J. Edward Worton, Jos. P. Manners, Miami, Fla., for appellant.

Lloyd G Bates, Jr., Asst. U.S. Atty., Miami, Fla., J. Frank Cunningham, Marshall Tamor Golding, Attys., Dept. of Justice, Washington, D.C., Chester Bedell, Jacksonville, Fla., W. Sanders Gramling, W. G. Ward, William C. Steel, George F. Gilleland, Miami, Fla., (Amicus Curiae) Herbert J. Miller, Jr., Asst. Atty. Gen., Crim. Div., Dept. of Justice, Edith House, U.S. Atty., Southern Dist. of Florida, for appellee.

Before CAMERON and BROWN, Circuit Judges, and WHITEHURST, District judge.

WHITEHURST, District Judge.

The question before us is whether the court below erred in denying appellant's motion to dismiss the indictment on the ground that the grand jury which returned it was summoned and empaneled contrary to law. We hold that it did not.

The grand jury attacked is that drawn in 1960 from the Miami box covering primarily Dade and Broward counties. In Dade County the names were obtained from three sources: (a) the list of male registered voters;1 (b) the list of women who had registered for jury service;2 and Negro citizens recommended by local Negro ministers and business leaders.3 In Dade County, names obtained from the list of voters were chosen from scattered precincts in an effort to avoid choosing as prospective jurors those who may have served within the past few years. A map was kept in the clerk's office and when precincts had been selected in filling the previous box in 1957, those precincts had been marked. The precincts used in the 1959 box (from which the instant jury was drawn) were marked with a contrasting color. No names had been taken from the voter lists in precincts predominantly Negro, but many had doubtless been selected from those precincts among the names furnished by Negro leaders.

In Broward County, a few names of male voters were taken at random from each precinct. In addition, the list of women who had registered for state jury service was used. The box was filled in June and July of 1959 with five thousand names; in December, 1959 it was discovered that no names from the Miami Beach and Coral Gables communities had been selected and an additional one thousand names from those areas were added.

Appellant and amici, coming forward with a multiplex attack on the makeup of the grand jury, argue that (1) selection of names from the state voter registration lists is unlawful per se;4 (2) Negroes were excluded; (3) women were excluded; (4) the names did not represent a cross-section of the community; (5) the names of three hundred qualified persons5 were not present in the box; and (6) the names were not properly placed6 in the box.

Thiel v. Southern Pacific Company, 1946, 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181, lists six groups or classes which may not be excluded as jurors: economical, social, religious, racial, political, geographical. This listing should form the basis of our judgment as we consider the several points of attack.

( 1) The use of voter registration lists is not unlawful per se. Gorin v. United States, 1 Cir., 1963, 313 F.2d 641; United States v. Greenberg, D.C.N.Y.1961, 200 F. Supp. 382; United States v. Van Allen, D.C.N.Y.1962, 208 F. Supp. 331; cf. United States v. Henderson, 7 Cir., 1962, 298 F.2d 522. The use of voter registration lists is unlawful only if such use is a subterfuge to exclude systematically and intentionally members of those groups or classes, inasmuch as those who fail to register are not a cognizable class, Gorin, 313 F.2d at page 644:

'For a variety of reasons we reject the argument that eligible persons who do not register to vote constitute a 'political' group in the community. In the first place the group does not include only the politically inert. It includes also the politically alert who may perhaps have lived for a year or more in the district but not long enough in their ward to be eligible to register to vote. In the second place, the group has no distinct or definable outlines, for in addition to persons who have just moved into a ward, it includes not only the completely apathetic but also those who might register to vote only when interested in a particular election. It includes persons of varying shades of political interest. And in the third place we think the Court in referring to a political group in the Thiel case meant the members of some defined political party or group. 'This does not mean blanket endorsement of jury selection directly or indirectly from voting lists. It means that voting lists may be used as the basis for jury selection unless it appears that in the community there is systematic and intentional exclusion from those lists of a particular economic, social, religious, racial, geographical or political group. When such a showing is made some other basis of selection must be used. Here, however, the appellants have not shown that in Boston any enumerated class is systematically and intentionally discriminated against in registering to vote. Indeed the evidence is quite to the contrary. The appellants' contention fails for lack of any evidence of discrimination in the preparation of the lists of Boston voters. Compare United States v. Hoffa, 196 F. Supp. 25 (S.D.Fla., 1961), with United States v. Greenberg, 200 F. Supp. 382 (S.D.N.Y., 1961).'

The only decision to the contrary is United States v. Hoffa, D.C.Fla., 1961, 196 F. Supp. 25, which is distinguishable on its facts. There, male voter registration lists and lists of women who volunteered for state jury services (who were necessarily registered to vote) were the exclusive sources of names. Such is not the case here. Even assuming that the Gorin case was not correctly decided, this case is not one in which those who failed to register were systematically and intentionally excluded and, even under Hoffa, the grand jury would not be illegal as a matter of law.

( 2) The record indicates that members of the Negro race constitute approximately twelve percent of the population of Dade and Broward counties and that approximately ten percent of the names in the box were those of Negroes. The contention that Negroes were excluded or represented only in a 'token' fashion is untenable.

( 3) Before 1957 one of the disqualifications for federal jury service was that 'He is incompetent to serve as a grand or petit juror by the law of the state in which the district court is held.' 28 U.S.C.A. 1861(4) (repealed). Ballard v. United States7 held that in states in which women were not disqualified to sit on state juries, the systematic and intentional exclusion of women from federal juries was unlawful. The amendment of the federal statute in 1947 merely removed subsection (4) of 28 U.S.C.A. 1861 and in effect made Ballard controlling in all states, whether women were disqualified from state jury service or not. The effect, therefore, is to condemn the systematic and intentional exclusion of women from federal juries. It is clear that women were not excluded as a matter of fact, much less by any system, from the grand jury here in question. The record indicates that three women served on the panel under attack.

( 4) Appellant's main contention is that the grand jury did not represent a cross-section8 of the community. At the most, the notion of a jury as a cross-section of the community is a conceptual9 one. A literal cross-section is neither required nor desired. Those persons who have been convicted of a crime and not pardoned, those not competent in the English language, and those mentally or physically infirm are disqualified under 28 U.S.C.A. 1861. Many people and classes are granted exemptions and exclusions under 28 U.S.C.A. 1862, 1863. In many sections of this country, a Spanish-speaking community is predominant. An English-speaking jury is certainly not a 'cross-section' of such a community.

Nobody contends that to obtain a 'cross-section' it would be required that names be taken at random from the totality of the inhabitants of the area in order to comply with 28 U.S.C.A. 1861. No particular pattern has been prescribed for use by the jury commission in determining the source of jury personnel, however, suggestions are to be found in the report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 409, 470. As Judge Learned Hand so cogently stated:

'It is perhaps in order to say a word about the phrase itself-- 'cross-section,'-- because the defendants so much rely upon it. It means a fair sample; and a sample drawn at random from the whole community will of course represent the distribution of wealth in the community as a whole, as it would represent the distribution of age, height, predisposition to sclerosis, or any other characteristic; but nobody contends that the list must be a sample of the whole community. Minors and the aged are excluded, as are the insane and those of unsound mind, and practically so are all the exempt; a sample at random with any of those included would be different from that which concededly the law may and does prescribe.' United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, 224, affirmed, 1951, 341 U.S. 484, 71 S. Ct. 857, 95 L. Ed. 1137.

The use of names from scattered precincts in a county is not in and of itself unlawful unless it be demonstrated that, in so doing, some cognizable group described in Thiel, supra, is thereby systematically and intentionally excluded. A question of fact is raised here, as is so in most cases. The court below found that there was no such exclusion and we cannot say that such a finding was clearly erroneous. The record clearly indicates, moreover, that the officials here involved made a positive and conscientious effort to choose a fair sample of the community for jury service.

The statutes provide no affirmative requirements of the officials in gathering names for the jury box. See United States v. Greenberg, D.C.N.Y., 1961, 200 F. Supp. 382. In fact, some standard system to be followed was advocated by certain of the senators in the debates over the Civil Rights Act of 1957, and the criticism of the present system advanced was that there was no such requirement. See Congressional Record, Vol. 103, Pt. 10. The Congress did not, however, adopt these arguments and the law as it now stands places the officials under no mandatory or positive commands; they are, on the contrary, controlled by one negative requirement: they may not discriminate,10 directly or indirectly.

( 5) Appellant contends that the statutory requirements were not met in that the names were not drawn 'from a box containing the names of not less than three hundred qualified persons,' 28 U.S.C.A. 1864. This argument rests upon the failure of the officials to determine individually the qualification of each of the six thousand prospective jurors before his or her name was put in the box. If the jury officials had substantial information concerning the eligibility of the prospective jurors, it is not necessary that a conclusive decision be made as to each name. This whole question was dealt with recently by the Court of the Eighth Circuit in Beatrice Foods Co. v. United States, 1963, 312 F.2d 29, and we quote in the margin an extended excerpt from that case beginning at page 35.11

The statute requires that the box contain names of 'not less than three hundred qualified persons.' Most of the names were taken from voter lists and most Florida voters12 are eligible for federal jury service. Presumably the Negro leaders who furnished names were guided by the proper standards. We do not think the court below was clearly in error in holding that there were names of three hundred qualified persons in the box; the evidence is overwhelming that there were.

( 6) The last objection is to the physical manner in which the names were placed in the box. The statute13 provides that the commissioner and clerk 'alternately place one name in the jury box.' It is undisputed that, in this case, the names were placed in the box by alternate handfuls. This is a very technical deviation from the statutory procedure and is no basis for a successful challenge to the grand jury. Hauptman v. United States, 1930, 9 Cir., 43 F.2d 86; Gaughan v. United States, 1927, 8 Cir., 19 F.2d 897; United States v. McClure, D.C.Penn.1933, 4 F. Supp. 668; United States v. Greene, D.C.Ga.1902, 113 F. 683. Presumably, the two officials agreed as to the names and, in that case, any disagreement which the statutory procedure was intended to settle did not arise.

'Jury lists are not conceived out of thin air.' Thiel v. Southern Pacific Co.,14 D.C.Cal.1946, 67 F. Supp. 934, 943. 'Congress has not chosen to establish any uniform system of selecting * * * (jurors) but it has left to each district the adoption of suitable methods to obtain the necessary talesmen.' United States v. Greenberg, supra, 200 F.Supp. at p. 388. We hold that the methods used in selecting the grand jury in question were not unlawful and that there was no systematic and intentional exclusion of any cognizable group or class and that there was substantial technical compliance with the statutes. To hold otherwise would be 'to make of the grand jury a pawn in a technical game instead of respecting it as a great historic instrument of lay inquiry into criminal wrongdoing.' United States v. Johnson, 1943, 319 U.S. 503, 512, 63 S. Ct. 1233, 1237-1238, 87 L. Ed. 1546.

The judgment appealed from is right and it is

Affirmed.

JOHN R. BROWN, Circuit Judge (dissenting).

In the face of the very persuasive opinion of Judge Whitehurst, I am reluctant to differ. Nevertheless, I think the practice of including (a) only those males who have registered to vote and (b) only the females who have volunteered for jury service does not meet the requirements, 28 U.S.C.A., 1861, of a constitutionally empaneled Grand Jury. I therefore align myself with Judge Lieb's opinion in United States v. Hoffa, S.D.Fla., 1961, 196 F. Supp. 25, and respectfully dissent from the present opinion of this Court.