UNITED STATES OF AMERICA, PETITIONER V. WILLIAM HOWARD CROSS, SR. No. 83-1037 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-18a) is reported at 708 F.2d 631. The pertinent opinion of the district court (App. B, infra, 19a-34a) is reported at 516 F.Supp. 700. JURISDICTION The judgment of the court of appeals (App. C, infra, 35a) was entered on June 30, 1983. An order denying the government's timely petition for rehearing (App. D, infra, 36a-37a) was entered on September 26, 1983. On November 16, 1983, Justice Powell extended the time in which to file a petition for a writ of certiorari until December 25, 1983. 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 upon an indictment returned by the grand jury. STATEMENT Following denial of his pretrial motion challenging selection procedures for grand jurors, petit jurors, and grand jury forepersons, and his motion seeking recusal of the sitting judges of the district court, and an ensuing jury trial in the United States District Court for the Middle District of Georgia, respondent was convicted on all four counts of an indictment charging drug-related offenses. The offenses that respondent was determined to have committed were: conspiracy to import methaqualone (quaaludes), a controlled substance, conspiracy to possess methaqualone with intent to distribute, and the respective completed substantive offenses, in violation of 21 U.S.C. 841(a)(1), 846, 952 and 963. Respondent was sentenced to five years' imprisonment on each count, the sentences to run consecutively. In addition, the court imposed a 10-year special parole term. 1. The evidence developed at trial, the sufficiency of which respondent did not contest in the court of appeals, established that respondent, along with four co-conspirators, introduced into the United States 28 cartons, containing 843,000 methaqualone tablets, that had been obtained in Colombia, South America. /1/ Together with the other defendants, respondent acquired an airplane to carry out this mission, and modified the plane by installing needed special radio equipment and fuel tanks. /2/ Two of the conspirators departed from the Cuthbert, Georgia, airport in the airplane on October 16, 1980. /3/ Unbeknown to respondent and the other defendants, the plane was under surveillance by federal and state law enforcement officers. The plane was tracked by United States Customs Service agents the next day when it reentered United States airspace. /4/ The plane was pursued by Customs Service aircraft, back to Cuthbert, Georgia, where it landed. The controlled substances that form the basis for this prosecution, along with maps and other items indicating that the plane had been flown to Colombia, were found in a search of the plane. /5/ 2. In November 1980, a federal grand jury sitting in the Middle District of Georgia indicted respondent and three of his co-conspirators upon charges arising from the foregoing events. A superseding indictment, upon which respondent ultimately was convicted, was returned against all of the defendants on January 11, 1981. Prior to trial, respondent moved to dismiss the indictment on two procedural grounds. Respondent claimed, first, that the juror selection procedures employed in the Middle District of Georgia did not assure random selection of grand jurors and petit jurors from a fair cross section of the community. Respondent alleged that the procedures employed violated the Jury Selection and Service Act of 1968, 28 U.S.C. 1861 et seq. App., infra, 2a. In addition, respondent, a white male, asserted that blacks and women had been discriminated against in the selection of grand jury forepersons in the Middle District of Georgia (R. 263, 371). In support of the latter contention, respondent presented the affidavit of Roger Friedman, a statistician who had examined the records of the district court pertaining to grand juries empaneled subsequent to July 31, 1973. According to the Friedman affidavit, 15 grand juries had been impanelled in the eight-year period in question. In each instance the foreperson was a white male. Deputy forepersons during this period were white males in nine instances, white females in two cases, black males in three cases, and a black female in one instance. R. 364-366. Respondent claimed that underrepresentation of blacks and women in the position of foreperson reflected a "constitutional violation of (his) Fifth Amendment due process rights" (R. 263). /6/ In addition, respondent filed a motion seeking recusal of each of the senior and active judges of the district court who had selected one or more grand jury forepersons during the period 1973-1981, on the ground that those judges "will, by necessity, be witnesses at any hearing on this matter" (R. 337). At a hearing on pretrial motions on June 5, 1981, the district court, Elliott, J., explored the nature of respondent's claim of discriminatory foreperson selection and the basis for the related recusal motion. Respondent's counsel asserted that the statistics contained in the Friedman affidavit established a prima facie case of intentional discrimination in foreperson selection (3 Tr. 11, 15-16), sufficient to shift to the government the burden of proving, through the testimony of the judges who appointed forepersons during the eight-year period surveyed, the absence of intentional discrimination (3 Tr. 11-12, 15-17). The district court suggested practical and logical difficulties with this argument in colloquy with respondent's counsel (3 Tr. 11-12): THE COURT: * * * Now, the Indictment is not returned by but one Grand Jury. * * * There cannot be but one Foreperson. There can't be but one. Alright, you have white men, you have white women, you have black men, you have black women. You can't have, if you can find me a person who is a composite of all of those qualities, I will be happy to appoint that person as a Foreman of the next Grand Jury that convenes in the Middle District of Georgia. But, now when we come in and the Foreperson is a white man, you are going to complain. He is not a woman and he is not black. Then, if we come in where you have a white woman, you are going to complain, well, she is not black or she is not a man. How can you possibly satisfy your complaint there? (RESPONDENT'S COUNSEL): What we are saying, Your Honor, is something like fifty-two percent of the forepersons in this District should be women. (THE COURT): What difference does it make to your client who the Foreperson was of a Grand Jury in 1972 that indicted somebody in the Columbus Division for operating a liquor still? Your client is interested only in this Indictment. The district court also queried counsel as to respondent's standing to press a claim of discrimination against blacks and women (3 Tr. 11, 12). Respondent answered that his standing to complain of discrimination was established "because fifty-two percent of the Forepersons in the past eight years have not been women" (3 Tr. 12). At the June 5 hearing, the government did not contest the statistics cited in the Friedman affidavit, stating instead the government's position that underrepresentation of blacks and women among grand jury forepersons was in no event a basis for dismissing the indictment, and that there accordingly was no need to adduce the testimony of the district judges who had appointed forepersons in the district (3 Tr. 13, 17). Based upon that position, the government suggested that if respondent's affirmative case rested solely upon the statistics in the Friedman affidavit, no evidentiary hearing would be necessary (3 Tr. 13). Turning to the recusal motion, the court inquired as to the questions that respondent proposed to put to the district judges as witnesses on the question of discriminatory foreperson selection (3 Tr. 14-17). Respondent explained that he proposed to ask each of the various judges whether he had "discriminated consciously" in the selection of forepersons (3 Tr. 15), and whether he had considered the race, sex, job, community position, affluence, and friends of prospective forepersons (3 Tr. 17). 3. The district court denied the motion to dismiss based upon alleged discrimination in foreperson selection (App., infra, 19a-34a). Pointing to the extremely limited administrative duties assigned to the foreperson by Fed. R. Crim. P. 6(c), the district court reasoned that forepersons do not have such extensive authority or influence over the deliberations of the grand jury as a whole that an indictment returned by a properly constituted grand jury should be vulnerable to constitutional attack because of failure to appoint blacks or women to that position (App., infra, 21a-23a). Forepersons of federal grand juries, the court emphasized, unlike those in some state systems, are chosen from among the members of the grand jury and hold office only for the term of a single grand jury (id. at 25a-26a). In addition, the court noted, unlike the selection of grand jurors, which is regulated by the Jury Selection and Service Act, the selection of the grand jury foreperson is entrusted by law to the discretion of the district court (id. at 22a-23a). The district court thus held that neither respondent's Fifth Amendment equal protection claim, nor any Sixth Amendment fair cross section claim had merit in these circumstances (id. at 27a-28a). /7/ As an alternative basis for denying respondent's motion, the district court held that, as a white male, respondent lacked standing to advance an equal protection claim (App., infra, 26a-27a, 28a). In addition, the court denied respondent's motion for recusal of all sitting judges in the district, reasoning that a litigant is not entitled to probe the subjective mental processes of a judicial officer in connection with a decision entrusted to judicial discretion, such as the appointment of the grand jury foreperson (id. at 29a-34a). Both for that reason, and because of the court's ruling on the foreperson discrimination issue, the court observed, there was no likelihood of judicial testimony in this case such as might occasion recusal (id. at 34a). A motion for reconsideration of the district court's rulings on the foreperson issue was denied (see 3 Tr. 20). /8/ After conducting an evidentiary hearing (see 3 Tr. 19-98, 134-175), the district court also rejected respondent's separate challenges to the selection procedures used to constitute grand and petit juries in the Middle District of Georgia (R. 483-486). The case then proceeded to trial, and respondent was convicted upon the jury verdict and sentenced (see page 2, supra). 4. Respondent appealed from the judgment of conviction, challenging only the district court's rejection of his foreperson discrimination claim and denial of his recusal motion (see App., infra, 2a n.3). The court of appeals reversed the denial of respondent's motions to dismiss the indictment based on foreperson discrimination and for recusal, remanding both matters for further proceedings. Without distinguishing between the due process and equal protection theories that might have been advanced in support of a Fifth Amendment challenge to alleged discrimination in foreperson selection, the court of appeals held that respondent had standing to pursue his claim (App., infra, 3a-6a). /9/ Although aware of the contrary decision of the Fourth Circuit in United States v. Hobby, 702 F.2d 466 (1983), cert. granted, No. 82-2140 (Dec. 12, 1983), the court reaffirmed its prior decisions in United States v. Perez-Hernandez, 672 F.2d 1380 (1982), and United States v. Holman, 680 F.2d 1340 (1982), holding that discrimination in foreperson selection forms a legally sufficient basis for reversal of a conviction and dismissal of the underlying indictment (App., infra, 6a-15a). /10/ In support of its decision, the court of appeals stated its view that the duties of federal grand jury forepersons are not wholly ministerial. These duties, the court noted, may include serving as a conduit for communications with the United States Attorney or the supervising district judge, some influence over the grand jury's schedule, and consultation with the prosecutor concerning issuance of subpoenas. Id. at 10a-11a. The court of appeals also suggested that the testimony of district judges in other cases, indicating that they sought forepersons with leadership ability and management skills, reflected the significance of the role of foreperson (id. at 11a-12a), and that the mere designation of a particular individual as foreperson may endow that person with enhanced status in the eyes of other grand jurors, affording the foreperson disproportionate influence in grand jury deliberations (id. at 12a). The court thought it unacceptable to distinguish between the constitutional significance of federal and state grand jury forepersons (id. at 13a-14a), or between claims challenging the composition of the grand jury as a whole and those directed only at the selection of the foreperson (id. at 15a), asserting that any other rule would "undermin(e) the grand jury's constitutional significance" and impair its ability "to effectively fulfill its role as a check on prosecutorial abuse" (ibid.). The court of appeals accordingly remanded for a determination whether foreperson selection in the Middle District of Georgia reflected discrimination against blacks or women. The court also strongly suggested that the testimony of the judges of the district court who had appointed forepersons as to their selection criteria and procedures and any discriminatory intentions, was properly to be received upon remand, and, indeed, that it was the only relevant (non-statistical) evidence (App., infra, 16a-17a). Rather than rule upon the recusal issue itself, however, the court of appeals remanded the recusal issue to the district court for reconsideration (id. at 17a). REASONS FOR GRANTING THE PETITION In Rose v. Mitchell, 443 U.S. 545, 551-552 n.4 (1979), this Court declined to express any view on whether "discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire." The court of appeals' affirmative answer to the question thus reserved, as it applies to federal grand juries, is contrary to decisions of the Third, Fourth and Ninth Circuits. See United States v. Aimone, 715 F.2d 822, 826-827 (3d Cir. 1983), petitions for cert. pending sub nom. United States v. Dentico, No. 83-681 and United States v. Musto, No. 83-690; United States v. Hobby, supra; United States v. Coletta, 682 F.2d 820, 824 (9th Cir. 1982), cert. denied, No. 82-798 (Feb. 22, 1983). The court of appeals in the present case recognized that its decision was contrary to Hobby (App., infra, 10a). Because of the Eleventh Circuit's adherence, in this case, to its position contrary to that of the Third, Fourth and Ninth Circuits, we did not oppose the petition filed by the defendant in Hobby, to the extent it presented the foreperson discrimination issue. For the reasons stated in our brief in Hobby at pages 11-17, we submit that the decision below is erroneous and that the question presented warrants this Court's review. /11/ Now that the Court has undertaken to decide this question and to resolve the conflict by granting certiorari in Hobby, it would be appropriate to hold this petition pending disposition of Hobby. /12/ CONCLUSION The Court should dispose of this petition in light of its decision in Hobby v. United States, No. 82-2140. Respectfully submitted. REX E. LEE Solicitor General DECEMBER 1983 /1/ Along with respondent, the indictment charged Vernon Seifkes, William H. Cross, Jr. (respondent's son), James C. Clark, and Carl London in each of the four counts. Seifkes and the younger Cross waived the right to a jury trial and were found guilty based upon stipulated facts (3 Tr. 186-205). Clark entered a guilty plea (see 4 Tr. 11). London is a fugitive (App., infra, 2a n.1). /2/ 4 Tr. 53-56, 131-136; 6 Tr. 38-41, 56-61, 121-124. /3/ 4 Tr. 150-154. /4/ 5 Tr. 37, 49-51. /5/ 5 Tr. 94, 123; 7 Tr. 10-18. /6/ Other than the quoted statement, there appears to be little in the record to indicate the precise nature of respondent's claim, and especially whether he relied upon a due process as opposed to an equal protection theory. It appears from the record that no memorandum of law accompanied respondent's motion. A memorandum accompanying respondent's motion for reconsideration of the denial of his motion (see page 7, infra) does not make this distinction either. However, in his motion to reconsider, in asserting his standing to complain of discrimination against blacks and women in foreperson selection, respondent relied upon a Fifth Amendment due process case (Peters v. Kiff, 407 U.S. 493 (1972)) and a Sixth Amendment fair cross section case (Duren v. Missouri, 439 U.S. 357 (1979)) (see R. 412). /7/ The district court noted that respondent did not rely upon the Sixth Amendment in alleging discrimination in foreperson selection (App., infra, 28a). /8/ In the memorandum supporting this motion, respondent claimed apparently for the first time, that it was necessary to hold an evidentiary hearing to determine whether, in fact, grand jury forepersons in the Middle District of Georgia exercise significant authority or influence over the actions of the grand jury. Compare page 6, supra. /9/ The court relied upon Peters v. Kiff, supra, a due process case, as authority for its decision (App., infra, 5a-6a). In the court of appeals, as in the district court (see page 4 note 6, supra), respondent had failed to make clear the precise nature of his claim. /10/ In both Perez-Hernandez and Holman, the court of appeals had concluded that the government had demonstrated the absence of discrimination. There accordingly was no opportunity for the government to seek further review of the rulings that foreperson discrimination was a sufficient basis for dismissal of an indictment. /11/ A copy of our brief at the petition stage in Hobby has been provided to respondent. /12/ Although the court of appeals' opinion in this case addresses a preliminary issue of standing that was not addressed by the Fourth Circuit in Hobby, we believe that there is no need to grant plenary review here. Our challenge to respondent's standing extends only to any equal protection theory advanced by a white male defendant. See Brief for the United States at 11 n. 4, Hobby v. United States, No. 82-2140. Thus the standing argument is merely a subsidiary aspect of our argument on the merits of the Fifth Amendment claim advanced here, which serves to clarify the basis for the respondent's challenge to the indictment. Because the present respondent, like the petitioner in Hobby, has never made clear the precise nature of his claim, and may rely, at least in part, on a pure due process theory, we believe it appropriate simply to hold this case. APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.