specially concurring:
I concur, but write separately to express my opinion with regard to one issue. In Rose v. Mitchell the Supreme Court assumed without deciding that “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.” 443 U.S. at 551 n. 4, 99 S.Ct. at 2997. This assumption was later accepted as law by the former Fifth Circuit: “If convictions must be set aside because of taint of the grand jury, we see no reason to differentiate the result because discrimination affected only the foreman.” Guice v. Fortenberry, 661 F.2d at 499. This position has never been fully explained or examined, and for reasons set forth below I believe it is erroneously applied to this case.
In Rose v. Mitchell the Supreme Court addressed the selection of grand jury foremen in Tennessee state courts. The majority opinion discussed the long standing precedent of requiring the dismissal of a criminal indictment if discrimination has occurred in the selection of the grand jury. This body of law, however, was not developed to correct actual harm or prejudice to the indicted defendant. The fact that a defendant received a completely fair and impartial petit jury trial does not abate his right to indictment by a properly constituted grand jury.1 Rose v. Mitchell, 443 U.S. at 551, 99 S.Ct. at 2997; Alexander v. Louisiana, 405 U.S. at 628, 92 S.Ct. at 1224. Moreover, it does not matter if the defendant is not a member of the class excluded from grand jury service. Peters v. Kiff, 407 U.S. at 498, at 92 S.Ct. 2166. Instead, the reason a defendant is allowed to contest discrimination in the selection of a grand jury is to protect the appearance of justice and the integrity of our judicial system. “Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process.” Rose v. Mitchell, 443 U.S. at 555-56, 99 S.Ct. at 2999-3000. I zealously agree with this reasoning. Without the respect of society, our judicial system cannot function properly. Thus, the social costs associated with eliminating discrimination in the selection of a grand jury have been well justified. See Rose v. Mitchell, 443 U.S. at 557-58, 99 S.Ct. at 3000-01.
I believe, however, that this policy is necessarily limited in application. For example, if discrimination is found in the hiring of courtroom deputies, clerks, or the admin*1389istrative staff, then the integrity of the judicial system is still marred by inequality and hypocrisy, but certainly the appropriate remedy would not be the reversal of all criminal convictions before that court. Therefore, before a defendant may challenge his indictment because of discrimination in the judicial system, I believe that the discrimination must be related to a significant position or part in the administration of justice. Thus, discrimination in the selection of grand and petit juries would allow subsequently convicted defendants to appeal their convictions. I do not believe, however, that the position of federal grand jury foreman is significant or even remotely necessary to the proper administration of justice. Federal grand jury foremen perform menial, insignificant tasks. Their position does not give them the ability to independently affect the judicial system or the rights of a defendant; they have no more power than any other member of the grand jury panel. Appellant, of course, argues that the mere title gives a foreman the ability to unfairly persuade and influence the other grand jury members, but I cannot believe that federal grand jury members are innocent and naive lambs and the foreman their shepherd. Accordingly, I believe that discrimination in the selection of federal grand jury foremen, if proven, does not justify the quashing of subsequent indictments. I 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.
My position is not inconsistent with Rose v. Mitchell. A grand jury foreman in the Tennessee state court system is chosen by a judge from the entire population for a two year term of office. He or she is then added to the randomly selected grand jury panel as the thirteenth member. Thus, discrimination in the selection of Tennessee grand jury foremen infiltrates discrimination into the selection of the entire grand jury panel. This is not the case in the federal system below where the grand jury panel was randomly and properly selected and only then a foreman was chosen from that group. Moreover, a Tennessee grand jury foreman is expected to assist the district attorney in investigating criminal activity and may order the issuance of subpoenas. See Rose v. Mitchell, 443 U.S. at 548 n. 2, 99 S.Ct. at 2996. The absence of the foreman’s signature results in a fatally defective indictment. Bird v. State, 103 Tenn. 343, 52 S.W. 1076 (1899). In contrast, the only similarity between a Tennessee and a federal grand jury foreman is the name of the position. Rule 6(c) of the Federal Rules of Criminal Procedure provides that a foreman administers oaths, signs indictments, and keeps various clerical records. The absence of the foreman’s signature does not affect the validity of the indictment. Frisbie v. United States, 157 U.S. 160, 15 S.Ct. 586, 39 L.Ed. 657 (1895). Thus, this is a case of apples and oranges. The position of grand jury foreman in the Tennessee system is an independently significant role in the administration of justice in that state, while the same position in the federal system is not. Therefore, the assumption made by the Court in Rose v. Mitchell was correct for the facts of that case and the same assumption may have been correct for a challenge of the Louisiana system in Guice v. Fortenberry. I believe, however, that the same assumption is not applicable to the federal system. I would affirm the trial court below for this reason, but I am otherwise in complete agreement with the decision in this appeal.
. Indeed, the only reason the appellant in this case did not plead guilty at trial was to preserve this issue for appeal. Record of United States v. Mario Perez-Hernandez, Vol. 2 at 1-10.