United States Court of Appeals,
Eleventh Circuit.
No. 94-6459.
UNITED STATES of America, Plaintiff-Appellee,
v.
Terry Wayne GRISHAM, aka Terry Wayne Girsham, Defendant-
Appellant.
Sept. 12, 1995.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CR-93-N-170-S), Edwin L. Nelson, Judge.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON,
Senior Circuit Judge.
JOHNSON, Senior Circuit Judge:
Terry Wayne Grisham appeals his conviction for bank robbery.
The issue presented in this appeal is whether the Northern District
of Alabama's ("the Northern District") practice of selecting juries
from the district at large violates the Fifth and Sixth Amendments
of the Constitution merely because of the disparity between the
percentage of African-Americans on the qualified jury wheels
created from voter registration lists of the district at large and
the percentage of African-Americans in the population of the
Southern Division of the Northern District ("the Southern
Division").1 Because we conclude that it does not, we affirm
1
Grisham also contends that a prosecution witness' in-court
identification of him violated the Due Process Clause of the
Fifth Amendment. Assuming for the sake of argument that the
in-court identification violated due process, Grisham's
contention is not a sufficient ground for reversal of his
conviction. The admission of unreliable identifications is
subject to harmless error analysis. Marsden v. Moore, 847 F.2d
1536, 1546 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct.
534, 102 L.Ed.2d 566 (1988). After reviewing the overwhelming
evidence against Grisham, we are left with no doubt that the jury
Grisham's conviction.
I. STATEMENT OF THE CASE
In July 1993, Terry Wayne Grisham was indicted on one count of
bank robbery, in violation of 18 U.S.C.A. § 2113(a) (West 1984 &
Supp.1995). The case was initially set for trial on October 5,
1993. Following voir dire, Grisham moved to strike the jury panel
"because of the inadequate representation of persons of the
minority race." The district court continued the trial to permit
defense counsel to file a formal challenge to the jury selection
procedures of the Northern District and consolidated the hearing on
Grisham's motion with a similar challenge raised by defendants in
an unrelated criminal action.2
Grisham subsequently filed written motions challenging the
methods and procedures for selecting jurors for grand and petit
juries in the Northern District. Grisham contended that the
selection procedures disproportionately excluded African-Americans
from jury service, in violation of (1) the Jury Selection and
Service Act of 1968 ("the Act"), 28 U.S.C.A. § 1861, et seq. (West
1994), which provides that "all litigants shall have the right to
grand and petit juries selected at random from a fair cross section
of the community in the district or division wherein the court
convenes," (2) his Sixth Amendment right to a jury pool composed of
a fair cross-section of the community, and (3) the Fifth Amendment
rights of jurors to equal protection under the law. After
would have convicted him even absent the purportedly unreliable
in-court identification.
2
The caption for the other case is United States v. Stutson,
et al., CR-93-N-1052-S.
conducting an evidentiary hearing, the district court ruled that
3
Grisham's statutory challenge was untimely, and rejected his
constitutional claims on the merits. At the conclusion of a jury
trial, Grisham was convicted on one count of bank robbery. The
district court sentenced him to 225 months' imprisonment.
II. ANALYSIS
Challenges to the jury selection process may be based on the
fair cross-section requirement of the Sixth Amendment, Duren v.
Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the
equal protection component of the Fifth Amendment, Cunningham v.
Zant, 928 F.2d 1006 (11th Cir.1991), or a substantial failure to
comply with the provisions of the Act. United States v. Maskeny,
609 F.2d 183, 191 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct.
3010, 65 L.Ed.2d 1112 (1980). Because Grisham concedes that the
district court correctly concluded that his statutory claim was
untimely, only the constitutional issues are before us on appeal.
We review de novo constitutional challenges to jury selection
processes. See, e.g., United States v. Rodriguez, 776 F.2d 1509,
1511 (11th Cir.1985) (conducting de novo review); United States v.
Tuttle, 729 F.2d 1325, 1327 (11th Cir.1984) (same), cert. denied,
469 U.S. 1192, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985).
A. The Northern District's Jury Selection Process
At issue in this action are two separate jury selection plans
3
The Act provides that, in criminal cases, challenges to the
jury selection process under the Act must be brought "before the
voir dire examination begins, or within seven days after the
defendant discovered or could have discovered, by the exercise of
diligence, the grounds therefor, whichever is earlier." 28
U.S.C.A. § 1867(a) (West 1994).
adopted by the Northern District pursuant to provisions of the Act.
The grand jury that indicted Grisham was selected pursuant to a
plan adopted by the district court in March 1989. The petit jury
that tried Grisham was selected pursuant to a plan which went into
effect in October 1993. The methods and procedures of these two
plans ("the plans") are substantially identical.
The Northern District is divided into seven statutory
divisions. 28 U.S.C.A. § 81(a) (West 1994). Pursuant to the
plans, which were adopted by all of the judges of the United States
District Court for the Northern District and approved by a panel of
the judicial council of the United States Court of Appeals for the
Eleventh Circuit, the district court selects juries on a
district-wide basis, as opposed to a division-wide basis.
As required by the plans, the clerk of the district court has
established a master jury wheel ("MJW"), drawn by random selection
from lists of registered voters from each county in the district.
Periodically, as provided in the plans and in 28 U.S.C.A. §
1864(a), the clerk randomly selects names from the MJW and mails a
juror questionnaire to each person selected. Returned
questionnaires are examined to determine which persons are
qualified for jury service and not exempt or due to be excused.
Those persons are placed on the qualified jury wheel ("QJW"). The
criteria for determining juror qualifications, exemptions, and
excuses are set forth in the plans. Only those questionnaires
which are returned are utilized; the clerk does not follow up or
contact persons who fail to return questionnaires. Nor does the
clerk follow up on questionnaires that are returned by the post
office as undeliverable.
At the time of Grisham's grand jury proceeding, the clerk sent
24,000 questionnaires to persons randomly selected from the MJW.
Of those 24,000 questionnaires, 5,479 were returned as
undeliverable, 3,135 elicited no responses, and more than 5,000
persons were properly excused from service. Eventually, the QJW
was composed of 9,188 persons, of which 15.9% were African-
American.
At the time of Grisham's trial, the clerk placed 37,000 names
on the MJW. Questionnaires were mailed to 8,076 persons randomly
selected from the MJW. Of those 8,076 questionnaires, 1,123 were
returned as undeliverable, 1,175 were not returned, and
approximately 1,400 persons were excused. The QJW comprised 4,359
persons, of which 13.59% were African-American.
The percentage of the population of the Northern District
eligible for jury service that is African-American is 18.31%. In
contrast, 28.98% of the population of the Southern Division
eligible for jury service is African-American.
B. The Sixth Amendment
The Sixth Amendment guarantees a criminal defendant the right
to be indicted and tried by juries drawn from a fair cross-section
of the community. Duren, 439 U.S. at 359, 99 S.Ct. at 666; Taylor
v. Louisiana, 419 U.S. 522, 526-31, 95 S.Ct. 692, 695-98, 42
L.Ed.2d 690 (1975); Cunningham, 928 F.2d at 1013. As the Supreme
Court explained in Holland v. Illinois, the fair cross-section
requirement is "not explicit in the text" of the Sixth Amendment,
"but is derived from the traditional understanding of how an
"impartial jury' is assembled. That traditional understanding
includes a representative venire, so that the jury will be ...
"drawn from a fair cross section of the community.' " 493 U.S.
474, 480, 110 S.Ct. 803, 807, 107 L.Ed.2d 905 (1990) (quoting
Taylor, 419 U.S. at 527, 95 S.Ct. at 696) (emphasis in original).
The representativeness requirement serves the goal of impartiality
because it prevents the government from drawing up "jury lists in
such manner as to produce a pool of prospective jurors
disproportionately ill disposed towards one or all classes of
defendants." Id.
To establish a prima facie case that a jury selection process
does not produce a fair cross-section of the community, a defendant
must show (1) that the group alleged to be excluded is a
distinctive group in the community, (2) that representation of the
group in venires is not fair and reasonable in relation to the
number of such persons in the community, and (3) that the
underrepresentation is due to systemic exclusion of the group in
the jury-selection process. Duren, 493 U.S. at 364, 110 S.Ct. at
680. The government concedes that Grisham has satisfied the first
element of his prima facie case, but maintains that he fails both
the second and third elements. Because we conclude that Grisham
fails the second element, we limit our discussion to that issue.
See United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984)
(failure on any element of the prima facie case ends a challenge
under the Sixth Amendment).
To examine the second element, we must compare the difference
between the percentage of the distinctive group among the
population eligible for jury service and the percentage of the
distinctive group on the QJW. Pepe, 747 F.2d at 649; United
States v. Esle, 743 F.2d 1465, 1479-80 n. 3 (11th Cir.1984)
(Tjoflat, J., concurring). If the absolute disparity between these
two percentages is 10 percent or less, the second element is not
satisfied. Rodriguez, 776 F.2d at 1511; Tuttle, 729 F.2d at
1327.4
Here, if the relevant community to be compared with the QJW is
the Northern District, then the absolute disparity in the context
of both Grisham's grand and petit juries is substantially less than
10 percent. The percentage of African-Americans among the
population of the Northern District eligible for jury service was
18.31%, whereas the percentage of African-Americans on the grand
jury QJW was 15.9% and on the petit jury QJW was 13.59%.
Grisham contends, however, that the relevant community to be
compared with the QJWs is not the Northern District, but the
Southern Division. If that is correct, he may satisfy the second
element because the disparity between the 28.98% African-American
population of the Southern Division eligible for jury service and
the 15.9% and 13.59% African-American composition of the QJW for
5
Grisham's grand and petit juries is greater than 10 percent.
4
To the extent that Grisham is requesting this panel to
overrule the 10 percent absolute disparity requirement, we are
without power to do so. See United States v. Machado, 804 F.2d
1537, 1543 (11th Cir.1986) (only the Supreme Court or the
Eleventh Circuit sitting en banc can overrule the decision of a
prior panel). See also, Maskeny, 609 F.2d at 190 (declining to
examine methods other than absolute disparity).
5
The government contends that even if the population of the
Southern Division is used as the relevant community, the 10
percent threshold is not met. To reach this conclusion, the
Grisham advances two bases for his position: (1) that the
community contemplated by the Sixth Amendment's fair cross-section
requirement is smaller than the district at large, and (2) that
Congress has defined the relevant community as the Southern
Division.
1. The meaning of "community"
In this Circuit's prior cases, we have not had occasion to
define the meaning of "community" in the context of challenges to
federal jury selection systems. The prior cases simply called for
a comparison between the racial composition of the community from
which the district court drew the jury wheel and the racial
composition of the jury wheel. See, e.g., Pepe, 747 F.2d at 649;
Gibson v. Zant, 705 F.2d 1543, 1547 (11th Cir.1983). We must,
therefore, decide for the first time what geographical parameters
the fair cross-section requirement, which is implicit in the Sixth
Amendment, imposes on the selection of jurors.
The geographical parameters of the source of the jury is not
a subject about which the Sixth Amendment is silent. The Sixth
Amendment provides that criminal defendants are entitled to trial
"by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been
previously ascertained by law." (emphasis added). This provision
government would have us compare the percentage of African-
Americans in the eligible population of the Southern Division
(28.98%) with the percentage of persons from the Southern
Division on the QJW who are African-American (19.96%). However,
the fact that 19.96% of persons from the Southern Division on the
QJW are African-American is irrelevant. The fact remains that
African-Americans comprise only 15.9% and 13.59% of the jury
pools from which Grisham's grand and petit juries were drawn.
of the Sixth Amendment is known as the vicinage provision. At
common law, a criminal defendant was entitled to a jury drawn from
the locality of the crime, usually an English county. See Drew L.
Kershen, Vicinage, 29 Okla.L.Rev. 801, 813-16 (1976). In
considering amendments to the Constitution, Congress debated
whether to provide a guarantee to federal criminal defendants
regarding vicinage. Those in favor of a vicinage provision sought
narrow territorial limits akin to those existing at common law.
Id. at 816-44. The text of the Sixth Amendment represents a
compromise: a constraint on the source of the jury was
constitutionalized, but the size of the vicinage was left to
Congressional determination. See Williams v. Florida, 399 U.S. 78,
96, 90 S.Ct. 1893, 1903-04, 26 L.Ed.2d 446 (1970). As this Court
has previously observed, "[i]t was apparently understood that the
districts mentioned in the amendment would be defined by Congress
in the Judiciary Act, which was pending while the amendments were
being debated." United States v. Louwsma, 970 F.2d 797, 801 (11th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1383, 122 L.Ed.2d
759 (1993). Thus, neither the language of the vicinage provision
nor its legislative history suggests that the geographical area
from which the jury is summoned must be smaller than the judicial
district created by Congress.
Furthermore, binding precedent interpreting the vicinage
provision makes it clear that the Sixth Amendment provides Congress
and the courts flexibility in selecting the source of the jury
pool. For example, the United States Supreme Court has held that
the Sixth Amendment does not require that the jury drawn be from
the whole district. Ruthenberg v. United States, 245 U.S. 480,
482, 38 S.Ct. 168, 169, 62 L.Ed. 414 (1918) (the plain language of
the Sixth Amendment is satisfied by a jury drawn from a
geographical subdivision of a judicial district). Additionally, as
interpreted by the former Fifth Circuit, the vicinage provision
does not require that any jurors reside in the immediate vicinity
of the occurrence of the crime. See United States v. James, 528
F.2d 999, 1021 (5th Cir.) (the Sixth Amendment does not entitle a
criminal defendant to trial in the division where the crime was
committed even though the division in which the trial is conducted
selects its juries only from division-based voting lists), cert.
denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). See
also United States v. Grayson, 416 F.2d 1073, 1076 (5th Cir.1969)
(no right to be indicted in the division where the offense
occurred), cert. denied, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d
753 (1970). Thus, on the basis of the text of the vicinage
provision, its legislative history, and the caselaw interpreting
it, we conclude that district-based jury selection comports with
the vicinage provision of the Sixth Amendment.
Grisham's contention to the contrary is somewhat
extraordinary. He suggests that the fair cross-section requirement
mandates that we graft onto the Sixth Amendment a more restrictive
definition of community than the definition that is expressly
provided in the Sixth Amendment itself. We disagree.
As noted above, the fair cross-section requirement is a means
of ensuring that the Sixth Amendment's guarantee of an impartial
jury is met. Holland, 493 U.S. at 480, 110 S.Ct. at 807. A
representative jury pool serves this goal because a diversity of
viewpoints among the jury pool hedges against the possibility of a
jury acting on prejudices shared by a homogenous group. Id.
Understanding "community" for the purposes of a federal criminal
defendant's fair cross-section claim to be the same as the
parameters set forth in the Sixth Amendment's vicinage provision is
consistent with the goal of impartiality. The QJWs in the Northern
District include the full range of racial, social, and economic
diversity in the region. So long as the lines of the geographical
area from which the jury wheel is compiled are not drawn for the
purpose of racial gerrymandering, see United States v. Cannady, 54
F.3d 544 (9th Cir.1995) (use of division-based jury wheels is
proper absent evidence of gerrymandering), selecting juries at
random from a predetermined geographical area provides a
sufficiently diverse jury pool to ensure impartiality.
Impartiality may, in fact, be better served by juries drawn
from areas not in close proximity to the crime. One of James
Madison's principal arguments against incorporating a common law
vicinage requirement was that the sympathy of local citizens with
the perpetrator of an offense against the federal government would
render successful prosecution impossible. See Kershen supra at 841
(discussing Madison's view). We need look no further than local
prosecutions during the civil rights movement to witness Madison's
acuity. Moreover, local prejudice may be aimed at the defendant
instead of the government, as, for example, where the locality
seeks retribution for an injury suffered by a popular victim.
Accordingly, we hold that the Sixth Amendment does not entitle a
federal criminal defendant to a jury summoned from a fair
cross-section of the community immediately surrounding the place of
the crime, but merely to a jury drawn from a fair cross-section of
some previously defined geographical area within the boundaries of
the judicial district in which the offense occurred.
2. Congressional designation of divisions
Grisham next contends that the creation of judicial divisions
in the Northern District signals Congress' intention that juries be
selected on the basis of those divisions.6 As we noted above, the
Sixth Amendment gives Congress the power to determine the area of
the vicinage district under the Sixth Amendment. Thus, Congress
could create a system whereby statutes refer to "districts" for
certain purposes, such as jurisdiction and venue, and, at the same
time, mark off distinct geographical areas for the purpose of
creating Sixth Amendment vicinage districts.
Nonetheless, we reject Grisham's contention that Congress'
creation of judicial divisions was an exercise of this Sixth
Amendment power. First, it is significant that Congress did not
express such an intention in the most obvious manner available to
it, namely, by using the term "district." Second, neither the
statute creating the statutory divisions of the Northern District
nor the Act expressly dictates a division-based vicinage
6
We note, however, that if Grisham is correct, the plans
would violate the Sixth Amendment not because they failed to
represent a fair cross-section of the community, but rather
because they failed to draw the jury from within the Sixth
Amendment "district" as defined by Congress. Thus, Grisham's
statistics regarding racial composition are irrelevant to this
issue.
requirement.7 The Act does not stipulate which political
subdivision within a district the federal courts should select,
committing that decision to the courts' discretion. 28 U.S.C.A. §
1861; 28 U.S.C.A. § 1863(b)(2) ( [A] jury selection plan shall
"specify whether the names of prospective jurors shall be selected
from the voter registrations lists or the lists of actual voters of
the political subdivisions within the district or division.")
(emphasis added). Third, Grisham has failed to point to any
legislative history which supports his contention that Congress
intended to require division-based jury selection. Thus, we
conclude that, in creating divisions within the Northern District,
Congress did not exercise its power to define the geographical
limits from which a federal jury may be drawn. See Clement v.
United States, 149 F. 305, 309-10 (8th Cir.1906) (ruling that
divisions are not districts under the Sixth Amendment), cert.
denied, 206 U.S. 562, 27 S.Ct. 795, 51 L.Ed. 1189 (1907).
Accordingly, the district court did not err in concluding
that, in this case, the relevant statistical community was the
Northern District rather than the Southern Division and, thus,
properly rejected Grisham's Sixth Amendment claim.
C. Equal Protection
To establish an equal protection violation in the jury
selection context, a defendant must show "(1) that he or she is a
member of a group capable of being singled out for discriminatory
7
It is noteworthy that Congress has in the past enacted
statutes creating judicial divisions that contained explicit
division-based vicinage requirements. See Kershen supra at 61-
65.
treatment, (2) that members of this group were substantially
underrepresented on the venire, and (3) that the venire was
selected under a practice providing an opportunity for
discrimination." Cunningham, 928 F.2d at 1013. Although the prima
facie case for an equal protection claim resembles the elements of
a fair cross-section claim, the purpose of an equal protection
claim is to determine whether the disparity in the jury venire is
the result of a discriminatory purpose. Duren, 439 U.S. at 368 n.
26, 99 S.Ct. at 670 n. 26. Thus, whereas the inquiry in a fair
cross-section claim focuses on the representativeness of the jury
venire, the focus of an equal protection claim is whether members
of a discrete group have been intentionally denied the opportunity
to serve on a jury. If the defendant makes his prima facie case,
the burden shifts to the government to dispel the inference of
intentional discrimination. Castaneda v. Partida, 430 U.S. 482,
497-98, 97 S.Ct. 1272, 1281-82, 51 L.Ed.2d 498 (1977); see also
Gibson, 705 F.2d at 1546. If the government provides a legitimate
explanation, the ultimate burden of proving discriminatory intent
rests on the defendant challenging the jury selection process.
Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 1721, 90
L.Ed.2d 69 (1986).
Grisham contends that the district-based selection process
excludes African-Americans residing in the Southern Division from
jury service as evidenced by the disparity between the QJWs and the
population of the Southern Division.8 As Grisham relies solely on
8
Grisham also contends that the clerk's failure to pursue
unreturned and undeliverable jury questionnaires has the effect
of excluding African-Americans residing outside of the Southern
the evidence of disparity, the narrow issue before us is whether
this statistical evidence was sufficient by itself to permit an
inference of discriminatory purpose behind the plans.
The district court resolved this issue on the ground that
cross-community statistical comparisons are irrelevant for equal
protection analysis.9 However, we need not decide whether a
cross-community statistical disparity by itself may ever serve as
sufficient evidence to infer discrimination, for the statistical
disparity presented in this case is not sufficient to carry
Grisham's ultimate burden.10 The Northern District has adopted the
Southern Division as the preferred venue for criminal trials for
purposes of administrative convenience and providing criminal
Division from jury service. Grisham, however, has not produced
any evidence to indicate that African-Americans are
disproportionately affected by the clerk's failure to follow up
on questionnaires.
9
The district court stated:
[Intent to discriminate] cannot be inferred merely from
defendants showing a disparity between the percentage
of black jurors on the qualified wheel and the
percentage of black persons eligible for jury service
in a hypothetical community. There almost always will
be a disparity between the percentage of black jurors
on the wheel and the percentage of jury-eligible black
persons in the population of any "community" which is
not the community from which the wheel was drawn. That
is not, and cannot be, the test of an equal protection
question. Since the defendants are not entitled to
trial in a self-defined community, which includes only
the division in which the crime occurred, they are not
entitled to compare their venire with that community
for equal protection purposes.
Grisham, 841 F.Supp. at 1146.
10
The disparity between the African-American population of
the Southern Division eligible for jury service and the African-
American composition of the QJW for Grisham's grand and petit
juries is approximately 13% and 15.5%, respectively.
defendants with a speedy trial. If the Northern District selected
juries only from the area used to determine the venue of trial, the
consequence would be that residents of the Northern District
outside the Southern Division would be precluded from serving on
federal criminal juries. Thus, district-based selection in this
case ensures that all residents of the Northern District have a
realistic chance of serving as jurors. In light of this
governmental interest, the Northern District's decision to adopt
district-based jury selection is eminently reasonable. The
resulting 13% and 15.5% absolute "cross-community" disparities are
simply not sufficient to support an inference that the Northern
District has acted for an illicit purpose. Accordingly, we
conclude that the district court properly rejected Grisham's equal
protection challenge to the plans.
III. CONCLUSION
For the reasons stated above, we AFFIRM.11
11
We recognize that Judge Clemon follows a modified version
of the Northern District's jury selection plan in civil cases
arising in two divisions. Hardin v. City of Gadsden, 837 F.Supp.
1113 (N.D.Ala.1993). Judge Clemon adopted the modifications on
the basis of his conclusion that the jury selection plans at
issue in this case violated the Act, a question which is not
presented by this case. Moreover, the district court in Hardin
relied on findings concerning the disproportionate poverty of
African-Americans in Northern Alabama and their lack of access to
transportation. These facts have not been presented to us in
this appeal. Thus, our conclusion today should not be viewed as
resolving, one way or the other, the issues that were before
Judge Clemon in Hardin.