Mary C. Geddes

Asst. Federal Defender

FEDERAL PUBLIC DEFENDER AGENCY

510 L Street, Suite 400

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. A93-112 CR (JWS)

) (JDR)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

UNITED STATES OF AMERICA, ) NO. A93-113 CR (JWS)

) (HB)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

MOTION FOR DISMISSAL OF INDICTMENT, FOR A STAY OF

PROCEEDINGS, AND FOR AN EVIDENTIARY HEARING

Mary C. Geddes

Asst. Federal Defender

FEDERAL PUBLIC DEFENDER AGENCY

510 L Street, Suite 400

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. A93-112 CR (JWS)

) (JDR)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

UNITED STATES OF AMERICA, ) NO. A93-113 CR (JWS)

) (HB)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

MOTION FOR DISMISSAL OF INDICTMENT, FOR A STAY OF

PROCEEDINGS AND FOR EVIDENTIARY HEARING

xxxxxx and xxxxxxxr, through counsel, hereby move this court for an order dismissing their indictments. They also move for an order in each of their cases staying proceedings in the above-styled matters, pending selection of a petit jury in conformance with the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et. seq. and the Sixth Amendment to the United States Constitution. Mr. xxxxxx and Mr. xxxxxx request that this matter be set on for an evidentiary hearing for the purpose of conclusively demonstrating a substantial failure to comply with the Act and with the Constitution.

This motion is submitted pursuant to 28 U.S.C. § 1867(a) and (d) and is based upon the Memorandum of Law and Affidavit of Counsel filed herewith.

DATED this ______ day of July, 2000.

Respectfully Submitted,

FEDERAL PUBLIC DEFENDER AGENCY

_________________________________

Mary C. Geddes

Assistant Federal Public Defender

Mary C. Geddes

Asst. Federal Defender

FEDERAL PUBLIC DEFENDER AGENCY

510 L Street, Suite 400

Anchorage, Alaska 99501

(907) 271-2277

Attorney for Defendant

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA, ) NO. A93-112 CR (JWS)

) (JDR)

Plaintiff, )

)

vs. )

)

xxxxxxxxxx, )

)

Defendant. )

____________________________________)

UNITED STATES OF AMERICA, ) NO. A93-113 CR (JWS)

) (HB)

Plaintiff, )

)

vs. )

)

xxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR

DISMISSAL OF INDICTMENT, FOR A STAY OF PROCEEDINGS,

AND FOR AN EVIDENTIARY HEARING

Introduction

The government has charged xxxxx, a native of the Indian subcontinent, with one count of False Statements in Connection with a Loan in violation of 18 U.S.C. § 1014 and with five counts of Bank Fraud. Mr. xxxxx was indicted by a grand jury on August 24, 1993. Trial is currently scheduled to begin March 21, 1994.

The government has charged xxxxxx, who lives in Dillingham, with tax evasion, making false statements, and structuring a currency transaction. Mr. xxxxxxxx was indicted by a grand jury on August 24, 1993. Trial is currently scheduled to begin March 14, 1994.

There are two categories of jury selection challenges made here under 28 U.S.C. §1867(a) and (d): one pertaining to petit jury selection and two pertaining to grand jury selection. ⁽¹⁾

First, the venire from which Mr. xxxxx and Mr. xxxxxx petit juries will be selected in March, 1994, substantially fails to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., (hereinafter "JSSA" or "Act") and is presently constituted in a manner that violates their respective rights under the Sixth Amendment to the United States Constitution. Messrs. xxxxxxx and xxxxx seek a stay of proceedings in each of their cases pending selection of a properly constituted petit jury.

Second, it is contended that the venire from which their grand jury was selected substantially failed to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., (hereinafter "JSSA") and was constituted in a manner that violated his rights under the Sixth Amendment to the United States Constitution. Accordingly, the defendants seek dismissal of their indictments.

At an evidentiary hearing authorized under 28 U.S.C. § 1867(d), Mr. xxxxx and Mr. Pleier can establish the following. The jury selection Plan for the District of Alaska substantially violates the Act because the venire for the Anchorage division does not reflect a fair cross-section of the community based on race and age. The jury selection Plan for the District of Alaska, and in particular for the Anchorage division as presently constituted, violates the Act because the division boundaries are not based on the type of political subdivisions approved by the Act.

The use of the actual voters list instead of the registered voters list substantially fails to comply with the Act because it frustrates the goal of the Act which states that all citizens within the district be afforded an opportunity to serve as jurors. The use of voter records from a presidential election throughout a four-year cycle and beyond substantially violates the Act because the Act indicates that source lists should be derived from records of the last general election.

This memorandum will review the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et. seq., as amended, The Plan of the United States District Court for the District of Alaska for the Random Selection of Grand and Petit Jurors (hereinafter, "The Plan"), and then demonstrate why the Plan fails to substantially comply with the Act.

The Statute

In 1968 Congress passed the Jury Selection And Service Act of 1968. Its purpose was threefold:

- To assure all litigants that potential jurors would be selected at random;

- To assure that potential jurors would constitute a representative cross-section of the community; and

- To assure that all qualified citizens would have an opportunity to be considered for jury service.

28 U.S.C. § 1861; H.Rep. No. 1076, 90th Cong., 2d.Sess., 1968 U.S. Code Cong. & Admin. News 1792. The JSSA expressly outlawed the exclusion of citizens from jury service on account of race, color, religion, sex, national origin, or economic status. 28 U.S.C. § 1862.

Section 1863 of Title 28 of the United States Code directs each district court to devise and place into operation a written plan for random selection of grand and petit juries. The plan must foster the three purposes of the Act. The plan may apply district-wide, or separate plans may be prepared for each separate division or any combination of divisions within the district. 28 U.S.C. § 1863(a).

Districts that are not divided into statutory divisions may be divided into divisions, provided that those divisions reflect existing counties or parishes. 28 U.S.C. § 1869(e). Districts not divided into counties or parishes may be divided using boundaries of "similar political subdivisions." The Act does not indicate how a district should be divided when there are no political subdivisions within the district that are equivalent to counties and parishes. The Act further provides that prospective jurors shall be selected from voter registration lists or lists of actual voters. The Act also requires the use of other sources where necessary to "foster the policy and protect the rights secured by sections 1861 and 1862." 28 U.S.C. § 1863 (b)(2).

Finally, to insure the randomness requirement and the fair cross-section requirement, the plan must provide that the master wheel be emptied at intervals not exceeding four years. 28 U.S.C. § 1863(b)(4).

The District of Alaska Plan

The District of Alaska has adopted a jury selection plan pursuant to the Act. The undersigned has created a flow chart to illustrate the petit jury selection process (Diagram 1).

The most notable features of the Plan are:

(1) it utilizes actual voter lists, not registered voter lists, and does not authorize the use of any supplemental sources;

(2) the district is divided into five divisions for the purposes of jury selection for trials set in those divisions ⁽²⁾;

(3) the divisions are based upon state election districts, which have aggregated in some manner unexplained in the plan;

(4) a master jury "wheel", created by random selection from the actual voter records, is maintained for each division;

(5) the five master jury wheels are filled and emptied every four years, between January 1 and July 1, on a cycle beginning with 1977;

(6) there are six "qualified" jury wheels: one for each division and one for grand jury; (7) there are no deadlines prescribed for the emptying and refilling of the qualified jury wheels;

(8) in each division, a "qualified" jury wheel for petit jury service is created in a two-part process: first, from a random selection of the actual voters in the master wheel; second, of those actual voters selected, those who respond to court questionnaires and who are then neither disqualified, exempt, excused, nor excluded from jury service;

(9) the "qualified" wheel for grand jury service is created by: first, a random selection of the actual voters in the master wheels for all divisions (the number of names drawn from each wheel is on a pro rata basis according to the number of actual voters in the division); second, of those actual voters selected, those who respond to court questionnaires and who are then neither disqualified, exempt, ⁽³⁾

excused, ⁽⁴⁾ nor excluded from jury service;

(10) jury panels are constituted from a random draw of the qualified wheel; following their selection, they are summoned for service;

(11) a panel member temporarily excused for a period due to a showing of undue hardship or unnecessary inconvenience may be summoned again at the end of that period ⁽⁵⁾

; and,

(12) actual voters who become panel members are called for service only in jury trials held within their division or for district-wide grand jury service.

DIAGRAM 1: PETIT JURY SELECTION

CONTINUE DIAGRAM 1

ARGUMENT

I. THE JURY SELECTION PLAN FOR THE DISTRICT OF ALASKA SUBSTANTIALLY VIOLATES THE ACT AND THE CONSTITUTION BECAUSE THE VENIRE FOR THE ANCHORAGE DIVISION PETIT JURIES DOES NOT REFLECT A FAIR CROSS-SECTION OF THE COMMUNITY.

The local Plan for jury selection violates the Sixth Amendment and the Jury Selection and Service Act of 1968 because it does not provide petit jury panels for the Anchorage Division which represent a fair cross-section of the community. 28 U.S.C. § 1861.

The test for determining whether a jury selection process meets constitutional requirements was articulated in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 596 (1979). In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which jury are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the under-representation is due to systematic exclusion of the group in the jury selection process.

If the first two elements of a prima facie violation are established, the third element, systematic exclusion, is presumed. See generally, Duren v. Missouri, 439 U.S. 357, 363-69 (1979); Berryhill v. Zant, 858 F.2d 633, 638 (11th Cir. 1988).

A. ALASKA NATIVES ARE NOT FAIRLY AND REASONABLY

REPRESENTED.

1. Alaska Natives Are a Distinctive Group in

Alaska.

Based on the defendants' investigation, "distinctive groups" substantially underrepresented in the Anchorage venire include Native Alaskans. ⁽⁶⁾ Native Americans have been recognized as constituting a cognizable group for purposes of Sixth Amendment analysis related to jury selection, United States v. Brady, 579 F.2d 1121, 1131 (9th Cir. 1978). See also, 28 U.S.C. § 1862.

2. The representation of Alaska Natives in the venires from which the jury is selected is not fair and reasonable in relation to the number of Alaska Natives in the community.

a. Alaska Natives are not fairly represented on Anchorage petit jury panels.

The defendants, through counsel, have conducted an analysis by race of all panel members who appeared and were assembled -- and were not excused -- for jury service in District Court for each jury trial, civil and criminal, scheduled in Anchorage during the calendar years 1992 and 1993. ⁽⁷⁾

The table ("Table 1") provided on the next two pages provides the panel-by-panel breakdown of the racial representation of those panels and analyzes them by four statistical measures: absolute disparity, absolute impact, comparative disparity and statistical significance. ⁽⁸⁾

The representation of jury-age Alaska Natives in the adjusted state population is 14%. Exhibit A. Of the panel members, only 114 or 4.3% of the 2668 panelists whose race is known to the undersigned were Alaska Natives. ⁽⁹⁾

table 1

table 1 continued.

Absolute disparity "measures the difference between the proportion of the general population the distinctive group represents in the population and its proportion on the source list." ⁽¹⁰⁾ There is a 10.3% absolute disparity in the representation of Alaska Natives on jury panels.

Absolute impact "is another way of expressing absolute disparity. This method compares the raw numbers of individuals in a given demographic group that would be expected to be in a jury venire after random selection with the actual number in the pool." ⁽¹¹⁾ By this measure, the 114 Alaska Natives participating on jury panels during the pertinent time period should have numbered 398.

Comparative disparity "measures the reduced probability that a member of a distinctive group will be called upon to serve on a jury based on the present underrepresentation of that group on the source list." ⁽¹²⁾ The comparative disparity for Alaska Natives is 71%. In other words, the number of Alaska Natives in the jury panels is only 29% as big as it would be if the panels were proportionally representative.

Statistical significance "measures the probability of a given disparity between the composition of the population at large and the source list occurring by chance." ⁽¹³⁾ By this measure, there is less than one one-hundredth of probability that the racial composition of the panels came from the random selection of the statewide civilian voter-age population. (Table 1).

b. The relevant "community" is the District, not the Anchorage division.

The relevant community for determining the representativeness on federal juries is the entire federal district, not merely the Anchorage division, which was created by judicial - not legislative - fiat. In the District of Alaska, Alaska Natives represent 14.6% of the jury-eligible population.

Section 81A of Title 28 of the United States Code created only one judicial district in Alaska, encompassing the entire state. Section 81A does not divide the district into divisions. Title 28 U.S.C. § 1869(e) does provide that, in judicial districts where there are no statutory divisions, "divisions" may be created for the purposes of jury selection. However, in these circumstances, "`division' shall mean ... such counties, parishes, or similar political subdivisions surrounding the places where court is held as the district court ⁽¹⁴⁾ ... [provided that] each county, parish, or similar political subdivision shall be included in some such division."

The Plan divides the District of Alaska for jury selection purposes into five divisions. The Plan, signed by Chief Judge Holland on May 19, 1989, identifies state election districts as the building blocks used to construct each division. ⁽¹⁵⁾ At the time the Anchorage Master Jury Wheel was created in 1989, the Anchorage Division was constituted of State Election Districts 5-16 and 25-27.

(i) State Election Districts Are Not "Similar Political Subdivisions"

The JSSA does not authorize any boundaries for the creation of a division other than "counties, parishes or similar political subdivisions." Title 28 U.S.C. § 1869(e). There are no counties, or parishes in Alaska. As to exactly what constitutes a "similar political subdivision", the term is not defined in the JSSA. However, analogizing to the Voting Rights Act of 1965 (as amended), ⁽¹⁶⁾ "political subdivision" is defined as "any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 42 U.S.C. § 1973(c)(2). Under that definition, the state election districts are clearly not "similar political subdivisions." ⁽¹⁷⁾ They do not constitute administrative units carrying out governmental functions, either alone or arbitrarily aggregated, as they are utilized in the Plan.

Therefore, the jury selection plan for the District of Alaska, and in particular for the Anchorage division as presently constituted, violates the Act because division boundaries are not of the limited type allowed by the Act.

(ii) The Amended Plan Does not Utilize Existing State Election Districts.

In any event, the amendments made to the Plan since 1989 have abrogated the court's own version of what constitutes a legally sufficient "similar political subdivision." See, Second Clerical Amendment To Correct Clerical Error, In Re: Jury Selection Plan, District of Alaska, dated July 8, 1993, signed by Judges Holland, Singleton and Sedwick. The original Plan now serves to illustrate the lack of wisdom in relying upon state election districts, which were reconfigured yet again by the State Legislature after the 1989 version of the Plan was approved. ⁽¹⁸⁾ Yet the 1993 amendment to the Plan that followed the redistricting was not intended to conform the judicial division perimeters with the new state election districts. Instead, the amended Plan sundered some of the new state election districts are among two divisions in a form of judicial gerrymandering. The court obviously intended by its amendments to maintain the divisions it had previously established, even if the cost of doing so was to abandon what was arguably the divisions' statutory license for existence under the JSSA.

(iii) The Illegally Constituted Divisions Exclude Natives.

These complaints regarding the utilization of illegally-constituted divisions are not merely technical. The operation of the divisions has substantial impact upon the selection of jurors in criminal trials within this district, and therefore the illegality constitutes a substantial violation of the Act. The populations within the divisions -- as now constituted -- reflect extraordinarily different demographics. ⁽¹⁹⁾ Therefore, a determination to set a trial in Anchorage, which now provides juror panels drawn only from the Anchorage "division", means that the venire will consistently reflect the smallest percentage of Alaska Natives participating of all the divisions within the district.

Assuming, for the sake of argument only, that the jury source lists are themselves racially representative for the divisions, the operation of the illegally constituted divisions has the effect of excluding 53% of all Alaska Natives from jury service in the Anchorage Division, but only 30% of all Alaska whites. ⁽²⁰⁾

Despite the mandate of 28 U.S.C. §81A, three of the five judicial divisions have not operated to provide petit juries for criminal trials based on offenses occurring within the divisions.

In United States v. Soolak and Omniak, (Case. No. A92-033 Cr.)(Order dated August 31, 1993), five Eskimo defendants charged with the illegal taking of walrus within the Nome division had unsuccessfully moved for trial in Nome, rather than Anchorage. The district court denied an appeal which alleged a Sixth Amendment challenge that the Anchorage division panels do not provide a "fair cross-section of the community" for Inupiat Eskimos from St. Lawrence Island. ⁽²¹⁾

Counsel is aware of at least three cases in which defendants, who would be considered members of a racial or ethnic minority, have been denied a change of the place of trial from Anchorage to one of the other "divisions" where jurors would have been drawn from a demographically different pool: (1) United States v. Soolak and Omniak (Trial Ct. Case No. A92-033 Cr.), (five Inupiat Eskimos from St. Lawrence Island, transfer to Nome denied); (2) United States v. Frank, (App. Case No. 89-30157) (Haida, transfer to Juneau or Ketchikan denied); (3) United States v. Contreras-Ceballos, (App. Case. No. 92-30166, 999 F.2d 432 (9th Cir.1993)(Hispanic, transfer to Juneau denied).

Recently, the district court denied a motion to change the place of trial from Fairbanks to Nome in United States v. Johnny Waters, Case No. F93-109. The charged offense had occurred within the Nome division, which also was where the defendant and nearly all witnesses lived.

In each of these cases, "venue" related considerations were cited as justification for the court's denials to move the criminal jury trials from Anchorage (or Fairbanks, in Waters' case), even though the situs of each offense was within the division where trial was sought. In Soolak and Omniak, the court held that "if the location is Anchorage, defense attorneys, their staff, government witnesses, government attorneys, their staff, and the court and its staff will not have to travel." In Frank and Contreras-Ceballos, the trial courts apparently determined there was no prejudice to a defendant where defense witnesses would be provided air travel and accommodations in Anchorage.

And in Waters, the court stated that "the primary difficulty" in setting trial in Nome was that "the prompt administration of justice" could not be served. Judge Singleton acknowledged that the courts had "no potential jurors contacted," even though there was an existing jury wheel (and qualified jurors). Counsel for the defendant (who had been detained on a pretrial basis) was advised that the earliest jury trial that could be had in Nome was three and one-half to four months away.

The undersigned counsel believes that only one criminal jury trial has been held in the last five years in Nome (Foster, an acquittal), in 1990. One criminal jury trial may have been held in Juneau (Didriksen, a mistrial) and none in Ketchikan as far as counsel knows during that same time frame. ⁽²²⁾

No regularly scheduled sessions of the court are planned by the district court judges outside of Anchorage and Fairbanks, despite the mandatory language of 28 U.S.C. § 81A. And, finally, no pool of qualified jurors is regularly maintained under summons for petit jury service in Nome, Ketchikan, or Juneau.

Three of the five judicial divisions established for the purposes of petit jury selection in criminal trials are a sham. The judicial divisions therefore operate to systematically exclude a majority of all Alaska Natives from jury service in the Anchorage division without justification, and cannot constitute the "community" for the purposes of analyzing a fair cross-section challenge.

B. YOUNG PEOPLE ARE NOT FAIRLY AND REASONABLY REPRESENTED.

1. Young people are a distinctive group.

Based on the defendant's investigation, "distinctive groups" substantially underrepresented in the Anchorage venire include young people. Age has been recognized as a basis for defining a distinctive group for purposes of Sixth Amendment analysis related to jury selection.[ See, United States v. Brady, 579 F.2d 1121, 1131 (9th Cir. 1978).]

The United States Census analyzes age representation by ten-year groups, e.g. 25-34 years of age. As the voter and jury-eligible population only begins with those 18 years of age and older, the groupings for this analysis are 18-24, 25-34, 35-44, and so on. 18-24 year-olds and 24-30 year-olds (which are not separately analyzed by the Census) constitute a distinctive group in American society appropriate for Sixth Amendment treatment. These young adults are viewed as sharing a collective viewpoint and experience, which has been targeted by marketing professionals and widely discussed in the popular press. (Source: Professor Betsy Boze, Business Administration, UAA.) This group is frequently referred to, in the press, as "Generation X." See e.g., Time Magazine, November 22, 1993, "Three Decades After JFK's death, Generation X ponders his mystique."

The United States Supreme Court has refused to define the term "distinctive group." See, Lockhart v. McCree, 467 U.S. 162 (1986). In an earlier case, Rawlins v. Georgia, 201 U.S. 638, 640 (1906), the court said that it depended only on whether those discriminated against would "act otherwise than those who were drawn would act." In Ballard v. United States, 329 U.S. 187, 193 (1946) the question was whether there is a "common thread running through the excluded group - a basic similarity of attitudes, ideas or experience among its members."

Although the Ninth Circuit has thus far rejected age-related jury selection challenges, see e.g. United States v. Fletcher, 965 F.2d 781, 782 (9th Cir. 1992)(college students are not a cognizable group) and United States v. Potter, 552 F.2d 901, 904 (9th Cir. 1977) (nothing distinctive about 18-34 year olds), the appellate court has noted that "community attitudes are important in delineating a cognizable group. [cite omitted] We must consider whether a particular class is in fact thought of as an identifiable group by the larger community." Potter, 552 F.2d at 904.

Appropriate standards of cognizability should be premised on the policies underlying the representativeness principle, especially given overlapping of a questioned group with another, clearly cognizable class such as Alaska Natives. There is no question that Alaska Natives are younger than white Alaskans. For example, median age of all white Alaskans in 1990 was 30.75 years; the median age of Alaska Natives was 24.1 years. ⁽²³⁾

2. The representation of young people in the venires from which the jury is selected is not fair and reasonable in relation to the number of young people in the community.

a. Young people are not fairly represented on Anchorage petit jury panels.

The defendant, through counsel, has conducted an analysis by race of all panel members who appeared and were assembled -- and were not excused -- for jury service in District Court for each jury trial, civil and criminal, scheduled in Anchorage during the calendar years 1992 and 1993. ⁽²⁴⁾

The table provided on the next two pages illustrates the panel-by-panel breakdown of the age representation of those panels and analyzes them by four statistical measures: absolute disparity, absolute impact, comparative disparity and statistical significance. ⁽²⁵⁾

Table 3 reflects that the representation of 18-24 year olds in the adjusted state population is 12.9%. Of the panel members, only 45 or 2.2% of the 2038 panelists whose age is known to the undersigned were 18-24 year olds at the time they were qualified. ⁽²⁶⁾ Under all statistical approaches in this brief, it has been assumed that age representativeness on jury panels is to be based upon the statewide population of the age groups.

Absolute disparity "measures the difference between the proportion of the general population the distinctive group represents in the population and its proportion on the source list." ⁽²⁷⁾ There is a 10.7% absolute disparity in the representation of 18-24 year olds on jury panels as opposed to their representation state-wide.

Absolute impact "is another way of expressing absolute disparity. This method compares the raw numbers of individuals in a given demographic group that would be expected to be in a jury venire after random selection and with the actual number in the pool." ⁽²⁸⁾ By this measure, the 45 18-24 year olds participating on jury panels during the pertinent time period should have numbered 295.

Comparative disparity "measures the reduced probability that a member of a distinctive group will be called upon to serve on a jury based on the present underrepresentation of that group on the source list." ⁽²⁹⁾ The comparative disparity for 18-24 year olds is 82.9%. In other words, the number of 18-24 year olds in the jury panels is only 17.1% as big as it would be if the panels were proportionally representative.

Statistical significance "measures the probability of a given disparity between the composition of the population at large and the source list occurring by chance." ⁽³⁰⁾ By this measure, there is less than one one-hundredth of probability that the age composition of the panels came from the random selection of the statewide civilian voter-age population.

Under any of these approaches, the representation of 18-24 year olds on jury panels is not fair and reasonable with respect to their representation in the community.

b. The relevant "community" is the District, not the Anchorage division.

As previously argued, the relevant community for determining the representativeness on federal juries is the entire federal district, not merely the Anchorage division, which was created by judicial - not legislative - fiat. See above, at I.A.2.b(i) and (ii).

II. THE JURY SELECTION PLAN FOR THE DISTRICT OF ALASKA SUBSTANTIALLY VIOLATES THE ACT AND THE CONSTITUTION BECAUSE THE VENIRE FOR THE DEFENDANTS' GRAND JURY DID NOT REFLECT A FAIR CROSS-SECTION OF THE COMMUNITY.

The most notable distinction between the grand jury and the petit jury source lists is that the petit jurors are drawn from a divisional wheel whereas the grand jurors are drawn from all the divisional master wheels, randomly and on a pro rata basis. ⁽³¹⁾ In theory, then, the representation in grand juries of Alaska Natives, for example, should be proportional to statewide representation.

The grand juror selection process has been diagrammed by the undersigned. "Diagram 2" follows this page.

d.2

d.2 con.t

Mr. Pleier and Mr. xxxxx were indicted by a grand jury on August 23, 1993. In the course of conducting her investigation, the undersigned has reviewed "masked" ⁽³²⁾ questionnaires completed by all potential grand jurors who were apparently summoned and assigned to be on "Grand Jury Panel 92-1." According to the Clerk of Court, this was the panel from which the grand jury was constituted which indicted Messrs. xxxxx and Pleier.

A total of 66 persons were summoned and assigned to the panel that became "GJ 92-1." Of the 64 whose race is known, five were Alaska Natives. Of those five Alaska Natives, two received permanent excuses, one in April 20, 1992, and the other on March 24, 1992, which barred them from further service. Two other Natives received "temporary" excuses on April 28, 1992. The fifth Native may not have appeared in court at all. From the very limited attendance records made available to defense counsel, it appears that none of the five Natives may have attended court for grand jury service after April 28, 1992, neither as grand jurors nor as alternates substituting in for excused grand jurors. Counsel for the defendants asserts that the racial representation of 0% on the defendants' grand jury did not provide a "fair cross-section" of Alaska Natives, based on their proportion (14%) in the district-wide population.

With such a numerically small group of individuals to analyze, a larger sampling is required for purposes of statistical analysis. Therefore the analysis of those summoned to the GJ92-1 panel has been expanded to include other grand jury groups: 92-2 and 93-1. However, there are still problems with analyzing this group of 272 masked records. First, the size of the population analyzed is still not optimal, while it is statistically reliable. Second, the individuals summoned do not necessarily constitute the grand jury panel, as apparently a very large proportion of these summoned individuals receive permanent excuses or disqualifications from service. For example, among the 66 persons summoned to constitute grand jury panel 92-1, 23 received permanent excuses at some point during their terms.

In any event, however, there are substantial disparities in the representation of Alaska Natives and young people in the pool from which the grand jurors are drawn.

In analyzing the representativeness of Alaska Natives, there is an absolute disparity of 5% and a comparative disparity of 34% with respect to their numbers on these three grand jury panels. With respect to young people, there is an absolute disparity of 4.8% and a comparative disparity of 37.5%. ⁽³³⁾

Table 4

These disparities provide compelling evidence that the grand jury which indicted Messrs. xxxxx and Pleier were not drawn from a venire which constituted a fair cross-section of the community. Thus the indictments must be dismissed.

III. THE LOCAL PLAN FOR JURY SELECTION SUBSTANTIALLY VIOLATES THE PUBLIC POLICIES OF 28 U.S.C. §1861.

A. THE USE OF THE ACTUAL VOTERS LIST FRUSTRATES THE MANDATE THAT ALL CITIZENS WITHIN THE DISTRICT BE AFFORDED AN OPPORTUNITY TO SERVE AS JURORS.

1. The registered voter list is the preferred source.

Title 28 U.S.C. § 1863(b)(2) authorizes the selection of prospective jurors "from voter registration lists or the lists of actual voters of the political subdivisions within each division." The local Plan dictates that jurors shall be selected from the lists of actual voters. (Additionally, the local Plan further effectively limits the pool to those who voted in the last presidential election.

While the Jury Selection and Service Act does grant the district court the discretion to elect the use of the actual voter list, rather than the registered voter list, 28 U.S.C. § 1863(b)(2), the larger list of registered voters is nevertheless the "preferred source." United States v. Test, 550 F.2d 577, 584 (10th Cir. 1976); Foster v. Sparks, 506 F.2d 805, 816 (5th Cir. 1975) (citing statement re S.989 (Jury Selection & Service Bill of 1967) by Judge Irving Kaufman before the United States Senate Committee on Improvements in Judicial Machinery, in Works of Committee on the Operation of The Jury System of The Judicial Conference of the United States 1966-1973, 44, 45-46 (1973), Report of the District Court Panel on Jury Selection in the District of Massachusetts, 58 F.R.D. 506 (1973)), and House Report No. 1076, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Ad. News 1792, 1799).

That legislated preference is reflected in the results of a now-completed survey of all district courts within the Ninth Circuit. It appears only the District of Alaska utilizes actual voter lists rather than the registered voters list. The Districts of Arizona, Montana, Nevada, Oregon, Utah, Eastern and Western Districts of Washington and the Central and Eastern District of California utilize the list of registered voters, although Nevada does allow for the supplemental use of city and telephone directories when there is an unanticipated shortage of potential jurors. The District of Hawaii and the Northern District of California routinely supplement the lists of registered voters with motor vehicle records.

The legislative history of the Act indicates that the alternative of the actual voters list was only offered because registration lists "may not be up-to-date in some areas." 1968 U.S. Code Cong. and Admin. News 1799. However, in Alaska, the validity of voter registration records is not an issue. Registration is cancelled by the state division of elections after two years if a registered voter has not voted, not reregistered or otherwise indicated an intent to remain registered within that two year period, e.g. by updating a mailing address. 6 AAC 25.080(a). ⁽³⁴⁾

Therefore, the use of the actual voters list rather than the registered voters list in Alaska is in conflict with the stated policy of the United States District Court (Plan, page 2) and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, both of which mandate: "all citizens shall have the opportunity to be considered for service on the grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose."

2. The conflict with public policy is significant because it results in the exclusion of more than 30% of all registered voters from jury service.

Since the list of actual voters in the Qualified Grand Jury Wheel (used for grand jury selection) and the Anchorage Master Wheel (used for petit jury selection) is further limited by the local Plan to those who participated in the last presidential election, the requirement that a registered voter had to have voted in 1988 meant that more than 30% of all registered voters in Alaska were excluded from jury service in violation of the policy declaration of 28 U.S.C. § 1861("all citizens shall have the opportunity...and the duty to serve.") ⁽³⁵⁾

B. THE CURRENT USE OF THE ACTUAL VOTER LIST ALSO VIOLATES THE JSSA MANDATE TO UTILIZE RECORDS FROM THE LAST GENERAL ELECTION.

The limitation of the jury source list to actual voters in the general elections which occurred in the four-year cycle of the presidential elections operates to exclude those registered voters who participated in elections within two years of the presidential election and whose names remain on active voter status.

Thus, an individual voting only in general elections which include the state gubernatorial race, held every four years but two years apart from the presidential elections, is among the group to be excluded. Similarly, an Alaskan interested in voting in a general election for a U.S. Congressman and on subsistence questions (such as that in 1982 which brought out a very significant Native vote) but not wanting to participate in a presidential election already decided hours before the polls close in Alaska, would also be among those excluded.

The potential jury pool - reduced by the limitation to only actual voters in presidential elections - is further depleted by another aspect of the Plan, i.e. that which replaces the jury source list only once every four years, instead of utilizing the list from the last general election. In effect, then, the Plan dictates that the exercise of one right - the opportunity to serve on a jury - is conditioned not merely on the exercise of the franchise but on the exercise of the franchise in a specific election.

Title 28 U.S.C. § 1863(b)(4) requires that the plan for the district court "provide for periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years." The local Plan does that, providing "the master jury wheels shall be emptied and refilled between January 1 and July 1, 1977 and every fourth year thereafter." (page 4) In implementing its Plan, this District has, in fact, exploited the maximum-allowable time frame (four-year intervals) for the refilling of the master jury wheel. ⁽³⁶⁾

While additional names from the Anchorage Master Wheel have been drawn and inserted into the Anchorage Qualified Master Wheel between presidential elections, the source list itself is apparently not supplemented between presidential elections. This is true even though the local Plan calls for the selection of all jurors from the "list of actual voters for the last general election." (Page 3, amended 5/19/89) See also, 28 U.S.C. § 1869(c) and (d) (definitions), indicating that the pertinent voting list (which is the source list) should be from the most recent State or Federal general election.

The House Report on S.989, which was enacted as the Jury Selection and Service Act of 1968, stated:

Your committee intends that a general election be understood as one in which statewide voting takes place, even if the candidates do not represent all parts of the State. Thus, for example, regular elections for Members of the House of Representatives are "general elections" within the meaning of this bill.

1968 U.S. Code Cong. & Admin. News 1807. General elections in the State of Alaska (which is contiguous with the District) take place every two years. There was a general election on November 6, 1990. ⁽³⁷⁾ However, none of the thousands of names added to the Master Jury Wheels after November 1990 were derived from the 1990 actual voter lists. ⁽³⁸⁾

The legislative purpose for specifying that voter lists were to be taken from the "last general election" was that [W]hile the two subsections permit the plan to choose between the state and Federal lists, they also insure that the list used will in any event not be more than 2 years old.

House Report No. 1076, 1968 U.S. Code and Cong. & Admin. News 1807 (emphasis added).

The use of voter lists which are updated only every four years was viewed as an undesirable practice by the same Congress that enacted the JSSA. For example, the House Report noted that "[s]ince in the District of Columbia there is voting only at Presidential elections, voter lists or voter registration lists would soon become out of date, especially in view of the mobility of the local population." (House Report No. 1076, 1968 U.S. Code Cong. & Admin. News, p.1800.)(emphasis added). (Accordingly, the JSSA allows the District of Columbia to use the city directory as the basic source from which juror names are drawn instead of jury lists.)

The exclusive utilization of four-year old lists of actual voters is offensive to the public policy of 28 U.S.C. § 1861 and that stated in the local Plan. ⁽³⁹⁾

C. SIMILARLY, THE FAILURE TO EMPTY THE QUALIFIED JURY WHEEL BY JULY 1, 1993, IS ALSO A SUBSTANTIAL VIOLATION OF THE ACT.

Mr. xxxxx and Mr. Pleier were indicted and expect to be tried by jurors who were drawn from the Anchorage qualified jury wheel, which was derived from the list of actual voters in the 1988 general election.

Title 28 U.S.C. § 1863(b)(4) requires that master jury wheels, the source of the voters in the qualified wheels, be emptied and refilled at intervals not to exceed four years. Although the local Plan calls for the master jury wheels to be emptied and refilled between January 1 and July 1, 1993, the Clerk of Court for this District has interpreted the Plan as not requiring the emptying of the qualified wheels, ever. Thus, the only way a qualified jury wheel is emptied is if the reservoir of names in the wheel is completely depleted. At this juncture, the district court is utilizing voter records more than five years old for jury selection purposes, which clearly subverts the policy of the Act. ⁽⁴⁰⁾ (See, Argument II.)

If the violation "operate[s] to frustrate the goals of the Act," then the violation is substantial, not technical in nature. See United States v. Goodlow, 597 F.2d 159, 162 (9th Cir. 1979).

CONCLUSION

It is axiomatic that fair trials and strict adherence to systematic procedural safeguards are critical to the legitimacy and integrity of the criminal justice system. One fundamental procedural safeguard is the Sixth Amendment guarantee that criminal defendants will be tried by an impartial jury drawn from the "State and district" where the crime was committed. The Supreme Court has interpreted this guarantee to require that the jury be chosen from a representative cross-section of the community. The fair cross-section requirement has developed in harmony with basic democratic ideals; the jury must be truly representative of the community to be an instrument of public justice. ⁽⁴¹⁾

In these cases, this court should find that the measures of disparity cited here, both with respect to the relevant grand jury and the petit jury venire, reflect that the operation of the local Plan does not provide a fair representative cross-section for sixth amendment purposes.