The citizen of the United States living in porto Rico cannot there enjoy a right of trial by jury under the federal Constitution, any more than the Porto Rican. It is the locality that is determinative of the application of the Constitution in such matters as judicial procedure, and not the status of the people who live in it.

This Court followed that analysis in Government of the Canal Zone v. Griffith, 5 Cir. 1972, 459 F.2d 1036:

'Appellant's primary contention is that the Fifth Amendment requirement that infamous crimes be tried only upon grand jury indictment should be applied in the territory of the Canal Zone. We disagree. Article IV, 3, of the Constitution empowers Congress to make 'all needful Rules and Regulations respecting the Territory . . .' of the United States. This constitutional provision has been specifically held to authorize Congress to dispense with grand jury indictments in the territories of the United States. See Rivera v. Government of Virgin Islands, 3 Cir., 1967, 375 F.2d 988, in which it was held that Congress could dispense with grand jury indictments in criminal trials in the territory of the Virgin Islands.'

We find no compelling reason to depart from the Griffith rule.

Scott's second issue is the contention that the exclusion of military personnel from jury duty violated his rights to an impartial jury under the Jury Selection and Service Act of 1968, 28 U.S.C. 1861 et seq., as well as the Sixth Amendment to the United States Constitution.

The argument is ingenious but unconvincing. Scott argues that the specific exemption of military personnel from jury duty under 28 U.S.C. 1863(b)(6)4 is permissive rather than mandatory and that the United States District Court must be guided in the exercise of its discretion by the general language of 28 U.S.C. 18615 and 1862.6 Section 1861 declares that the general policy of the United States is to provide for all litigants a jury selected from a 'fair cross section of the community'. Section 1862 provides that no citizen should be excluded from jury service on account of race, color, religion, sex, national origin, or economic status.

We find this construction untenable in that the relevant language of Section 1863(b)(6) merely tracks the language of its predecessor section, 28 U.S.C. 1862 (1966).7 The earlier section was unambiguously mandatory in its exclusion of military personnel. The underlying rationale of the section was that members of such classes as military personnel were better left undisturbed at their usual occupations. The incorporation of old Section 1862 into the 1968 Act indicates a continued congressional belief in the desirability of excluding members of essential occupational classes from the obligation of jury service. More concretely, Scott's argument must fail because it is incompatible with the provision of Section 1863(b)(6) requiring that the jury selection plan 'shall provide for exemption of . . . members in active service in the Armed Forces'.

The appellant also argues that the exclusion of military personnel from jury duty violates his constitutional right to an impartial jury because it removes from eligibility one element of the community and thus prevents the jury from representing 'a fair cross-section of the community'. The mere exclusion of certain occupational classes for reasonable purposes is not constitutionally infirm. Justice Holmes stated the appropriate standard in Rawlins v. Georgia, 1906, 201 U.S. 638, 640, 26 S. Ct. 560, 561, 50 L. Ed. 899 (1906): certain occupations may be categorically excluded from jury duty on the 'bona fide ground that it (is) for the good of the community that their regular work should not be interrupted'. In Peters v. Kiff, 1972, 407 U.S. 493, 500, n. 10, 92 S. Ct. 2163, 33 L. Ed. 2d 83, the Supreme Court noted the continuing vitality of this standard as a qualification on the 'fair cross-section' principle. Because it is the 'primary business of armies and navies to fight or be ready to fight wars should the occasion arise', Parker v. Levy, 1974, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439, 451, the exclusion of military personnel from jury duty is reasonable and for the good of the community under the Rawlins standard.

Finally, Scott argues that the exclusion of servicemen from jury duty in the Canal Zone deprived him of his right to an impartial jury because of the divergence in racial composition between the military contingent in the Canal Zone and the civilian population there. We do not reach the constitutional merits of that argument, however, because the record does not provide us with sufficient data for assessing its factual basis.

The third issue raised on appeal here turns on the refusal of the trial court to grant the jury's request for a transcript of the defendant's testimony to consider during the course of its deliberations. This argument also fails. Broad discretion is placed in the trial court in deciding whether to provide the jury with the transcript of a particular witness's testimony or, alternatively, to have the witness's testimony read back to the jury at its request. United States v. Pollack, 2 Cir. 1973, 474 F.2d 828, 832, United States v. Braxton, 5 Cir. 1969, 417 F.2d 878, United states v. DePalma, 9 Cir. 1969, 414 F.2d 394, 396. Here the trial judge explained to the jury his reasons for denying the request for a transcript. He pointed out that furnishing a part of the transcript created the danger that the jurors might give undue weight to testimony which they would review isolated from its context. He also informed them that there would be some delay before such a transcript could be prepared by the reporter; the court does not keep a running up-to-date transcript of the testimony since it has only one court reporter who is engaged in the transcription of many cases.

We hold that the trial judge did not abuse his discretion in denying the jury's request for a transcript of the defendant's testimony.

Scott's final argument is that he was denied due process and equal protection of the laws in that his trial was presided over by a non-tenured judge sitting as a so-called 'legislative' court rather than a 'constitutional' (Article III) court.⁸

The appellant's argument is one that Congress might well consider. 'If judicial independence is of vital importance in the states, it is hard to see why it is not equally valuable in the territories. The district judges there try persons for crimes against the United States. They hear civil cases in which the United States is a party. They should be able to decide such cases fearlessly and impartially, without being dependent upon the Department of Justice for their continued tenure . . .. The granting to these judges of tenure during good behavior, as was recently done for Puerto Rico, would bring to an end the dubiously-conceived notion that courts of the United States can be other than 'constitutional." Wright, Law of Federal Courts, p. 34 (1970). That is not now the law. In Palmore v. United States, 1973, 411 U.S. 389, 407, 93 S. Ct. 1670, 1681, 36 L. Ed. 2d 342, the Supreme Court rejected a similar argument:

Neither this Court not Congress has read the Constitution as requiring every federal question arising under the federal law, or even every criminal prosecution for violating an Act of Congress to be tried in an Art. III court before a judge enjoying lifetime tenure and protection against salary reduction.

See also United States v. Montanez, 2 Cir. 1967, 371 F.2d 79, cert. denied, 389 U.S. 884, 88 S. Ct. 147, 19 L. Ed. 2d 181.

Congress decides the appropriate system of justice for territories. A system suitable for a territory that is a candidate for statehood may be inappropriate for an area under the jurisdiction of the United States by virtue of a treaty between this country and the Republic of Panama, a treaty that is at this point being renegotiated. As Justice Harlan wrote in Glidden v. Zdanok, 370 U.S. 530, 546-547, 82 S. Ct. 1459, 1471, 8 L. Ed. 2d 671 (1962), 'It would have been . . . dogmatic . . . to fasten on those (territorial) judges a guarantee of tenure that Congress could not put to use and the exigencies of the territories did not require.' Scott's argument runs against the tide of a long line of authority beginning with Chief Justice Marshall's analysis in American Insurance Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242 (U.S.1828). It must therefore be rejected.

The judgment of the district court is affirmed.