury as a whole serves the purposes highlighted in
Peters, a challenge to foreperson selection does not implicate the due
process rights of a criminal defendant.  See United States v. Coletta,
682 F.2d at 824.  /14/

   It seems to be petitioner's assumption that the foreperson
selection decision should be regarded as analogous to the selection of
a grand jury, only in microcosm, and should trigger precisely the same
procedural rights for criminal defendants as are associated with grand
jury selection.  But this Court has never embraced that course of
analysis.  Rather, in applying the Sixth Amendment jury trial
guaranty, for instance, the court has emphasized that the fair cross
section principle deduced from the Sixth Amendment is not to be
extended to the "microcosm" (Taylor v. Louisiana, 419 U.S. 522, 538
(1975)):

         It should also be emphasized that in holding that petit
      juries must be drawn from a source fairly representative of the
      community we impose no requirement that petit juries actually
      chosen must mirror the community and reflect the various
      distinctive groups in the population.  Defendants are not
      entitled to a jury of any particular composition, Fay v. New
      York, 332 U.S. 261, 284 (1947);  Apodaca v. Oregon, 406 U.S., at
      413 (plurality opinion);  but the jury wheels, pools of names,
      panels, or venires from which juries are drawn must not
      systematically exclude distinctive groups in the community and
      thereby fail to be reasonably representative thereof.

   Accord:  Duren v. Missouri, 439 U.S. 357, 363-364 & n.20 (1979).
See also id. at 371-373 n.* (Rehnquist, J., dissenting);  compare
Swain v. Alabama, 380 U.S. 202, 221-222 (1965), with id. at 222-224.
So, too, here.  The principle underlying Peters v. Kiff should not be
mechanically extended to reach situations in which the considerations
that inform that decision have no application.

   c. At bottom, the claim that discrimination limited to the
designation of a foreperson from among his or her fellow grand jurors
requires the dismissal of an indictment should fail because the core
concerns expressed in Strauder v. West Virginia and its progeny as to
the debilitating effect of discrimination in jury selection upon the
jury's ability to administer justice impartially are present, if at
all, only in the most attenuated form here.  The grand jury has only
one foreperson.  The members of the grand jury are required to be
chosen at random from a fair cross-section of the community.  In these
circumstances the identity of the foreperson of any given grand jury
could not suggest to its members any official tolerance for a rule of
unequal justice.

   De jure exclusion of blacks from all jury participation such as was
at issue in Strauder, or the substantial underrepresentation of
minority group members considered in subsequent equal protection
decisions, flaunts discrimination in a manner that may well affect the
jury's perceptions, affixing a "brand" of "inferiority" upon persons
of the disfavored group so as to foster less than impartial
consideration of grand jury targets belonging to such groups.  But the
grand jury typically operates out of the public eye.  Cf. Fed. R.
Crim. P. 6(e) (2).  And there is no reason to believe -- and
petitioner does not claim -- that the identity and race or gender
characteristics of the forepersons of various grand juries over time
are matters generally known to the public -- or to the members of a
given grand jury.  Accordingly, it is not at all apparent how
discrimination limited to the selection of the foreperson from among a
grand jury drawn from a representative sampling of the community could
become manifest at all, let alone sufficiently notorious to stigmatize
minority defendants and thereby justify a presumption that the
integrity of the grand jury has been destroyed.  Thus there is no
basis in this situation for dismissing an indictment returned by a
validly constituted grand jury, absent a showing of actual prejudice
to the defendant.

   A different result might be warranted if a black or female
defendant could show an open and notorious practice by the supervising
court of disqualifying black or female grand jurors for service in the
impanelment process, or explicitly excluding black or female grand
jurors from consideration as forepersons, by reason of their race or
sex, or a similar pattern of action by the court that creates a
factual predictate for applying the stigma analysis of Strauder.
Petitioner does not claim that any such evidence of discrimination
exists in this case, and the record does not support any such claim.

   d. We recognize, of course, that in Rose v. Mitchell, 443 U.S. at
551-559, the Court rejected the view, espoused there by Justice
Stewart joined by Justice Rehnquist (id. at 574-579), that a
defendant's conviction by a properly constituted petit jury bars any
challenge to the indictment on the ground that the grand jury was
improperly constituted.  The argument advanced here is not
inconsistent with that holding.  /15/ The Court concluded in Rose, 443
U.S. at 554-559, that because the constitutional policy against racial
discrimination is especially strong, and because discrimination in
jury selection operates as a brand of inferiority that undermines the
impartial administration of justice, the remedy of reversal of a
conviction and dismissal of an indictment should remain available as a
means of vindicating Fourteenth Amendment rights.  But, as we have
explained, the due process and equal protection rights of defendants
simply are not significantly implicated when discrimination only in
the selection of a foreperson from among the members of a grand jury
drawn from a fair cross section of the community is alleged.  And as
we explain below (pages 40-50), the costs associated with the remedy
petitioner seeks are substantially greater than those associated with
challenges to the constitution of the grand jury as a whole, and
alternative remedies sufficient to protect the equal protection rights
of all persons to serve as grand jury forepersons are available.

   In any event, the remedial issue presented here is not analogous to
that considered in Rose v. Mitchell.  Before a defendant may be tried
upon a criminal charge he must be accused.  Accusation thus plays a
critical role in the prosecution process;  without it no conviction
would be possible.  Accordingly, even though the states are not
constitutionally required to proceed by indictment (see Rose v.
Mitchell, 443 U.S. at 575 n.2 (Stewart, J., concurring)), defendants
are entitled to insist that "those States that do employ grand juries
* * * comply() with the commands of the Fourteenth Amendment in the
operation of those juries" (Rose v. Mitchell, 443 U.S. at 557 n.7).
But the foreperson of the grand jury has no separate role in the
course of the prosecution comparable to that of the grand jury as a
whole.  His concurrence is not even necessary to the validity of an
indictment.  Frisbie v. United States, 157 U.S. 160, 163-165 (1895);
Fed. R. Crim. P. 6(c) advisory committee note 18 U.S.C. App. at 568.
And the foreperson's actions and responsibilities are carried out
entirely in the context of the operation of the grand jury.  He has no
authority apart from that of the grand jury as a whole to act in a
manner that determines or influences whether a defendant is to be
prosecuted.  Thus there is no analogy to be drawn between the
relationship of the foreperson to the grand jury and that of the grand
jury to the trial jury.  In sum, nothing in Rose v. Mitchell suggests
that scrutiny of the selection of forepersons from among the grand
jury's members at the behest of a criminal defendant, separate and
apart from any challenge to the constitution of the grand jury as a
whole, is necessary to preserve any right of the defendant.

   3. Rather than addressing the policies of Peters v. Kiff and Rose
v. Mitchell, petitioner's argument that a defendant must be permitted
to challenge his indictment by alleging discrimination limited to the
selection of a foreperson from among the members of a federal grand
jury is wholly divorced from any analysis of this Court's decisions.
Compare Pet. Br. 22-46 with id. at 47-77.  Petitioner's argument is
narrowly gauged to dispute the court of appeals' statement (Pet. App.
A17) that the duties of a federal grand jury foreperson are
"ministerial." Relying upon the tasks assigned to the foreperson
according to the Judicial Conference's Handbook for Federal Grand
Juries, the testimony of federal judges in other cases as to their
criteria for selecting forepersons, and the views of certain "social
psychiatrists" as to the nature of authority and interpersonal
influence in group processes, petitioner argues that the foreperson of
a federal grand jury is vested with such "singular power and
authority" (Pet. Br. 22) that defendants should be permitted to
challenge an indictment by alleging discrimination limited to the
selection of the foreperson.  Petitioner's characterization of the
role of the foreperson is considerably overdrawn.  More to the point,
however, petitioner's quarrel with the court of appeals' assessment of
the grand jury foreperson's role does not disclose any attribute of
that role that implicates the policies underlying the Court's
decisions addressing discrimination in the selection of a grand jury
or petit jury.

   Unlike the grand jury itself, an institution the operation of which
is required by the Fifth Amendment, the office of the foreperson is
not a creature of the Constitution or any federal statute.  Rather, it
is a traditional office, which long existed without any statutory
foundation, /16/ that is currently reflected in the Federal Rules of
Criminal Procedure.  Fed. R. Crim. P. 6(c) provides, in its entirety:

      The court shall appoint one of the jurors to be foreman and
      another to be deputy foreman.  The foreman shall have power to
      administer oaths and affirmations and shall sign all
      indictments.  He or another juror designated by him shall keep a
      record of the number of jurors concurring in the finding of
      every indictment and shall file the record with the clerk of the
      court, but the record shall not be made public except on order
      of the court.  During the absence of the foreman, the deputy
      foreman shall act as foreman.

   These duties -- administering of oaths, keeping of records, and
attesting to the formal validity of documents -- are essentially those
of a clerk.  The office of foreperson effectively provides the grand
jury with a clerical official without jeopardizing the confidentiality
of grand jury proceedings.  The explanatory notes of the Advisory
Committee on Rules that accompany Rule 6(c) do not suggest any broader
role for the foreperson.  Rather, they simply state that (with the
exception of the creation of the position of deputy foreman, an
innovation under the rules) the Rules merely continued pre-existing
practices.  18 U.S.C. App. at 568.  The only specific indication of
the authority of the foreman is negative:  consistent with Frisbie v.
United States, 157 U.S. at 163-165, it is noted that "(f)ailure of the
foreman to sign or endorse the indictment is an irregularity and is
not fatal" to the effectiveness of the indictment.  18 U.S.C. App. at
568.  Accordingly, the court of appeals' characterization of the
foreperson's duties as ministerial is accurate.  Accord:  United
States v. Aimone, 715 F.2d 822, 827 (3rd. Cir. 1983), petitions for
cert. pending sub nom.  Dentico v. United States, No. 83-681 and Musto
v. United States, No. 83-690.

   Nor do the additional duties of the grand jury foreperson reflected
in the Judicial Conference's model Handbook For Federal Grand Juries
(see Pet. Br. 24-28) or in the Eleventh Circuit's opinion in United
States v. Cross, 708 F.2d 631, 637 (1983), petition for cert. pending,
No. 83-1037 (see Pet. Br. 29-30), even if actually performed in a
given district, /17/ materially alter this assessment.  Most of these
duties are purely administrative or clerical:  excusing the attendance
of a grand juror from a scheduled session in an emergency, determining
the need for an interpreter, signaling the commencement of
deliberations when all testimony and evidence have been received and
all witnesses and agents of the grand jury have left the room,
reporting the actions of the grand jury as necessary to the court,
collecting notes so as to preserve the security of the grand jury
proceedings, and maintaining order in the grand jury.  In other
instances, the foreperson may act as a conduit for exchange of
information between the prosecutor and the grand jury or may be
consulted by the prosecutor to determine the grand jury's disposition
regarding issuance of a subpoena.  But there is no evidence or other
reason to believe that in these matters the foreperson acts on his or
her own, rather than as the instrument and agent of the grand jury.
Cf. Breese v. United States, 226 U.S. 1, 10 (1912).  Petitioner also
observes that the foreperson typically is the first of the grand
jurors to question grand jury witnesses after the prosecutor has
completed his examination.  But whatever status may attach to the
foreperson as a result of this custom, it is scarcely sufficient to
elevate the foreperson, vested by law with no more than the single
vote accorded his or her colleagues in determining whether to return
an indictment, to an independent position of authority to govern the
rights of a defendant.  /18/

   In any event, petitioner's argument that the foreperson has
relatively significant duties and status is simply misdirected.  The
question is not, after all, whether the position of foreperson is in
some abstract sense "constitutionally significant." For instance, we
do not doubt that black or female grand jurors arbitrarily deprived of
the opportunity to serve as foreperson have suffered a deprivation of
equal protection of the laws that may be redressed in an appropriate
civil proceeding.  See page 48, infra.  But petitioner's claim cannot
be decided by a standard measuring whether the foreperson's job is
important enough to make its performance desirable or worthwhile as a
part of citizenship -- any more than a defendant should be allowed to
contest his indictment by showing discrimination in the employment of
security or clerical personnel by the court, in the employment of
attorneys by the prosecutor, or in appointment of judges by the
President.  Rather, petitioner must show that the role of the
foreperson is such that discrimination in his or her selection invades
the distinctive interests of a defendant that underlie Strauder, Rose
and Peters.  Measured by this standard, petitioner's claim falls far
short of the mark.  Whatever informal status or influence the
foreperson may enjoy, it scarcely negates the efficacy of proper
selection of the grand jury as a whole as a guaranty that a
representative spectrum of "human nature and varieties of human
experience" (Peters v. Kiff, 407 U.S. at 503) is brought to bear upon
the decisions made by the grand jury.  Nor does any influence or
status enjoyed by the foreperson materially increase the highly remote
prospect that selection of one member of the body as a foreperson will
be perceived as relegating any race or sex to an inferior legal
status.

   For similar reasons, the other evidence adduced by petitioner to
demonstrate the "constitutional significance" of the federal grand
jury foreperson does not advance his cause.  We need not quarrel with
petitioner's characterization of the testimony of the various federal
judges who have been required to account for their foreperson
appointment practices in cases similar to this one (Pet. Br. 31
(quoting in part, United States v. Cross, 708 F.2d at 636)):

      Almost uniformly (the federal judges) select as forepersons
      those (grand jurors) with good management skills, strong
      occupational experience, the ability to preside, good
      educational background, personal leadership qualities, and
      someone who "can not easily be led by the United States
      Attorney."

   Nor do we doubt that federal judges "take the responsibility of
appointing a grand jury foreperson with great concern" (Pet. Br. 32)
But it hardly stands to reason, as petitioner suggests, that the
district judges entrusted with the supervision of the grand jury would
not give careful attention to the selection of a foreperson, and would
not bother to look for the qualities described by petitioner unless
they believed that "there are special powers or duties in the
foreperson far beyond that borne by the other jurors" (Pet. Br.
36-37).

   The selection of the foreperson is entrusted to the district court
by law (Fed. R. Crim. P 6(c)).  It is hardly significant that a
federal judge should carry out any such duty with diligence and care.
And it is only rational that qualities such as those listed by
petitioner should be sought after by distrtct judges in designating a
foreperson.  While the duties of the foreperson are generally
administrative or clerical in character, it is still important to the
administration of justice that they be carried out properly and
effectively.  But neither the testimony cited by petitioner, nor the
apparent judicial consensus that a certain level of experience and
personal skills is desirable in a foreperson, indicates that
discrimination in selecting a foreperson frustrates the right of a
criminal defendant to a tribunal drawn from a representative sampling
of the community or to be free from stigmatizing offical action
reflected in the jury room.

   The "theoretical evidence" provided by "social psychiatrists" cited
by petitioner (Br. 37-44) is equally deficient in this critical
respect.  Conceivably the designation of one grand juror as foreperson
by the district court enhances to some extent the status of that grand
juror in the eyes of his or her colleagues and provides the foreperson
with some degree of informal influence greater than his actual
authority.  But the selection of a foreperson still does not deprive a
defendant of whatever benefit may be derived from the varied points of
view of the members of the grand jury or create a substantial
appearance of official discrimination within the jury room.  The fact
remains that, whatever the foreperson's influence, it can operate to
affect the defendant's rights only through the body of the grand jury
as a whole.  See United States v. Aimone, 715 F.2d at 827.  /19/

   Unlike petitioner, the court of appeals carefully focused its
examination of the role of the federal grand jury foreperson, not upon
the abstract importance of the tasks associated with the office, but
upon the impact of foreperson selection on the distinctive interests
of criminal defendants (see Pet. App. A17-A18;  see also page 8,
supra).  Nothing in petitioner's portrayal of the role of the
foreperson calls in question the court of appeals' appraisal of his
speculative contention (Pet. App. A18) :

      Any suspicion that (the foreperson's) office may enlarge his
      capacity to influence other grand jurors is too vague and
      uncertain to warrant dismissal of indictments and reversals of
      convictions.

   4. The alternative legal bases for petitioner's claim adduced by
petitioner and the amici do not warrant any different result here.
/20/

   a. Petitioner appears to invoke (Br. 62-70) this Court's Sixth
Amendment decisons requiring petit juries to "be drawn from a source
fairly representative of the community" (Taylor v. Louisiana, 419 U.S.
at 538;  see also Duren v. Missouri, 439 U.S. at 363-364).  Of course,
the Sixth Amendment, which assures "the accused" in "all criminal
prosecutions" the "right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been
committed" plainly has no application to the constitution of a grand
jury.

   Amicus Curiae ACLU suggests (Br. 9-18), however, that the Fifth
Amendment Grand Jury Clause, which provides that

         No person shall be held to answer for a capital, or otherwise
      infamous crime, unless on a presentment or indictment of a Grand
      Jury,

should be interpret4d to embody a "fair cross section" guaranty for
grand jury selection comparable to the Fifth Amendment's requirements
for petit jury selection.  We may assume that ACLU is correct in this
regard.  See Castaneda v. Partida, 430 U.S. at 509-510 (Powell, J.,
dissenting).  In any event, as the Eleventh Circuit has observed, the
Jury Selection and Service Act of 1968, 28 U.S.C. 1861, extends the
fair cross section right to include the venire of a federal grand
jury.  United States v. Perez-Hernandez, 672 F.2d at 1384;  see page
23, supra.  But invocation of the Fifth Amendment Grand Jury Clause,
the Jury Selection and Service Act of 1968 (see LDEF Br. 14-18), or
the fair cross section concept borrowed from Sixth Amendment cases
provides no basis for a criminal defendant's challenge to his
indictment predicated upon underrepresentation of blacks or women
among federal grand jury forepersons.

   In Taylor v. Louisiana, the Court set forth the basis for its
conclusion that petit juries must be drawn from a fair cross section
of the community, explaining that among the purposes of a jury is (419
U.S. at 520)

      to make available the commonsense judgment of the community as a
      hedge against the overzealous or mistaken prosecutor and in
      preference to the professional or perhaps over-conditioned or
      biased response of a judge.  Duncan v. Louisiana, 391 U.S., at
      155-156.  This prophylactic vehicle is not provided if the jury
      pool is made up of only special segments of the populace or if
      large, distinctive groups are excluded from the pool.  Community
      participation in the administration of the criminal law,
      moreover, is not only consistent with our democratic heritage
      but is also critical to public confidence in the fairness of the
      criminal justice system.

   But as we have previously explained (pages 20-25), these
representational values, which also underlie Peters v. Kiff, are fully
secured by the Jury Selection and Service Act's requirement that the
grand jury be drawn at random from a fair cross section of the
community.  Identification of one member of that representative group
as foreperson is an inevitable occurrence that does not impair the
grand jury's ability to serve as the voice of the community.  Thus, in
holding the fair cross section principle inapplicable to foreperson
selection, the Eleventh Circuit has observed (United States v.
Perez-Hernandez, 672 F.2d at 1385):

      (T)he fair cross section analysis is only applicable to groups,
      such as a grand or petit jury, which can represent society as a
      whole.  One person alone cannot represent the divergent views,
      experience, and ideas of the distinct groups which form a
      community.  Thus, a grand jury foreman is a member of the group
      which represents a cross section of his or her community, but he
      or she cannot be a fair cross section of that community.

   See also Ballew v. Georgia, 435 U.S. 223, 239 (1978) (jury of five
too small to fulfill representational requirements of Sixth
Amendment);  compare Williams v. Florida, 399 U.S. 78, 100 (1970)
(jury of six large enough to provide "fair possibility for obtaining a
representative cross-section of the community") /21/

   Any contention that the fair cross section requirement should be
extended to the selection of the foreperson departs entirely from the
underlying constitutional text.  The explicit guaranties of trial by
jury and indictment by a grand jury may reasonably be said to
contemplate bodies of a particular character.  But the office of grand
jury foreperson has no constitutional foundation at all;  it can
hardly be claimed that a particular means of designating a foreperson
implicates the constitutional right to indictment.  Petitioner and the
amici offer no historical evidence that a particular mode of
foreperson selection is integral to the very notion of a grand jury.
Thus because the purpose of the fair cross section requirement is not
served by its extension to foreperson selection, there is no
justification for bestowing any such novel right upon criminal
defendants.

   Moreover, in Taylor v. Louisiana, the Court pointedly declined to
extend the fair cross section requirement beyond jury venires or lists
to the jury actually impanelled, stating, "we impose no requirement
that petit juries actually chosen must mirror the community and
reflect the various distinctive groups in the population" (419 U.S. at
538.  There is obviously less reason to extend that requirement to the
designation of one member as foreperson -- a designation which
inherently cannot reflect fair cross section values in any particular
case.

   b. Amicus LDEF alone argues (Br. 14-18) that the Jury Selection and
Service Act of 1968, 28 U.S.C. (& Supp. V) 1861 et seq., is somehow
applicable to the selection of federal grand jury forepersons.  Amicus
concedes (Br. 15) that nothing on the face of the Act is applicable to
discrimination in foreperson selection.  Instead LDEF suggests that 28
U.S.C. 1861, which states the policy of the United States "that all
citizens shall have the opportunity to be considered for service on
grand and petit juries in the district courts of the United States,"
is broad enough to encompass the selection of grand jury forepersons.
We disagree.

   Section 1861 states, at the outset, the policy of the United States
that all litigants entitled to trial by jury "shall have the right to
grand and petit juries selected at random from a fair corss section of
the community." If Congress had meant to extend this right to
selection of grand jury forepersons it assuredly would have said so
explicitly.  This is especially so because to do so would have run
contrary to this Court's established teaching that defendants are not
entitled to a jury of any particular composition.  See Fay v. New
York, 332 U.S. 261, 284 (1947).

   The structure and provisions of the balance of the Jury Selection
and Service Act confirm that the Act does not extend so far as LDEF
suggests.  Following an introductory statement of policy and
declaration of rights (28 U.S.C. 1861 and 1862), the Act proceeds to
lay out, in extraordinary detail, procedures for establishing plans
for random jury selection, for drawing names from a master list of
qualified jurors, and for summoning jury panels.  Qualifications for
jury service are spelled out, as are procedures for challenging
compliance with mandated selection procedures.  See 28 U.S.C. (& Supp.
V) 1863-1867.  No mention of the office of foreperson or the selection
of a grand jury foreperson is anywhere to be found, however.  And the
remedial provisions of the Act make clear that it does not cover
foreperson selection.  They provide that a criminal defendant or the
government "may move to dismiss the indictment or stay the proceedings
* * * on the ground of substantial failure to comply" with the Act's
requirements "in selecting the grand or petit jury." 28 U.S.C. 1867(a)
and (b).  No comparable remedy is provided for improper foreperson
selection.  /22/

   c. Petitioner and amicus LDEF argue (Pet. Br. 70-76, LDEF Br.
4-13);  finally, that this Court should exercise supervisory power to
reverse the conviction of a defendant where discrimination in the
selection of the grand jury foreperson is established.  But the cases
upon which petitioner and LDEF rely /23/ simply establish the right of
"any defendant to challenge the arbitrary exclusion from jury service
of his own or any other class," a right that subsequently has been
recognized as premised upon the Sixth Amendment right to a jury drawn
from a fair cross section of the community.  See Peters v. Kiff, 407
U.S. at 500 & n.9 (opinion of Marshall, J.).  Nothing in these cases
-- each of which entails exclusion of a substantial class of eligible
persons from the jury as a whole -- establishes that exercise of
supervisory power to reverse a defendant's conviction is appropriate
when any discrimination is limited to the selection of a foreperson
from among the members of a properly constituted grand jury.
Moreover, the Court has emphasized that "the supervisory power does
not extend so far" as to "confer on the judiciary discretionary power
to disregard the considered limitations of the law it is charged with
enforcing." United States v. Payner, 447 U.S. 727, 737 (1980).
Accordingly, if, as we contend, the principles of equal protection and
due process enunciated in Strauder and its progeny and Peters v. Kiff,
do not require that a defendant's conviction be reversed and his
indictment dismissed in the circumstances of this case, the
supervisory power of this Court, and of the lower federal courts
should not be employed to circumvent deliberately established limits
upon the procedural rights recognized in those cases.  /24/

 B. Scrutiny of Foreperson Selection Practices At the Behest of a
Criminal Defendant in the Manner Proposed by Petitioner Would Impose
Substantial and Unwarranted Burdens upon the Administration of Justice

   In Rose v. Mitchell, 443 U.S. at 557, the Court acknowledged that
there are "costs associated with" permitting a criminal defendant to
challenge his indictment on the basis of discrimination in jury
selection against members of a population group that includes the
defendant.  But the Court concluded that those costs were outweighed
in that setting by the policy of combating racial discrimination.  As
we have explained above, the discrimination alleged here simply does
not engage the interests of a criminal defendant that the Court has
guarded in previous equal protection and due process rulings regarding
jury selection.  In addition, the costs for the administration of
justice associated with recognizing a defendant's right to challenge
his indictment on the basis of alleged discrimination limited to the
naming of the foreperson are substantially greater than those that are
present when the allegation is that the entire grand jury or petit
jury has been selected in a discriminatory manner.

   1. The rule that petitioner urges upon this Court is borrowed from
cases where discrimination in the constitution of the grand jury as a
whole is alleged.  See, e.g., Pet. Br. 59-61 (quoting Castaneda v.
Partida, 430 U.S. at 494-495).  Thus, like the Eleventh Circuit,
petitioner maintains:

      In order to support a prima facie case in the context of grand
      jury foremen, a defendant must establish three factors.  First,
      the group allegedly discriminated against must be "one that is a
      recognizable distinct class, singled out for different treatment
      under the laws." Second, the group must be substantially
      underrepresented in the office of grand jury foreman over a
      significant period of time.  Third, in order to complete the
      presumption of discrimination raised by the statistical
      evidence, the defendant must show that selection procedure is
      not racially neutral or is susceptible to abuse as a tool of
      discrimination.

   United States v. Perez-Hernandez, 672 F.2d at 1386-1387 (quoting
Castaneda v. Partida, 430 U.S. at 494).  If such a prima facie case is
made out by showing historic underrepresentation of women or blacks,
then the burden of rebutting an inference that this statistical
pattern is attributable to intentional discrimination is said to shift
to the government (Pet. Br. 61 (quoting Castaneda v. Partida, supra);
I C.A. App. 207;  see also United States v. Perez-Hernandez, 672 F.2d
at 1387).

   In mechanically borrowing this "rule of exclusion" from grand jury
and petit jury selection cases, petitioner and the Eleventh Circuit
have failed to recognize that its operation is materially different in
the context of a challenge to the selection of the foreperson.  /25/
It is a misleading euphemism to state, in this context, that when
statistical proof of underrepresentation of some group is adduced, the
burden shifts to the "government" to demonstrate that the selection
process did not entail discrimination.  The foreperson of a federal
grand jury is selected by the district judge who impanels and
supervises the grand jury.  Unlike more conventional challenges to the
constitution of a grand jury or petit jury, therefore -- where
rebuttal may be accomplished by adducing written records and the
testimony of clerical personnel -- the only means realistically
available to "the government" to rebut an inference of discrimination
in the selection of forepersons is to call as witnesses the United
States District Judges that have appointed grand jury forepersons.
See United States v. Cabrera-Sarmiento, 533 F. Supp. 799, 805 (S.D.
Fla. 1982).  /26/ The sitting judges of the district court are then
disqualified to hear such a case, and a visiting judge from another
district or the court of appeals must be designated for this purpose.
/27/ The district judges are required to testify in considerable
detail as to the methods they use for foreperson selection, the
criteria employed, and any discriminatory practices.  See, e.g.,
United States v. Breland, 522 F. Supp. 468, 471-474 (N.D. Ga. 1981).

   Judge Hatchett of the Eleventh Circuit, who has heard a number of
such cases sitting by designation in the district courts, has
explained that "(b)ecause the elements of a prima facie case remain
constant from one defendant to another, it is theoretically possible
for a different defendant to appear each week, presenting the same
statistics showing underrepresentation and questioning the same judges
as to their mental intent in selecting forepersons." United States v.
Cabrera-Sarmiento, 533 F. Supp. at 806.  Moreover, "each defendant
indicted by a grand jury (may apparently) bring() a new challenge
notwithstanding the fact that the judge in question has already
testified to the satisfaction of the factfinder that he did not harbor
discriminatory intent in selecting forepersons" (ibid.).  /28/ The
result is described in justifiably pointed terms in Cabrera-Sarmiento
(ibid.):

      We are witnessing a criminal proceeding in which the defendant
      lounges in the gallery watching his lawyer try the system.  A
      parade of judges, clerks of court, and other court personnel
      take the witness stand to defend their every action and their
      character under cross-examination.  /29/

   We think it evident that this form of proceeding entails a
substantial disruption of the administration of justice, diverts the
court from its central tasks, and does little to bolster "the
confidence of the public in the administration of justice" (Rose v.
Mitchell, 443 U.S. at 556).  But we do not accept Judge Hatchett's
suggestion (Cabrera-Sarmiento, 533 F. Supp. at 806) that this must be
"the end result of Rose v. Mitchell." Rather, in light of the
substantial burden imposed upon the administration of justice, the
disfavor with which recourse to judicial testimony is generally
viewed, /30/ and the minimal impact, if any, of the alleged
discrimination on defendants' rights, we think the principles
underlying Rose v. Mitchell and its progenitors do not require this
exercise in judicial self-examination.

   The substantial disproportion between the costs and benefits of
permitting defendants to require the judges of the district court to
account for their foreperson selection practices is highlighted by the
results of those cases -- all in the Eleventh Circuit -- in which the
government has been put to its rebuttal in this manner.  In every
instance that we are aware of where the issue was reached, the court
determined that the judicial testimony adduced by the govenment
dispelled any inference of discrimination.  /31/ Strikingly, these
determinations were made on the basis of the very same testimony that
petitioner characterizes as follows (Pet. Br. 31 (quoting United
States v. Cross, 708 F.2d at 636)):

      Almost uniformly (the district judges) select as forepersons
      those with good management skills, strong occupational
      experience, the ability to preside, good educational background,
      personal leadership qualities(,) and someone who "can not easily
      be led by the United States Attorney."

   Petitioner also tells us (Pet. Br. 32) (and we agree) that the
testimony shows that district judges take their appointment
responsibility very seriously, and carefully review pertinent data
about grand jurors in applying those criteria.  Unlike petitioner we
find no warrant in this testimony for continuing the onerous practice
required by the Eleventh Circuit.  On the contrary, the testimony
canvassed in petitioner's brief and in the decided cases confirms that
even where statistical underrepresentation of blacks and women in the
position of foreperson has been found, the cause is highly unlikely to
be unlawful intentional discrimination.  Because it appears so
unlikely that statistical underrepresentation of women or minority
group members is attributable to intentional discrimination in this
setting, a presumption to that effect that triggers a burdensome and
sterile exercise in judicial self-scrutiny at the behest of a criminal
defendant is not warranted.  See United States v. Goodwin, 457 U.S.
368, 384 (1982).  /32/

   2. The salutary policy of combating racial or gender discrimination
in the administration of justice does not require that defendants be
permitted to seek dismissal of their indictments on the basis of
alleged discrimination in the selection of a federal grand jury
foreperson;  nor is this remedy needed to vindicate by proxy the
rights of grand jurors who allegedly have been denied fair
consideration for appointment as forepersons.  Other, more
appropriate, means are available to assure that the policy of
nondiscrimination is given effect in this setting.  Because the
allegation of discrimination in foreperson selection is directed
against a United States district judge -- and effectively constitutes
a claim of infidelity to the judge's oath of office (see 28 U.S.C.
453) -- it is fitting that recourse be made to these alternative
procedures, which generally are designed to provide this Court, the
Judicial Conference of the United States, and the Circuit Judicial
Councils with effective collegial and supervisory means of eliminating
impediments to the administration of justice arising from the
operations of the judicial system or the actions of any individual
federal judge.

   In any instance where one or more individuals believe that they
have been unfairly passed over by the court in the selection of a
grand jury foreperson as a result of intentional discrimination, or
where affected individuals believe that any United States district
judge has engaged in a pattern of such discrimination, such practices
may properly be called to the attention of the Judicial Council for
the appropriate circuit, established pursuant to 28 U.S.C. (& Supp. V)
332.  The judicial councils are empowered to address "impediment(s) to
the adminsitration of justice" and are directed to "make all necessary
and appropriate orders for the effective and expeditious
administration of justice" within their respective circuits (28 U.S.C.
(Supp. V) 332 (d) (1) and (3)).  In order to provide any necessary
evidentiary basis for entry of such an order, moreover, the judicial
councils are authorized "to hold hearings, to take sworn testimony,
and to issue subpoenas and subpoenas duces tecum" (28 U.S.C. (Supp. V)
332(d) (1)).  "All judicial officers" within the circuit are required
promptly to carry out all orders of the judicial council (28 U.S.C.
(Supp. V) 332(d) (2)).  We submit that the mechanism thus created is
the appropriate mechanism for correcting any improper grand jury
foreperson selection practices that are thought to prevail in any
district court.  /33/

   The Judicial Conference of the United States also has a role to
play in rectifying a pattern of discriminatory foreperson selection,
should it appear that a serious problem of this natue actually exists.
 The Conference is required to "comprehensive(ly) survey" the business
of the federal courts and "continuous(ly) study * * * the operation
and effect of the general rules of practice and procedure" in effect
for United States Courts.  28 U.S.C. (& Supp. V) 331.  Toward that
end, the Conference may establish any necessary standing committees to
investigate matters within its jurisdiction.  Such committees are
empowered, like the Judicial Councils, to hold hearings, take sworn
testimony, and issue subpoenas in connection with their exercise of
authority.  Ibid.  Should it appear upon investigation that the
present provisions of the Fed. R. Crim. P. 6 (c) are inadequate to
ensure that foreperson selection is carried out in a nondiscriminatory
manner, the Judicial Conference is empowered to recommend to this
Court any amendment to that Rule necessary to carry out that salutary
objective.  28 U.S.C. (& Supp. V) 331.  And, of course, this Court is
empowered to prescribe such rules as may be appropriate for this
purpose.  18 U.S.C. 3771.  Thus, appropriate means are at hand for
eliminating any discrimination that may exist, without resort to
reversing criminal convictions and dismissing indictments with the
attendant windfall to defendants who have suffered no invasion of
their rights.  Cf. United States v. Hasting, slip op. 6-7 & n.5.

   In addition to the foregoing procedures, it appears that members of
any class of persons unlawfully excluded from service as grand jury
forepersons could maintain a civil action for injunctive relief
challenging the offending practices on behalf of themselves or any
affected calss.  See Carter v. Jury Commission, 396 U.S. 320, 329-330
(1970);  Turner v. Fouche, 396 U.S. 346 (1970).  /34/ This remedy too
"has the advantage of allowing the members of the class actually
injured by * * * discrimination to vindicate their rights without the
heavy societal cost entailed when valid criminal convictions are
overturned" (Rose v. Mitchell, 443 U.S. at 578 (Stewart, J.,
concurring in the judgment)).

   Even without litigation or formal action by appropriate judicial
authority there is good reason to believe that the problem of
underrepresentation of blacks and women among federal grand jury
forepersons is a vanishing one.  As the court of appeals noted (Pet.
App. A14 n.6), subsequent to the return of the indictment in this
case, blacks and women have been represented among grand jury
forepersons in the Eastern District of North Carolina.  Moreover, the
filing of motions to dismiss indictments such as the one in the
present case, and the attention the resulting litigation has by now
focused upon the need for appropriate foreperson selection methods,
coupled with increased sensitivity throughout the legal system toward
the importance of race- and sex-blind justice generally, is likely to
ensure fair representation of all racial and gender groups among
federal grand jury forepersons in the future.  /35/

   In light of these effective avenues for assuring full
implementation of the strong policy against discrimination in the
administration of justice as it applies to the selection of federal
grand jury forepersons, there is no reason to allow criminal
defendants to seek dismissal of their indictments by alleging
discrimination in this context.  Indeed, because of the striking
disproportion between the wrong, if any, suffered by a defendant such
as petitoner and the remedy sought, reversal of convictions and
dismissal of indictments on the ground of discriminatory
underrepresentation of members of a particular class in selection of
forepersons from among the members of properly constituted grand
juries would undermine, rather than bolster "the confidence of the
public in the administration of justice" (Rose v. Mitchell, 443 U.S.
at 556).  As Judge Morgan stated in United States v. Perez-Hernandez,
672 F.2d at 1389 (concurring opinion), one

      must wonder how society would view the integrity of our courts
      if unharmed criminal defendants are released because of
      discrimination which is unrelated to any significant part of the
      judicial system.  The social costs are not justified in this
      instance.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   MARCH 1984

   /1/ Petitioner's scheme began to unravel in August 1979, when
DNRCD'S Independent Monitoring Unit began to audit Precision Graphics'
performance under its CETA contract.  Based upon the results of the
audit, the matter was referred for possible prosecution.  The
discrepancy between the rate of the monthly maintenance charge exacted
by Precision Data, and its own maintenance costs was the basis for
Count 3 of the indictment.  The discrepancy between the monthly
computer rental charged and the cost to Precision Data of the
equipment was the basis for Count 4.  The rental charged for the
period prior to installation of the computer was the basis for Count
5.

   /2/ Petitioner's co-defendant Levi, a black male, apparently joined
in petitioner's motion (see I C.A. App. 211).

   /3/ O'Reilly testified that, according to the census, 30% of the
district population was black in 1970, whereas in his sample 20% of
the jurors were black in 1977 (J.A. 70-71).  Apparently he regarded
the census population as evenly divided between males and females (see
J.A. 88).

   /4/ In the district court, petitioner did not explicitly identify
the constitutional basis for his claim of foreperson discrimination.
But his citation of Rose v. Mitchell, and his effort to bring this
case within the scheme allocating the intermediate evidentiary burdens
applied there, indicates that the nature of the claim was intentional
discrimination in violation of equal protection principles, applicable
under the Due Process Clause of the Fifth Amendment.

   /5/ This Court limited the grant of certiorari to the third
question presented by the petition, declining to consider, inter alia,
petitioner's selective prosecution claim (compare Pet. Br. 96-97).

   /6/ On appeal petitioner and his co-defendant abandoned their
challenge to the jury selection procedure used in the District and the
constitution of the grand jury taken as a whole (Pet. App. A14).  The
district courtS ruling respecting discrimination in foreperson
selection was challenged in the brief of petioner's black
co-defendant, Levi, on an equal protection theory (Levi C.A. Br.
8-15).  In that brief it was also argued (at 15) that petitioner had
standing to press the equal protection claim as well.  That assertion
was supported only by citation of cases presenting Sixth Amendment
fair cross section claims (Durren v. Missouri, 439 U.S. 357 (1979) and
Taylor v. Louisiana, 419 U.S. 522 (1975) or due process claims (Peters
v. Kiff, 407 U.S. 493 (1972) (Levi C.A. Br. 15).  Petitioner simply
adopted his co-defendant's argument on this point (Pet. C.A. Br. 45).

   /7/ Because the guaranty against invidiously discriminatory
official action by agencies of the United States has been located in
the Fifth Amendment Due Process Clause, see Bolling v. Sharpe, 347
U.S. 497, 499 (1954), petitioner's formulation is inherently
ambiguous.

   /8/ I.e., United States v. Cross, 708 F.2d 631 (1983), petition for
cert. pending, No. 83-1037, and United States v. Perez-Hernandez, 672
F.2d 1380 (1982).

   /9/ The Court ultimately rested its decision in this branch of
Alexander upon its practice of eschewing decision of constitutional
issues where avoidable, observing that the conviction challenged there
had been reversed on other grounds, and that the sex discrimination
issue might become moot (405 U.S. at 633-634).  But the Court's
skeptical appraisal of the defendant's standing to raise an equal
protection claim is nonetheless telling.

   Contrary to the assertion of amicus LDEF (Br. 8 n.4), that
appraisal did not rest upon the Court's recognition that the Fifth
Amendment's requirement of indictment by a grand jury does not apply
to the states.  In the discussion quoted in the text the Court
addressed the defendant's equal protection claim.  In the language
that followed to which LDEF points, the Court also observed that
because the Fifth Amendment Grand Jury Clause is not applicable to the
states under the Fourteenth Amendment, "federal concepts of a 'grand
jury'" (405 U.S. at 633) established thereunder are inapplicable in
state cases.  But the Court's comment that the Grand Jury Clause --
and any requirements it holds as to the constitution of the grand jury
(see pages 35-37, infra) -- had no application should not obscure its
separate discussion of the inapplicability of equal protection
principles.  As the Court reiterated in Rose v. Mitchell, 443 U.S. at
557 n.7, states that do employ grand juries are not relieved from the
operation of the Fourteenth Amendment Equal Protection Clause.  See
also Peters v. Kiff, 407 U.S. 493, 496, 501 (1972) (opinion of
Marshall, J.).

   /10/ As explained in our Brief in Opposition in Cronn, the Eleventh
Circuit, which has permitted nonmembers of a class allegedly suffering
discrimination in grand jury foreperson selection to raise an equal
protection claim, see United States v. Cross, 708 F.2d 631, 633-634
(1983), petition for cert. pending, No. 83-1037;  United States v.
Perez-Hernandez, 672 F.2d 1380 (1982), has failed to observe the
distinction for purposes of standing between the due process and equal
protection challenges to an indictment established in Peters v. Kiff.
(A copy of our Brief in Opposition in Cronn has been provided to
petitioner.)

   /11/ Contrary to the assertion of the LDEF (Br. 14 n.7), this case
is in no respect analogous to Barrows v. Jackson, 346 U.S. 249 (1953),
in which the Court permitted a white person being sued for damages for
breach of a racial restrictive covenant to assert that enforcement of
the covenant would deny equal protection of the laws to nonwhite
would-be purchasers.  The Court emphasized that its ruling was limited
to the "unique situation" and "peculiar circumstances" of the
particular case and depended upon the practical inability of persons
whose rights were asserted to protect them directly in litigation (346
U.S. at 257).  See United States v. Cronn, 717 F.2d at 169.

   /12/ The question presented here therefore differs in an important
respect from that reserved in Rose v. Mitchell, 443 U.S. at 551-552
n.4.  In the Tennessee system considered there, the foreperson was
selected separately from the other 12 members of the grand jury (id.
at 548 n.2).  In holding that discrimination affecting only the
selection of the foreperson impairs the validity of an indictment, the
court of appeals had observed that "the foreman or forewoman is a full
member of the grand jury" and had reasoned that "a grand jury which is
only twelve-thirteenths constitutional cannot render constitutionally
valid indictments." Mitchell v. Rose, 570 F.2d 129, 136 (6th Cir.
1978).  The court of appeals distinguished (id. at 136) its prior
decision in Hale v. Henderson, 485 F.2d 266,269-270 (6th Cir. 1973),
cert. denied, 415 U.S. 930 (1974), in which it had rejected a
defendant's challenge to selection of the foreperson from among the
members of a properly constituted grand jury.  See also 485 F.2d at
272 (Lambros, J., concurring).  This case, of course, resembles Hale
v. Henderson rather than Mitchell v. Rose.  Accordingly, we need not
and do not argue here that a de minimis exception should be recognized
to the rule of Peters v. Kiff that governs challenges to the
constitution of the grand jury itself.

   /13/ Because the selection process for a grand jury, unlike that
for a petit jury, does not allow for the exercise of peremptory
challenges, compare Fed. R. Crim. P. 6(b) (providing that the grand
jury array may be challenged for improper selection procedure and that
individuals may be challenged as not legally qualified) with Fed. R.
Crim. P. 24(b) (peremptory challenges to petit jurors), the selection
of grand jurors by the statutorily prescribed mechanism is
particularly effective in ensuring that the representational due
process values underlying the decision in Peters v. Kiff are
vindicated.  Compare Swain v. Alabama, 380 U.S. 202, 223-224, 226
(1965);  see id. at 228-231 (Goldberg, J., dissenting).

   /14/ Nor is it claimed that discrimination in the selection of a
federal grand jury foreperson from among grand jury members violates
18 U.S.C. 243.  Accordingly, challenges to foreperson selection lie
outside the exceptional class of cases recognized by Justices, White,
Brennan and Powell in Peters (407 U.S. at 505-506).

   /15/ We do not here press the argument rejected by the Court in
Rose.  We note that this case arises on direct appeal from the
defendant's conviction, rather than upon collateral review, and that
the prosecution was constitutionally required to proceed by indictment
in this federal case.  Compare Rose v. Mitchell, 443 U.S. at 575 & n.2
(Stewart, J., concurring).

   /16/ Describing federal grand jury practice prior to the adoption
of the Federal Rules of Criminal Procedure, Professor Orfield stated
(The Federal Grand Jury, 22 F.R.D. 343, 377 (1959)):  "Even though
there is no statute so providing the trial court may appoint a
foreman."

   /17/ Petitioner does not assert, and the record does not reflect,
the use of this Handbook or the Model Grand Jury Charge in the Eastern
District of North Carolina, and it is clear that the use of the
Handbook is not uniform throughout the federal court system.  See
Brief for the United States at 6, Dentico v. United States, No.
83-681, etc.  (A copy of the cited brief has been provided to
petitioner.) And the opinion of the Third Circuit in Aimone explicitly
indicates, 715 F.2d at 827, that the duties of forepersons in the
District of New Jersey are more limited than those outline in United
States v. Cross.

   /18/ If, contrary to the rule of Frisbie, a foreperson's signature
(and thus his concurrence) were essential to the validity of an
indictment, it might be argued that the foreperson was vested with a
veto power over indictments and accordingly is possessed of sufficient
independent authority over the action of the grand jury to require
separate scrutiny of alleged discrimination in foreperson selection at
the behest of a criminal defendant seeking dismissal of his
indictment.  We note that, in Rose v. Mitchell, Justice White, joined
by Justice Stevens, conditioned his conclusion that discrimination in
foreperson selection is a sufficient basis for a defendant's challenge
to an indictment upon "the vital importance of the foreman in the
functioning of grand juries in Tennessee" (443 U.S. at 589 (White, J.,
dissenting)).  That characterization rested, inter alia, upon the
foreperson's veto power over indictments and the fact that the
foreperson was selected separately from the other members of the grand
jury and yet had the full authority of a grand jury member (id. at
589-590 n.1 (quoting Mitchell v. Rose, 570 F.2d at 136)).  The federal
grand jury foreperson has neither of these attributes.  See also pages
22-23 note 12, supra.

   /19/ In Aimone the Third Circuit concluded:  "(w)e are not
persuaded that the duties performed by a federal foreperson confer the
power to control the decision-making process of the grand jury" (715
F.2d at 827).

   /20/ As noted above (pages 14-15;  see also page 6 note 4, and
pages 7-8 note 6), these arguments were not advanced by petitioner in
the courts below.

   /21/ Rotation of the duties of foreperson among the members of the
grand jury would arguably be the only way to meet a fair cross section
requirement.

   /22/ Nothing in the legislative history of the Jury Selection and
Service Act supports its application to foreperson selection.  LDEF
suggests (Br. 16-18) that because Congress disapproved the "key man"
system for jury selection, it must also have disapproved the
discretionary method of foreperson selection that prevails under the
Federal Rules of Criminal Procedure.  But Congress plainly did not
supersede Rule 6(c) in the Jury Selection and Service Act, as it did
key man jury selection systems.  And the analogy drawn between the two
systems by LDEF is insubstantial.  The district court's discretion to
designate a foreperson from among the members of a properly
constituted grand jury has no impact upon the constitution of the
grand jury as a whole and thus is not remotely comparable to the key
man system of selecting jurors.

   /23/ Glasser v. United States, 315 U.S. 60 (1942), Thiel v.
Southern Pacific Co., 328 U.S. 217 (1946), and Ballard v. United
States, 329 U.S. 187 (1946).

   /24/ In United States v. Hasting, No. 81-1463 (May 23, 1983), slip
op. 6, the Court recognized that one of the purposes that may justify
use of supervisory power is "to implement a remedy for violation of
recognized rights." But, as we have explained, discrimination limited
to the selection of a federal grand jury foreperson from among its
members does not engage any right of a criminal defendant such as
petitioner to an impartial or broad-based tribunal, or to be free of
stigmatizing influences in the jury room.  And, as we explain below
(pages 46-50), granting a remedy to a criminal defendant is not
necessary to protect the rights of black or female grand jurors to a
fair opportunity to be considered for the post of grand jury
foreperson.

   /25/ In Rose v. Mitchell, 443 U.S. at 591, Justice White, joined by
Justice Stevens (the only members of the Court having occasion to
address the point) observed that because of the small numbers
involved, the "rule of exclusion" applied in jury selection cases "may
not be well suited" to claims of discrimination limited to foreperson
selection.  See also Washington v. Davis, 426 U.S. 229, 253 (1976)
(Stevens, J., concurring) (observing that the elements of a prima
facie case of discrimination must be defined in a manner appropriate
to the particular context in which discrimination is alleged to have
occurred).  A substantial argument could be made that, unlike
underrepresentation of any significant population group among the
members of grand juries or petit juries, underrepresentation of such a
group among grand jury forepersons is not so unlikely to be
explainable on grounds other than intentional discrimiantion that it
should be sufficient to raise a prima facie case of discrimination.
Compare Castaneda v. Partida, 430 U.S. at 493;  Washington v. Davis,
426 U.S. at 241.  Thus, it is our view that petitioner and the
Eleventh Circuit have improperly applied the method of proof employed
in jury selection cases in the foreperson selection context.  If,
contrary to our main submission, a criminal defendant is entitled to
seek dismissal of his indictment on the basis of alleged
discrimination in the selection of a foreperson, he should at least be
required to exclude "the most common nondiscriminatory reasons" for
underrepresentation before the burden is placed upon the court to
rebut an inference of discrimination.  See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981).  In view of the
substantial nonracial criteria that are generally employed to select
forepersons (see pages 45-46, infra) a defendant's prima facie case
should include evidence that blacks and women were on the indicting
grand jury and available for appointment, and that their
qualifications for selection as foreperson were at least equal to
those of the person appointed.  In this case the record is silent as
to the membership of the grand jury that indicted petitioner (see page
5, supra).  (We note that consistent application of the rule of
exclusion to the foreperson selection context would require, at a
minimum, that the proportion of black or female forepersons be
measured against the membership of the grand juries from which they
were drawn, rather than the population as a whole as was done here.
See United States v. Cabrera-Sarmiento, 533 F. Supp. 799, 805-806
(S.D. Fla. 1982).  Petitioner did not present evidence necessary to
make the proper comparison (see pages 5-6, supra).)

   /26/ This procedure was employed in United States v.
Cabrera-Sarmiento, 533 F. Supp. at 805 (number of judges testifying
not specified);  United States v. Breland, 522 F. Supp. 468, 471-474
(N.D. Ga. 1981) (nine judges testifying);  United States v. Manbeck,
514 F. Supp 141, 150 (D.S.C. 1981) (two judges testifying);  United
States v. Northside Realty Associates, 510 F. Supp. 668, 683-684 (N.D.
Ga. 1981) (eight judges testifying;  United States v. Holman, 510 F.
Supp. 1175, 1180-1181 (N.D. Fla. 1981), aff'd, 680 F.2d 1340 (11th
Cir. 1982) (two judges testifying);  United States v. Jenison, 485 F.
Supp. 655, 665-666 (S.D. Fla. 1979) (eight judges testifying).  See
also Perez-Hernandez, 672 F.2d at 1383 (decided, pursuant to
stipulation, on the basis of the record in Jenison).

   /27/ This procedure was employed in all of the cases listed in the
previous footnote except for Manbeck.

   Application of the rule of exclusion to the grand jury foreperson
selection context in the Eleventh Circuit appears to be logically
flawed.  Unlike juror selection, which is typically a centralized
process carried out in a uniform manner in any judicial district or
jurisdiction, the selection of a foreperson in the federal system is,
as petitioner observes (Pet. Br. 22), an informal process carried out
by district judges acting separately.  It is not at all clear why all
of the appointments made in a given district over some period of time
should be lumped together for purposes of statistical examination.
Absent a showing of joint action, the "track record" of any given
federal judge in not probative of the intent of any other judge.  See
United States v. Homan, 680 F.2d at 1357 n.13 (where defendant was
indicted by the first grand jury impanelled by a newly appointed
district judge, "a serious question remains as to whether statistics
dealing with selections by other judges during the past ten years
indeed prove anything at all with regard to the instant appointment").
 The record in this case does not reveal the identity of the judges
whose appointments were the basis for the defendant's statistical
showing or the identity of the impanelling judge in petitioner's case.

   /28/ We note that the rule of exclusion borrowed from the jury
selection cases is a blunt instrument in the foreperson selection
context.  A defendant has suffered no invasion of his rights unless he
has been indicted by a grand jury the foreperson of which was selected
in a discriminatory manner.  See Castaneda v. Partida, 430 U.S. at 506
(Burger, C.J., dissenting);  compare id. at 496-497 nn. 16-17;  cf.
Rose v. Mitchell, 443 U.S. at 572 n.12.  Under petitioner's view of
the law, any defendant indicted by a grand jury with a white male
foreperson in a district where blacks or women were historically
underrepresented in that post is able to cast the burden on the court
of accounting for its selection of forepersons.  Yet even under a
wholly random system of foreperson selection a substantial proportion
of forepersons would be white and male in most districts.  By
contrast, on a multi-member grand jury or petit jury, the absence of
blacks or women is a more telling index of possible discrimination.
Accordingly, the rule of exclusion operates in a highly indiscriminate
manner in the foreperson selection context, substantially magnifying
the burden placed upon the courts.

   /29/ The United States Attorney's Office for the Southern District
of Florida advises us that the "theoretical" possibility adverted to
in Cabrera-Sarmiento has become a stock in trade of criminal defense
practice there.  See also Miami Herald, Dec. 23, 1981, at 1B (more
than 100 defendants joined in an omnibus motion to dismiss their
indictments in Cabrera-Sarmiento).  According to the United States
Attorney, even where defense counsel stipulate that reliance upon
judicial testimony given in prior cases is permissable, newly
appointed judges are required to be examined on their selection
practices, and judges previously examined are periodically required to
testify as to their most recent foreperson appointments.

   /30/ See Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir.
1982) (en banc), cert. granted, No. 82-1554 (June 6, 1983);  cf.
Fayerweather v. Ritch, 195 U.S. 276 (1904).

   /31/ United States v. Holman, 680 F.2d at 1357, aff'g 510 F. Supp.
at 1180;  United States v. Perez-Hernandez, 672 F.2d at 1387-1388;
United States v. Cabrera-Sarmiento, 533 F. Supp. at 805;  United
States v. Breland, 522 F. Supp. at 479-480;  United States v. Manbeck,
514 F. Supp. at 150;  United States v. Jenison, 485 F. Supp. at 665.

   /32/ We note, as well, that the decision to select a foreperson is
necessarily based partly on highly subjective impressions of the
members of the grand jury.  Just as appellate courts are loathe to
look behind a trier of fact's assessment of witness credibility, the
courts should be wary of engaging in retrospective evaluation of any
particular foreperson selection.

   /33/ In the unlikely event that any judicial officer should persist
in a course of discrimination in the face of the orders of the
Judicial Council, it may be appropriate to file a complaint with the
clerk of the court of appeals pursuant to the disciplinary procedures
established under 28 U.S.C. (Supp. V) 372(c).

   /34/ Mandamus may also be available to correct any act of unlawful
exclusion that is challenged contemporaneously by one so excluded.

   /35/ Substantial confirmation for that belief is provided by a
survey of United States Attorneys conducted by the Department of
Justice prior to our acquiescence in the petition for a writ of
certiorari in this case.  The responses to our inquiries disclose a
striking pattern in those districts where there may have been a
historical pattern of underrepresentation of women or minorities among
foreperson.  (That such underrepresentation existed in some districts
does not, of course, demonstrate that it was attributable to
purposeful discrimination.) In district after district where
underrepresentation was believed to have existed in the past, the
district courts have recently taken special care to select forepersons
in a fashion representative of the community.  Moreover, to ensure
that no reversal of this trend occurs, the Department of Justice will,
irrespective of the ultimate disposition of this case, continue the
efforts it has undertaken through the United States Attorneys to call
the attention of the district courts to the importance of
nondiscriminatory foreperson selection procedures.