In Re United States

United States Court of Appeals
For the First Circuit

No. 05-2358

IN RE: UNITED STATES OF AMERICA,

Petitioner.

ON PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
____________________

[Hon. Nancy Gertner, U.S. District Judge]

Before

Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Timothy Q. Feeley, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney, Lori J. Holik,
Assistant United States Attorney and Theodore B. Heinrich,
Assistant United States Attorney were on petition for a writ of
mandamus, motion to stay district court order, and request for
leave to file a supplemental brief.
Patricia Garin with whom Max D. Stern, Kenneth M. Resnik,
Stern, Shapiro, Wiessberg & Garin, LLP, David P. Hoose, Katz,
Sasson, Hoose & Turnbill, John H. Cuhna, Jr., Cuhna & Holcomb,
P.C., Randolph Gioia, Elizabeth Billowitz, Law Office of Randy
Gioia, Sarah Jennings Hunt, William C. Brennan, Jr., Brennan,
Trainor, Billman & Bennett, LLP, George F. Gormley and George F.
Gormley, P.C. were on opposition to the government's petition for
a writ of mandamus and opposition to the government's motion to
stay district court order for respondents Branden Morris, Jonathan
Hart, Darryl Green and Edward Washington.
Charles W. Rankin, James L. Sultan and Rankin & Sultan on
brief for Nancy Gertner, United States District Judge.
Jackie Gardina, Vermont Law School, on brief for Chief Judge
William G. Young, Amicus Curiae.
 Michael Avery, Suffolk Law School, on brief for National
Lawyers Guild, Massachusetts Association of Criminal Defense
Lawyers and Juvenile Justice Center of Suffolk University Law
School, Amici Curiae.
Julia M. Wade, David J. Apfel and Goodwin Procter LLP on brief
for The Boston Bar Association, The Committee for Public Counsel
Services, and The National Association of Criminal Defense Lawyers,
Amici Curiae.
William W. Fick, Martin F. Murphy, Foley Hoag LLP, Nadine
Cohen, Barbara J. Dougan, Lawyers' Committee for Civil Rights,
Dennis Courtland Hayes, General Counsel, Victor L. Goode, Assistant
General Counsel, NAACP, Charles J. Ogletree and Charles Hamilton
Houston Institute for Race & Justice on brief for Lawyers'
Committee for Civil Rights Under Law Of The Boston Bar Association
and Boston Branch of the NAACP, Greater Boston Civil Rights
Coalition, Community Change, Inc., Jewish Alliance for Law and
Social Action, Women's Bar Association, Massachusetts Black Lawyers
Association, Charles Hamilton Houston Institute for Race and
Justice, and Massachusetts Black Legislative Caucus, Amici Curiae.

October 7, 2005
 BOUDIN, Chief Judge. In September 2003, the defendants

were charged in federal district court, by a superceding

indictment, with racketeering, 18 U.S.C. § 1962(c) (2000),

racketeering conspiracy, id. § 1962(d), conspiracy to murder, id.

§ 1959(a)(5), and various assaults and firearms offenses. Two

defendants were further charged with murder in aid of racketeering.

Id. § 1959(a)(1). Shortly thereafter, the government advised that

it would seek the death penalty against the latter two defendants

if they were convicted of a specific murder charged in one of the

counts.

In November 2004, one of the defendants moved to dismiss

the superceding indictment, or in the alternative for an order to

supplement the names contained in the master jury wheel currently

in use in the district court. This defendant claimed that the jury

selection process under-represented African Americans. At least

some of the defendants are African American and all joined in this

challenge.

The district judge held evidentiary hearings in January

2005 and received an expert report in April 2005. On September 2,

2005, with two of the defendants scheduled for trial on September

19, 2005, the district judge issued a 101-page decision and order.

The judge rejected the defendants' constitutional attack but found

that the current arrangements in this district for jury selection

were unlawful under the statute. United States v. Green, --- F.

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Supp. 2d ---, 2005 WL 2109114, at *22, *32 (D. Mass. Sept. 2,

2005).

In Massachusetts, as in other district courts, the jury

selection process is governed by a "plan" adopted by the district

court pursuant to the Jury Selection and Service Act ("JSSA" or

"the statute"), 28 U.S.C. §§ 1861 et seq. (2000). The JSSA

contains substantive requirements for such plans and specifies the

procedures for adopting the plans. Each such plan must be adopted

by a vote of the judges of the district court and then approved by

a special review panel comprised of the circuit council and a

designated judge of the district court in question. Id. § 1863(a).

The current Massachusetts plan was revised in 2000 and is publicly

available. Plan for Random Selection of Jurors (D. Mass.).

Under the Massachusetts plan, trials held in the Eastern

Division of Massachusetts--a set of adjacent counties in the

eastern part of the state--draw juries starting with a source list

of names of residents from these counties. Plan §§ 2, 5(c). A

random selection of names from the full source list is placed in a

master jury wheel; a large number of names is then periodically

drawn at random from the master wheel and sent jury summonses and

qualification questionnaires; and after the returned questionnaires

are vetted (e.g., to exclude disqualified persons), the remaining

names go into a "qualified jury wheel" from which the needed number

of jurors are randomly drawn and eventually dispatched to court

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when a jury or juries are to be selected. Plan §§ 8-10; see also

28 U.S.C. §§ 1863, 1864, 1866(a), (b).

In this case, the district judge determined from the

evidence that although African Americans comprised over 6 percent

of the Eastern Division population in the last several years, just

over 3 percent out of all those who returned questionnaires (and

identified their race) were African American. Green, 2005 WL

2109114, at *7. For the period 2001-2003 inclusive, the average

disparity was 3.66 percent. Id. at *18. In short, African

Americans appeared among the questionnaire answerers about half as

often as their presence in the population of the Eastern Division.

Out-of-date (or otherwise incorrect) addresses and a

lower response rate by African Americans than in the population as

a whole appeared to be the main reasons for the disparity. Green,

2005 WL 2109114, at *20-*21, *30-*31. Some letters are returned to

the jury administrator or clerk marked "undeliverable" (e.g., the

addressee moved). Id. at *20-*21. Others are not returned but no

questionnaire is filed by the addressee--a category that includes

some persons who never received a summons and questionnaire and

others who did but chose not to return the questionnaire. Id. at

*21. Although such misdeliveries and nonresponses occur in all

communities, the data suggest that they occurred proportionally

more often in areas that contained more poor or minority

inhabitants. Id. at *20-*21.

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 After an analysis of existing case law and statutory

provisions, the district judge concluded that no Sixth Amendment

violation had been proved, Green, 2005 WL 2109114, at *22, but that

the statute required supplementation of the names originally drawn

from the master wheel in order to remedy or ameliorate the racial

disparity, id. at *27-*28, *31-*32. The district judge directed

the federal jury administrator to draw an additional name from the

master wheel, but from the same zip code, for each name to whom a

questionnaire was sent that was returned "undeliverable"; for any

questionnaire that was not returned at all after two attempted

mailings to the same address, the same remedy was ordered. These

newly drawn names, to the extent their questionnaires were

returned, were then to be merged with original persons drawn who

had returned their questionnaires.1

1
The challenged paragraphs of the order provided that with
respect to the present case:

1. For all summonses returned to the Court
as "undeliverable," the same number of
new summonses should be mailed to
residents who live in the same zip code
area as the undeliverable summonses.
Replacement summonses will be selected
from a supplemental array, merged with
the existing array and randomized;

2. For all summonses for which there is no
response ("nonresponses") after a second
mailing, the same number of new summonses
should be mailed to residents who live in
the same zip code area as the
nonrespondents. Replacement summonses
will be selected from a supplemental

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 This procedure would draw proportionately more

supplemental names from zip codes where the original response rate

had been low--which the evidence showed would tend to have a larger

than average population of African Americans. Green, 2005 WL

2109114, at *35. The process would in turn tend to produce a

blended list of persons filing questionnaire answers containing a

greater proportion of African Americans than the original list.

The supplementation remedy adopted by the district judge thus

sought to increase the likelihood of African Americans (and other

groups similarly situated) appearing on the final jury in numbers

more closely aligned with their presence in the Eastern Division's

population.

After objecting to this remedy as inconsistent with the

statute and with the current plan, see 28 U.S.C. § 1867(e), the

government sought mandamus in this court to prevent the district

court's use of the supplemented list. We granted a stay of the

order and expedited our hearing on the mandamus petition, making

clear that the district court was free to delay the upcoming trial,

which it has now done. Issues of law are reviewed de novo, Porn v.

Nat'l Grange Mut. Ins. Co., 93 F.3d 31, 33 (1st Cir. 1996); some

deference may be accorded to a court's interpretation of its own

array, merged with the existing array and
randomized; . . .

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jury plan, but only to a "reasonable interpretation." Cf. Nehmer

v. Veterans' Admin., 284 F.3d 1158, 1160 (9th Cir. 2002).

In this court, the defendants contest our authority to

intervene. They argue that there is no final judgment in this case

and that it does not fit within the few categories of criminal

cases for which Congress has allowed interlocutory appeals. See 18

U.S.C. § 3731 (permitting, e.g., interlocutory appeal of

suppression orders). The short answer is that well settled

precedent treats mandamus as an alternative means of securing

interlocutory relief in the limited class of extraordinary cases

where the requirements for mandamus have been met.

The most familiar track, so-called "supervisory

mandamus," is traditionally available where judicial power has been

exceeded, there is a threat of irreparable harm, and the underlying

order is clearly erroneous. United States v. Horn, 29 F.3d 754,

769 (1st Cir. 1994). Even absent such conditions, "advisory

mandamus" has sometimes been granted in this circuit, United States

v. Green, 407 F.3d 434, 439-40 (1st Cir. 2005), petition for cert.

filed (U.S. Aug. 12, 2005) (No. 05-360), and elsewhere, e.g., In re

von Bulow, 828 F.2d 94, 97-100 (2d Cir. 1987), to settle critical

questions of law that affect multiple cases and warrant immediate

resolution.2

2
The Supreme Court cautioned in Will v. United States, 389
U.S. 90 (1967), against the over-ready use of mandamus in criminal
cases, id. at 96-98; but its own precedents--both before and after

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 Our case is a classic "exceptional" instance justifying

interlocutory intervention. The central issue is one of judicial

authority--namely, whether the district judge's action contravenes

or unlawfully supplements the jury plan adopted by the district

court as a whole and approved by the review panel. See

Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964). As for

irreparable injury, Horn, 29 F.3d at 769, the government has no

ready way to appeal if there is an acquittal and no standing to

appeal if there is a conviction. And, as we shall see, the

district judge's order clearly departs from the existing jury plan.

Further, the district judge's decision effectively

indicts the existing plan as applied to grand jury and petit jury

actions in a vast array of criminal cases, past and future. The

decision has already prompted motions in other pending cases. In

statements that are part of the record, the district judge's order

has been endorsed by the chief judge of the district court,

suggesting that he (and likely some other judges) will follow the

same course. Advisory, as well as supervisory, mandamus is thus

wholly appropriate.3

Will--make clear that mandamus is available in exceptional
circumstances in both civil and criminal cases. Schlagenhauf v.
Holder, 379 U.S. 104, 110 (1964); United States v. United States
Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 301 n.3 (1972).
3
The JSSA provides a short pre-trial window within which a
party must move to challenge non-compliance with the provisions of
the statute and further provides, with some qualifications, that
this is an "exclusive" remedy. 28 U.S.C. §§ 1867(a)-(c), (e). The

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 Turning to the merits, we begin by asking whether the

district judge's order comports with the existing plan or whether,

if not, the order can be justified in this case by claims that the

plan is at odds with the statute. Concluding that the answer to

both questions is no, our decision then explains why the order must

be enjoined even if a legitimately amended plan designed to improve

on the existing one might be permissible.

Central to this case is the relationship between the plan

and the statute. The statute provides a purpose and framework for

jury selection plans and some of the mechanical detail for

collecting jurors. A plan, which the statute requires from each

district, provides additional detail and mechanics, and it must not

conflict with the statute, 28 U.S.C. § 1863(a), but may differ from

district court to district court (e.g., as to the source of names

for the master wheel and the number drawn, id. § 1863(b)(2)). Once

adopted, the plan is intended to provide a uniform procedure for

assembling jurors in that district court binding upon each district

judge. See id. § 1863; S. Rep. No. 90-891, at 34 (1967); H. Rep.

No. 90-1076 (1968), as reprinted in 1968 U.S.C.C.A.N. 1792, 1805.4

government did make its objection within this period and the
statute does not specify how or when such challenges may be
presented to an appellate court and it does not preclude mandamus.
4
Employing identical language, both the Senate and House
reports explain: "The specific and comprehensive nature of the
provisions of the act and the local plan will assure that there are
readily available standards against which the selection procedures
may be measured. Thus, procedural regularity is the measure of the

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 In this case, the plan pertinently provides that the

state's local resident lists constitute "a fair cross section of

the community"--the grouping prescribed by the statute for jury

selection--and that the names of the persons "to be considered for

service . . . shall be selected at random" from the lists. Plan §

5(c). It also provides that the selection of names from the source

list and then from the master wheel (which are two separate steps)

"must . . . insure that the mathematical odds of any single name

being picked are substantially equal." Id. § 7(a); see also, e.g.,

District of Maine Plan §§ IV, V.

Then, from the names so drawn (first from the source list

of residents and then from the master wheel), the clerk sends a

summons and qualification form, Plan § 9(b), (c). From the

returned forms and through other procedures, some names are removed

for disqualification, exemption or excuse. Id. § 10. Under the

statute, the names of persons so qualified constitute a "qualified

jury wheel" from which jurors are drawn at random as necessary for

grand juries and for arrays periodically summoned to court (e.g.,

for Monday, September 19, 2005) as potential petit jurors for

trials. 28 U.S.C. § 1863(b)(8).

validity of the selection system. It is an appropriate measure
since the bill sets up a largely mechanical process in which the
role of human discretion is minimized. The bill does not guarantee
that each venire or each jury will mirror the structure of the
community. It guarantees only that appropriate selection
procedures have been used."

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 The district judge's order departs from this regime by

providing that a new name chosen in the supplemental draw must come

from the same zip code as an original addressee whose questionnaire

was not returned. This violates the "equal odds" requirement of

the plan because the supplemental draw, constrained by the

preferences for those in certain zip codes, does not give equal

odds of selection to every name in the master wheel. Indeed, if

the equal odds requirement were met, the results of the

supplemental draw would tend to reflect the very same demographics

as the original one.

The district judge pointed to a different provision of

the plan, namely, the authority in section 11 for the court to

direct a further draw from the master wheel to create a

"supplemental array" to be added to the regular array summoned from

the qualified wheel. But the expressed purpose of section 11 is to

add a small list of potential jurors when additional names are

needed "because of excused or increased jury requirements,"--i.e.,

an inadequate number of qualified jurors in a regular array.

Nothing in this provision authorizes new jurors because of low

return rates in a particular zip code.

Further, what the plan prescribes for a shortage of

qualified jurors is supplementation by a further draw from the

master jury wheel, Plan § 11(d), and not a draw only from

identified zip codes within the master wheel. Regardless of the

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purpose of the supplemental array, the plan authorizes additions

only through a new "equal odds" draw from the entire master wheel.

Id. § 7(a). The successive new draws directed by the district

judge's order are not "equal odds" draws from the wheel but draws

only from individual zip codes.

Even without regard to the plan's equal odds language,

the order fails for a different reason. As just noted, the plan's

mechanism provides for additional draws from the master wheel only

in one specific situation--a draw of a supplemental array

occasioned by a shortage of qualified jurors in a regularly-

selected array. Plan § 11(d). A consequential enlargement of the

bases for a new draw amounts to a de facto amendment, even if

performed by an individual judge, and does not thereby escape the

statute's procedural requirements;5 the failure formally to amend

the plan by vote of the whole court is not a defense of the present

order but its vice.

Imagine that the district judge in question adopted this

new, zip-code-oriented approach and that another judge in the

district insisted on using the pre-existing practice. Quite apart

from the mechanical complications--normally an array is summoned

5
This is well settled in the closely related area of
rulemaking. See, e.g., United States v. Hoyts Cinemas Corp., 380
F.3d 558, 569 (1st Cir. 2004); Levesque v. Block, 723 F.2d 175,
178-85 (1st Cir. 1983); Hoctor v. U.S. Dept. of Agric., 82 F.3d
165, 170-72 (7th Cir. 1996); Mission Group Kan. v. Riley, 146 F.3d
775, 782-83 (10th Cir. 1998); United States v. Picciotto, 875 F.2d
345, 346-49 (D.C. Cir. 1989).

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for multiple trials before different judges--this would result in

some defendants getting juries selected under one regime and others

under a significantly different one. Compare note 4, above

(quoting legislative history). Alternatively, if all judges

informally followed the district judge's lead, it would merely

emphasize that a plan amendment had been improperly implemented

without the approvals required by the statute.

Certainly some details in jury administration are too

minor to require inclusion in a plan; for instance, the

Massachusetts plan does not specify the number of mailings to a

non-responding addressee and the government does not challenge the

district judge's contemplation of additional mailings to the same

address. But the plan does specify the use of equal odds draws

from the master wheel and the basis upon which a supplementary draw

can be ordered. The challenged portion of the district judge's

order is not a minor adjustment of administration on a matter left

unaddressed by the existing plan.

Possibly a major departure from the existing plan by one

judge might be justified if that plan were unconstitutional or in

conflict with the JSSA. Such a situation would create a conflict

between the substance of the plan and the procedure for altering

it. The government says that in such a case the conflict-resolving

solution would be to stay the trial and seek a formal amendment to

the plan by the district court as a whole. Cf., e.g., United

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States v. Gordon, 961 F.2d 426, 431 (3d Cir. 1992). But we will

assume, solely for the sake of argument, that a judge might depart

from the plan where compliance would cause a constitutional or

statutory violation. Here, the district judge did claim that the

statute compelled such a departure. It does not.

The district judge recognized that under our prior

governing precedent the plan, without any supplemental drawings,

complied with the Sixth Amendment. Green, 2005 WL 2109114, at *11-

*22; see United States v. Royal, 174 F.3d 1, 10-11 (1st Cir. 1999).

However, her decision invoked a statutory requirement that the

district court prescribe "some other source or sources of names in

addition to voter lists where necessary to foster the policy and

protect the rights" secured by the statute (which include both the

fair cross section requirement and equal access of citizens to

consideration for service on juries). Green, 2005 WL 2109114, at

*27-*30 (citing 28 U.S.C. § 1863(b)(2)). The district judge then

deemed the racial disparity in qualified names as triggering the

statutory duty to supplement. Id. at *30-*32.

This amounts to saying that the cross section language in

the statute is more demanding than the constitutional cross section

holdings. Yet the statutory language was drawn from the Supreme

Court's constitutional holdings, and this court, Royal, 174 F.3d at

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6, like others,6 has held the statute to impose essentially the

same obligation. Whether or not the record in this case is

factually better developed than that in Royal, the disparities are

of the same general magnitude, compare Royal, 174 F.3d at 10-11,

with Green, 2005 WL 2109114, at *18, and Royal binds this panel

quite as much as it binds the district judge. Irving v. United

States, 162 F.3d 154, 160 (1st Cir. 1998), cert. denied, 528 U.S.

812 (1999).

What is more, the "in addition" language in section

1863(b)(2) is directed to the specification of the source lists for

the master wheel. This is a function expressly to be performed by

the district court as a whole through the plan, see Plan § 5(b),

and it was performed when that court found that the Massachusetts

local resident lists satisfied the statute's requirements (a

finding expressly permitted by the statute as to the Massachusetts

lists, 28 U.S.C. § 1863(b)(2)). Nothing in the "in addition"

language has anything to do with how names are selected from the

master wheel.

In certain cases we have upheld convictions despite

deviations from a jury selection plan where the deviation did not

6
United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996);
United States v. Allen, 160 F.3d 1096, 1102 (6th Cir. 1998), cert.
denied, 526 U.S. 1044 (1999); United States v. Clifford, 640 F.2d
150, 154-55 (8th Cir. 1981); United States v. Miller, 771 F.2d
1219, 1227 (9th Cir. 1985); United States v. Shinault, 147 F.3d
1266, 1270-71 (10th Cir.), cert. denied, 525 U.S. 988 (1998).

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frustrate core concerns of the statute, specifically, random

selection of jurors and objective criteria for juror

disqualification. See United States v. Savides, 787 F.2d 751, 754-

55 (1st Cir. 1986); see also United States v. Tarnowski, 429 F.

Supp. 783, 790-91 (E.D. Mich. 1977), aff'd, 583 F.2d 903 (6th Cir.

1978), cert. denied, 440 U.S. 918 (1979). Our concern here,

however, is not with the rights of an individual party seeking

redress on appeal but with the use of mandamus to assure that the

district court complies with an existing plan in a series of trials

yet to be held.

As a final source of authority for the order, the

district judge's decision cites the long-recognized inherent

"supervisory" power of the court to manage its business. Green,

2005 WL 2109114, at *32-*33 (citing Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988)). The court's supervisory power

does not license it to ignore an otherwise valid existing jury plan

or to bypass the mechanism provided by statute to alter such plan.

"To allow otherwise 'would confer on the judiciary discretionary

power to disregard the considered limitations of the law it is

charged with enforcing.'" Bank of Nova Scotia, 487 U.S. at 254

(quoting United States v. Payner, 447 U.S. 727, 737 (1980)).

No one is entitled automatically to be tried by a jury of

persons comprised of his or her own race, religion or gender.

Taylor v. Louisiana, 419 U.S. 522, 538 (1975); Barber v. Ponte, 772

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F.2d 982, 997 (1st Cir. 1985) (en banc), cert. denied, 475 U.S.

1050 (1986). Yet there is assuredly cause for concern, as this

court said six years ago, Royal, 174 F.3d at 12, where African

American defendants have been indicted for major crimes, and the

proportion of blacks who return jury questionnaires is half the

percentage to be expected from their presence in the division of

the district concerned. The district court has always been free to

revise its jury plan in compliance with the statute.

Without developing its argument in detail, the government

has questioned whether the district court's remedy would comport

with the statute even if embodied in a properly adopted plan. But

what plan the district court as a whole might adopt is uncertain;

and we have expedited both oral argument and issuance of this

decision because of the need for a prompt resolution of the

mandamus petition. The statute provides for the district court as

a whole and then the review panel to consider plan changes in the

first instance. 28 U.S.C. § 1863(a).

The writ of mandamus is granted and the district court is

directed not to implement paragraphs 1 and 2 of its remedial order

entered on September 2, 2005. The writ shall issue forthwith

without prejudice to petitions for rehearing. No costs are to be

awarded.

It is so ordered.

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