United States of America, Appellee, v. Paul Guzman, Appellant, 468 F.2d 1245 (2d Cir. 1972)

This is an appeal from a judgment of conviction entered against Paul Guzman on March 15, 1972 in the United States District Court for the Southern District of New York after a three day trial before United States District Court Judge Charles M. Metzner and a jury.

Guzman was found guilty of both counts of an indictment which charged him with having failed to report for his Armed Forces physical examination and for induction into the United States Armed Forces. Each offense is a violation of the Military Selective Service Act of 1967, 50 U.S.C. § 462(a). Judge Metzner sentenced appellant to two years imprisonment on each of the two counts, the sentences to run concurrently. Appellant was released on bail pending the outcome of this appeal.

The only issue on appeal is a challenge to the system of selecting grand and petit jurors in the Southern District of New York at the time of appellant's indictment and trial. Prior to his trial, Guzman raised this issue before the trial court and moved for an order directing that a hearing be held to determine whether the grand jury that indicted him and the panel from which his petit jury would be selected were chosen in violation of the Federal Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., and the Fifth and Sixth Amendments to the Constitution of the United States. He also asked for discovery of certain jury records, dismissal of the indictment and a stay in the prosecution of his case until the requested hearing was held.¹  The trial court rejected all of his claims and denied his motion. 377 F. Supp. 140 (S.D.N.Y. 1972).

On appeal, Guzman again argues that the method by which his grand and petit juries were chosen denied him his right to be indicted and tried by juries drawn from a fair cross section of the community and denied him the equal protection of the law. His specific challenges are (1) that the Southern District Plan for Random Jury Selection, adopted pursuant to the Jury Selection Act,²  mandates the use of voter registration lists as the sole source of names of people who ultimately will sit on the juries thus violating the Jury Selection Act because it results in an underrepresentation of people between the ages of 24³  and 30 since they tend to register in fewer numbers than older voters; (2) that he was denied equal protection of the law because at the time of his trial, 18 to 20 year olds had the right to vote but were not on jury lists; and (3) that he should have been allowed discovery of certain grand jury questionnaires and an evidentiary hearing in order to substantiate his allegations.⁴ 

The court below rejected all of the appellant's claims, basing its decision on its opinion that the asserted age groups (18 to 20 and 24 to 30) were not "cognizable groups" for the purposes of challenges to jury selection procedures. 337 F. Supp. at 145-146. It therefore denied Guzman's motion for a hearing and for discovery, 337 F. Supp. at 146, and proceeded to trial.

We find it unnecessary to reach the issue of the "cognizability" of the asserted age groupings for the purposes of challenges to jury selection processes.⁵  As far as the claim that youth between the ages of 24 to 30 are underrepresented as a result of the Southern District Plan, we note that the underrepresentation, if in fact there is such underrepresentation, does not result from systematic exclusion by those who oversee the jury selection procedure. See United States v. Agueci, 310 F.2d 817, 833-834 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11 (1963). At the time of appellant's indictment and trial people between the ages of 24 and 30 (who possessed the other minimal qualifications) were eligible to vote in the Southern District and their names were included in the lists from which grand and petit jurors were taken if they chose to register.

The Jury Selection Act requires that grand and petit juries be selected from a random cross section of the community, 28 U.S.C. § 1861, and if this goal cannot be achieved through the use of voter (or voter registration) lists alone, the Act mandates the use of "other . . . sources of names . . . where necessary. . . ." 28 U.S.C. § 1863(b) (2). Therefore the question before us is whether the Southern District Plan violates the basic purpose of the Act, i. e., that juries should be drawn from a fair cross section of the community, so that other sources of names must be employed. We think not. In districts where obstacles are placed in the paths of certain citizens attempting to register to vote, the voting rolls must be supplemented to achieve a list reflecting a fair cross section of the community. But in the Southern District, where the asserted age group is entitled to register to vote and has done so (albeit in lower proportion than its percentage of the total population), we can find no systematic discrimination sufficient to require the use of alternative sources for jury lists.⁶  See United States v. Agueci, supra at 834. It was not unreasonable for Congress to assume that ordinarily voter registration lists are sufficient sources for jury selection lists.

We find no merit in appellant's claim that the exclusion of 18 to 20 year olds from the grand jury which indicted him and from the petit jury which tried him was a denial of the equal protection of the law. This allegation resolves itself into the contention that 18 to 20 year olds should have been placed on jury lists as soon as they received the right to vote under the Twenty-Sixth Amendment.⁷  The obvious impracticality of implementing such a scheme, especially in the Southern District, is a sufficient basis for affirmance of the decision below. No alternative list of 18 to 20 year olds is readily and practically available. Draft board lists can be obtained for the men above the age of 18 but such lists suffer from the infirmity that men register with their local board in the area in which they live when they turn 18, and the registrant keeps that local board despite subsequent changes of address (although he must notify his local board of any change of address). Other lists (which would have to be consulted for women at least) such as high school registration forms, driver's license records, etc. present innumerable administrative obstacles to their efficient use. No such difficulties exist in respect to the use of presidential voter registration lists.

Moreover, only six months elapsed between the date when the Twenty-Sixth Amendment took effect (June 30, 1971) and the commencement of appellant's trial (January 25, 1972).⁸  That time span was certainly too short to implement appellant's suggestion. It was a permissible hiatus. See Glasser v. United States, 315 U.S. 60, 65, 62 S. Ct. 457, 86 L. Ed. 680 (1942).

The allegations of the complaint were therefore insufficient, even if true, to establish a "substantial failure to comply," 28 U.S.C. § 1867(d), with the Act's mandate that juries be "selected at random from a fair cross section of the community," 28 U.S.C. § 1861. Nor do they establish a violation of the United States Constitution. Therefore, a hearing was not required, 28 U.S.C. § 1867(d), and discovery of the grand jury questionnaires was not "necessary" to the preparation of a valid motion, 28 U.S.C. § 1867(f). We affirm the denial of the defendant's motion and the conviction which followed.