Opinion
CASE NO. 03-80228
September 3, 2003
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on (1) Defendant Montini's Motion for Disclosure of Jury Records; and (2) Defendant Montini's Motion to Dismiss the Indictment or Stay the Proceedings Pending the Selection of a Jury in Conformity with the Jury Selection and Service Act. The Government has responded to both Motions. Pursuant to E.D. MICH. Admin. Order No. 00-AO-060, motions for disclosure of juror information are to be decided by the Chief Judge of the Eastern District of Michigan. The Court finds that the relevant law and facts have been adequately set forth in the papers submitted, and that oral argument would not assist in the disposition of the instant motion. Therefore, the Court HEREBY ORDERS that the Motions be decided on the briefs submitted. For the reasons set forth below, Defendant Montini's Motion for Disclosure of Jury Records is GRANTED IN PART and DENIED IN PART, and Defendant Montini's Motion to Dismiss the Indictment or Stay the Proceedings Pending the Selection of a Jury in Conformity with the Jury Seletion and Service Act is DENIED.
II. BACKGROUND
Before the Court is Defendant Montini's Motion for Disclosure of Jury Records. This is Defendant Montini's second such motion, the first such motion having been filed on May 2, 2003. With his original May 2, 2003, motion, Defendant Montini sought the disclosure of a wide range of data and documents that were in any way related to the Court's Juror Selection Plan or the Court's implementation of that Plan. In its Opinion and Order of June 10, 2003, the Court ruled the following:
For the reasons set forth above, the Court HEREBY ORDERS that, pursuant to E.D. MICH. Admin. Order No. 00-AO-060, Defendants are allowed to inspect the following materials: juror number; race; and Hispanic Ethnicity. Otherwise, Defendant Montini's Motion for Disclosure of Jury Records is DENIED.See June 10, 2003, Opinion and Order; United States v. Montini, et al, Case No. 03-CR-80228 (Zatkoff, C.J.). The Court's decision was based, in large part, on the fact that Defendant Montini sought access to an enormous amount of data and documents without indicating what he sought to discover. While Defendant Montini's May 2, 2003, motion made clear that he intended to challenge the Court's Juror Selection Plan, it also made clear that Montini was still searching for the grounds upon which to base this challenge. See June 10, 2003, Opinion and Order, p. 19 (quoting United States v. Davenport, 824 F.2d 1511, 1515 (7th Cir. 1987) ("In short, `Defendant[s are] making a claim that appears to lack any bona fide basis, a frivolous exploration.'").
On July 16, 2003, Defendant Montini filed his second Motion for Disclosure of Jury Records, (hereinafter "Motion for Disclosure"), and contemporaneously filed a Motion to Dismiss the Indictment or Stay the Proceedings Pending the Selection of a Jury in Conformity with the Jury Selection and Service Act, (hereinafter "Motion to Dismiss"). With these two Motions, Defendant Montini has set forth the basis upon which he is challenging the Court's Juror Selection Plan, and requests the data and documents he alleges are necessary to adequately prepare this challenge. Defendant Montini's Motions are based upon what Montini characterizes as a "voluntary opt-out problem" in the Eastern District of Michigan, and the Defendant seeks the information he alleges is necessary in order to determine the magnitude of this "problem."
According to the Defendant's Motions, the "voluntary opt-out problem" may be described in the following manner. Defendant claims 28 U.S.C. § 1866(g) "requires district courts to hold show cause hearings when a qualified juror ignores a summons." See Defendant's Memorandum in Support of Motion to Dismiss, p. 1. In the Eastern District of Michigan, however, the Court does not hold show cause hearings when a qualified juror ignores a summons, nor does the Court, (according to the Defendant), take any formal action to require those who ignore a summons to fulfill their jury service obligations. To demonstrate the potential magnitude of this problem, Defendant claims the Court has not held a show cause hearing pursuant to § 1866(g) since the mid-1990s. This practice, according to Defendant Montini, is "fundamentally inconsistent with the policies and procedures mandated by the [Jury Selection and Service Act of 1968]" in that it violates the Act's goals of (1) random selection; and (2) exclusion only on objective grounds, and, therefore, "constitutes a substantial failure to comply with the terms of the Act[.]" See Defendant's Memorandum in Support of Motion to Dismiss, pp. 1 8. Defendant Montini requests that the Court refrain from ruling on his Motion to Dismiss until after he has had the opportunity to review the relevant jury records and to supplement the Motion to Dismiss. For the reasons set forth below, the Court shall GRANT IN PART and DENY IN PART Defendant's Motion for Disclosure and DENY Defendant's Motion to Dismiss pursuant to 28 U.S.C. § 1867(d).
III. DISCUSSION
A. Motion for Disclosure
As stated above, the basis of Defendant's Motion to Dismiss is that the Court has a practice of not holding show cause hearings when prospective jurors, who had previously returned juror qualification forms, ignore summonses issued pursuant to 28 U.S.C. § 1866(b). According to the Defendant, this practice constitutes a substantial failure to comply with the Jury Selection and Service Act. Defendant seeks jury selection records "necessary in the preparation" of his simultaneously submitted Motion to Dismiss pursuant to 28 U.S.C. § 1867(f). Specifically, Defendant seeks information related to response rates to summonses and information related to show cause hearings held because of a potential juror's non-response to a summons. Section 1867(f) of the Act provides the following:
(f)The contents of records or papers used by the . . . clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presentation of a motion under subsection (a), (b), or (c) of this section, until after the master jury wheel has been emptied and refilled . . . and all persons selected to serve as jurors . . . have completed such service.28 U.S.C. § 1867(f).
Pursuant to the Court's Juror Selection Plan, the clerk of the Court is to provide public access to the following:
(A)Juror Selection Plan for the Eastern District of Michigan; (B)a description of the procedure used by the electronic data processing system to randomly select and assign names during the implementation of this plan; and (C)the clerk's directives to any contractor that implements any portion of this plan, including the execution of any pure random selection procedures, and that contractor's quarterly certifications required under (g)(3) of this plan.See E.D. MICH. Admin. Order No. 00-AO-083; Juror Selection Plan § (s)(3)(A)-(C). There is no indication that this information has not been provided, since, with his instant Motion, the Defendant does not seek this information.
In its Opinion and Order of June 10, 2003, and in response to the Defendant's May 2, 2003, motion for disclosure, the Court ordered, pursuant to E.D. MICH. Admin. Order No. 00-AO-060, that Defendant be entitled to review information related to juror number; race; and Hispanic ethnicity. Dissatisfied with this Order, Defendant Montini has moved for an Order allowing him to review juror information beyond that allowed in the Court's June 10, 2003, Opinion and Order, and, therefore, information beyond that contemplated by E.D. MICH. Admin. Order No. 00-AO-060. Accordingly, the Chief Judge has the responsibility of reviewing and ruling upon the propriety of providing any such additional information, and this information will only be provided upon good cause shown. See E.D. MICH. Admin. Order No. 00-AO-060. Defendant may demonstrate good cause upon a showing that the material sought is necessary in the preparation of a motion to dismiss. See E.D. MICH. Admin. Order No. 00-AO-060; 28 U.S.C. § 1867(f). See also June 10, 2003, Opinion and Order pp. 15-16 ("Thus, Defendants are entitled to only such records or papers that they need in order to challenge the jury selection process [T]he Court reads the plain language of the statute to mean that Defendants' unqualified right to records or papers is limited to only such data that they need to challenge the jury selection process.").
The Court finds that the Defendant is entitled to a description of the procedures used by the Court to enforce a summons issued pursuant to 28 U.S.C. § 1866(b). To this extent, the Defendant's Motion for Disclosure is GRANTED. This description is attached to this Opinion and Order as Appendix A. The Court notes that it has previously ordered that the Defendant be allowed to inspect the following materials: juror number; race; and Hispanic Ethnicity. To demonstrate compliance with the procedure described in Appendix A, when the Defendant conducts this review, Defendant may also collect information regarding a summoned prospective juror's failure to appear. Specifically, when compiling data from juror qualification forms, in addition to juror number; race; and Hispanic Ethnicity, Defendant may also note (1) whether a summoned prospective juror appeared in response to the summons; and (2) if not, whether the Court sent a follow-up letter to the non-responding prospective juror.
Since it is clear from a description of the Court's procedure that it is not the practice of the Court to hold show cause hearings, and since a show cause hearing is the obligation the Defendant seeks to impose upon the Court, the Court finds that no other information is necessary for the Defendant to prepare his Motion to Dismiss. Except for the attached Appendix A, and the information described above, Defendant's Motion is DENIED. Since the Defendant was already in possession of a description of the Court's summons enforcement practice — the Court's procedure having been described to Mr. Romero on July 9, 2003 — the Court declines to hold the Defendant's Motion to Dismiss in abeyance and now turns to its merits.
B. Motion to Dismiss
Pursuant to 28 U.S.C. § 1867(d), a motion challenging the provisions of the Jury Selection and Service Act must be accompanied by a sworn statement of facts which, if true, would constitute a substantial failure to comply with the Act. See § 1867(d). The legislative history of the Act indicates that the sworn statement requirement is an important one.
The final basic safeguard against the dilatory use of challenges is contained in section 1867(d). It requires that the challenge motion be accompanied by a sworn statement of facts which, if true, demonstrate a substantial failure to comply with the statutory guide. This threshold requirement to a successful challenge will make it possible for the judge to review a challenge motion and swiftly dispose of it if it fails, on its face, to state a case for which a remedy could be granted.
H.R. Rep. No. 1076, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. Admin. News 1792,1806. See also S. Rep. 891,90th Cong., 1st Sess. 33 (1967); THE JURY SYSTEM IN THE FEDERAL COURTS: WORKS OF THE COMMITTEE ON THE OPERATION OF THE JURY SYSTEM OF THE JUDICIAL CONFERENCE OF THE UNITED STATES (1966-1973) 80 (1973).
There is no sworn statement of facts accompanying Defendant's Motion to Dismiss. There is, however, the Declaration of Tobin J. Romero, one of the Defendant's attorneys. The Court will construe this Declaration as a sworn statement of facts. The Court has reviewed Mr. Romero's Declaration, Defendant's Motion, and the Memorandum in Support, and the Court finds that Mr. Romero's Declaration does not demonstrate a substantial failure to comply with the Jury Selection and Service Act, but, instead, fails to state a case for which a remedy may be granted. Accordingly, Defendant's Motion to Dismiss is DENIED.
Defendant Montini seeks to impose upon the Court an obligation not contemplated by the Act. Specifically, and as stated above, Defendant seeks to require the Court to hold a show cause hearing every time a qualified prospective juror fails to respond to a summons issued pursuant to § 1866(g). Section 1866(g) of the Act reads as follows:
(g) Any person summoned for jury service who fails to appear as directed shall be ordered by the district court to appear forthwith and show cause for his failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $100 or imprisoned not more than three days, or both.28 U.S.C. § 1866(g). According to the Defendant, § 1866(g) "requires a mandatory show cause hearing when a qualified juror ignores a summons." See Memorandum in Support of Motion to Dismiss, p. 10. This requirement is "mandatory and admits of no exceptions" See id. at 9.
The problem with the Defendant's argument, however, is that while the Defendant demands strict technical adherence to the language of the statute, the Defendant simultaneously reads into the statute a requirement that does not exist. To begin with, according to the language of the statute, the only obligation imposed upon the Court by § 1866(g) is to order a non-respondent to appear forthwith and show cause for his failure to comply with the summons. See § 1866(g). This obligation could be satisfied by an order, letter, or even telephone call, which orders a non-respondent to appear, either in person, in writing, or via telephone, to explain his/her non-responsiveness. While the Defendant seeks to impose a "show cause hearing" requirement upon the Court, the word "hearing" is not contained in the statute. If the drafters of § 1866(g) sought to impose upon the district courts of the United States the show cause hearing requirement described by Defendant, they would have at least used the word "hearing" in doing so.
In addition, the Eastern District of Michigan follows the procedures set forth in the Clerk's Manual contained in the Guide to Judiciary Policies and Procedures, (hereinafter "Guide"). See Guide to Judiciary Policies and Procedures, Vol. 4 Clerk's Manual United States District Courts, Ch. 23 § 5. The Clerk's Manual contained in the Guide states the following:
5. Follow-up Procedures on Jurors Who Do Not Report
All versions of the summons form should contain an admonishment to the juror that failure to comply with the summons as directed is punishable by law, and each court should establish practices for monitoring and enforcing compliance. Summoned jurors who fail to report for service can be ordered by the court to appear and show cause for failure to comply with the summons. 28 U.S.C. § 1866(g). This section also prescribes certain penalties which may be imposed upon persons who fail to show good cause for noncompliance with the summons.
In most instances, a simple follow-up letter or postcard, reminding prospective jurors of their obligation, the appropriate method for responding, and the penalty for failing to respond, will be sufficient. Most non-respondents are not recalcitrant citizens, but rather those who have moved or become unavailable to serve. Each court should develop and implement procedures for enforcing a summons in those cases in which there is a knowing and willful failure to respond. One method would be an order to show cause.See Guide, Vol. 4, Ch. 23 § 5.
Consistent with this Court's interpretation, the Guide to Judiciary Policies and Procedures does not direct a Court Clerk to hold "show cause hearings" every time a prospective juror fails to respond to a summons issued pursuant to § 1866(b), nor does the Guide discuss, or even mention, a hearing requirement. This Guide codifies policies promulgated by the Director of the Administrative Office of the United States Courts, contains policies approved by the Judicial Conference of the United States, and provides direction to court administrators in the federal Judiciary all across the country, including this Court. Defendant's contention that § 1866(g) requires a show cause hearing every time a qualified prospective juror fails to respond to a summons issued pursuant to § 1866(b), and that somehow this obligation is being avoided by not only this Court, but every district court that follows the Guide finds absolutely no support in the text of the statute, no support in the Guide, and no support in cited case law.
Defendant relies upon four cases in support of his Motion to Dismiss. These cases are (1) United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977); (2) United States v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1997); (3) United States v. Branscome, 529 F. Supp. 556 (E.D. Va. 1982); and (4) United States v. Allen, 160 F.3d 1096 (6th Cir. 1998). None of these cases, however, support the Defendant's contention that § 1866(g) imposes a "show cause hearing" requirement upon the Court, nor do these cases even discuss § 1866(g). Therefore, none of these cases assist the Defendant in demonstrating a substantial failure to comply with the Act, let alone any failure to comply. And while the Defendant is unable to cite any authority for the proposition that § 1866(g) requires "show cause hearings," there is authority that expressly states the contrary. See United States v. Douglas, 537 F. Supp. 817, 827 (N.D. Tex. 1993), aff'd in part, rev'd and vacated in part on other grounds by United States v. Fike, 82 F.3d 1315 (5th Cir. 1996).
In Douglas, the Fort Worth division of the Northern District of Texas had implemented a practice whereby, prior to the commencement of voir dire, the jury clerk would telephone those persons who failed to appear as summoned in an attempt to ascertain why they failed to appear. See Douglas, 837 F. Supp. at 824 n. 8. The defendant in Douglas claimed that this practice violated the Jury Selection and Service Act of 1968. See id. at 825-26. After concluding that this practice was in substantial compliance with 28 U.S.C. § 1866(g), the district court judge stated the following:
The Court is not convinced that the clerk's actions constitute even a technical violation. The clerk testified that, pursuant to a request akin to a "standing order" of the Fort Worth division district judges, her policy is to always attempt to contact recalcitrant jurors and ascertain the reasons for their failure to obey the summons, which she then presumedly reports to the district judges, who then decide whether any further action should be taken. Thus, the district judges have essentially ordered the recalcitrant juror to `appear' via telephone before the court's clerk and give the reason for their disobedience to the summons. Although the Court agrees that the procedure used may have a lesser impact on the recalcitrant juror than the procedure contemplated by § 1866(g), the Court does not agree that the procedure used violates the statutory provision.Douglas, 837 F. Supp. at 827 n. 15.
In its review of the district court judge's analysis regarding the requirements of § 1866(g), the Court of Appeals for the Fifth Circuit expressly approved of the Douglas court's reasoning in United States v. Fike, 82 F.3d 1315, 1322 (5th Cir. 1996), overruled in part on other grounds by United States v. Brown, 161 F.3d 256 (5th Cir. 1998), overruled in part on other grounds by United States v. Cantu, 230 F.3d 148 (5th Cir. 2000). Although this decision has been overruled on other grounds, the Fifth Circuit's analysis regarding § 1866(g) still stands. Furthermore, in its decision, the Fifth Circuit expressly rejected the defendant's attempt to use Kennedy to reach a contrary result:
Appellants cite Kennedy for the proposition that the jury clerk's action in telephoning jurors in this case has been forbidden by the Fifth Circuit because it "introduces a significant element of nonrandomization into the selection process that not only technically violates, but substantially departs from the Act's requirements." Although the language is accurately quoted, the practice condemned by the Kennedy opinion is the use of volunteer jurors rather than the practice of contacting them by phone.
Neither the contacting of absent jurors by phone nor the use of "postponed" jurors "introduces a significant element of nonrandomization into the selection process. Further, appellants have advanced no convincing argument for the proposition that the procedures used in this case violated the local Jury Plan. We therefore find no error in the district court's holding that the procedures complained of violated neither the Jury Selection Act nor the Jury Plan.Fike, 82 F.3d at 1322 (citations omitted).
This Court, therefore, rejects the Defendant's argument that § 1866(g) requires the Court to hold a show cause hearing every time a qualified prospective juror fails to respond to a summons issued pursuant to § 1866(b). Accordingly, by basing his argument on this Court's practice of not holding show cause hearings, and by merely stating facts in the Romero Declaration which support this argument, the Defendant is unable to demonstrate a prima facie case for which a remedy might be granted pursuant to § 1867(d). Accordingly, Defendant's Motion to Dismiss must be DENIED.
IV. CONCLUSION
Accordingly, and for the reasons set forth above, IT IS HEREBY ORDERED that the Defendant's Motion for Disclosure is GRANTED IN PART and DENIED IN PART. The Defendant is entitled to a description of the Court's summons enforcement practice. This description is attached hereto as Appendix A. Also, when compiling data from juror qualification forms, in addition to juror number; race; and Hispanic Ethnicity, Defendant may also note (1) whether a summoned prospective juror appeared in response to the summons; and (2) if not, whether the Court sent a follow-up letter to the non-responding prospective juror. In all other respects, the Defendant's Motion for Disclosure is DENIED. In addition, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss is DENIEDAPPENDIX A
Jury Department Procedure Regarding Jurors That Fail to Appear When Summoned Background
Panels are summoned for two-week periods in the Detroit Division. Prospective jurors are drawn from persons qualified from the Master Jury Wheel and issued a summons pursuant to 28 U.S.C. § 1866 (b). For administrative purposes, panels are divided into groups. The summons directs prospective jurors to call in for instructions about their assigned group numbers.
The number and times of scheduled jury trials dictates the number of panels that are drawn. As an example, a recorded message may direct Jury Groups 1-3 to appear on a certain day. On the day prospective jurors appear, they are checked in and their attendance is recorded in the automated Jury Management System.
Jury Management System is a term used by the Administrative Office of the United States Courts to describe the Windows based software application that facilitates all aspects of jury management from the creation and maintenance of a pool, to panel creation and iury selection.
Prospective jurors that call with emergencies on the day they are scheduled to appear are assigned a new group number and moved to that group.
Jurors that fail to appear
After the two-week panel is completed, prospective jurors that failed to appear and did not phone, fax or send in a request for an excuse receive a letter. The letter directs the individual to contact the Jury Department to discuss why he/she failed to appear. The attached letter is the letter sent out by the Court. This is a form letter generated by the Jury Management System provided to the Court by the Administrative Office.
When the prospective juror calls, the individual is asked why he/she failed to appear and depending on the response, given a new date to appear. If there is a reason for the failure to appear that will prevent a future appearance, the prospective juror is given additional instructions to verify the excuse and to either fax or mail in verification.
On that individual's questionnaire, the jury staff places a sticker indicating the failure to appear and whether the individual contacted the Jury Department and if a new reporting date was assigned. If the individual fails to call after a three-week period (approximately), a new date is assigned and a notation is made of the failure to call. See sticker below.
The new date is entered into the Jury Management System and the prospective juror is automatically drawn on the postponed date. A new summons is issued and process starts over again.