Citations
- 165 F. Supp. 359
Full opinion text
GRANT, District Judge.
The Grand Jury indictment in this criminal action charges the defendants with engaging in an “unlawful combination and conspiracy in unreasonable restraint” of gasoline traffic in interstate commerce. 15 U.S.C.A. Section 1.
The indictment charges that beginning on April 25, 1957, the defendants and certain co-conspirators engaged in an unlawful combination and conspiracy in violation of the Sherman Act, that the unlawful combination consisted in an understanding and agreement entered into among said defendants that the defendants and certain co-conspirators would increase the pump price of gasoline at all gasoline service stations operated by the defendants and the eo-conspirators within the defined market area. The indictment alleges that the effect of this activity was the increasing and stabilizing of prices for gasoline sold to consumers within the defined market area thus having the total effect of restraining interstate trade in gasoline.
The defendants filed their Motion “C” and requested in such motion that the Court dismiss the indictment. Defendants contend that an illegally constituted Grand Jury returned the indictment herein in that the Jury Commissioner and the Clerk of this United States District Court failed to follow the provisions set forth in Title 28 U.S.C.A. Section 1864:
“The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing. (Emphasis added.)
“The jury box shall from time to time, be refilled by the clerk of the court, or his deputy, and a jury commissioner, appointed by the court..
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“The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, until the box shall contain at least 300 names or such larger number as the court determines.”
The provisions of the Code set out above are mandatory requirements imposed by the Congress to guide the Clerk and the Jury Commissioner in the selection of prospective jurors. United States v. Brandt, D.C., 139 F.Supp. 362. The intent of the Congress in enacting these provisions is not difficult of ascertainment when we consider the guiding reasons and purpose for such enactments. The right to trial by jury is a precious. American heritage which Americans guard most jealously, in point of fact, our forebearers saw fit to make this guarantee a part of the Bill of Rights. The statutory enactment under consideration merely dictates a procedure which must be followed to the end that no arbitrary or capricious procedure will be involved in the selection of a jury, but such selection is left entirely to the realm of chance.
Mr. Kenneth Lackey, Clerk of the United States District Court for the Northern District of Indiana, and Mr. Walter Pickert, Jury Commissioner of this Northern District, testified in this cause relative to the procedure utilized and employed by the Jury Commission in obtaining names for their jury files; the procedure in checking the qualifications of the prospective jurors, the filing and place of filing of such names and the physical location and manner in which such names were drawn for the Grand Jury panel which returned this present indictment.
The Clerk testified that he had a total of 1500 prospective jurors’ names in a filing cabinet in his Hammond, Indiana, office. These names were acquired over a period of five years. The Clerk was directed by the Honorable Luther M. Swygert, Chief Judge of this Northern District, to draw a panel of jurors in this cause, limiting the number drawn to 50 names.
The defendants allege that the circumstances surrounding the drawing of these names did not amount to a “publicly drawn” body of prospective jurors. Mr. Lackey’s testimony shows that the drawing took place in the Clerk’s office in Hammond. The doors to such office were unlocked at all times herein mentioned and lawyers, court personnel and the public had access to this office. From these circumstances we find that the names drawn were “publicly drawn” within the meaning and contemplation of the statute. Hammerschmidt v. United States, 6 Cir., 287 F. 817.
Defendants contend that the qualifications of the prospective jurors were not checked immediately prior to the drawing by the Commission and some of the available names in the Commission’s files had not been checked for a period of some five years. Title 28 U.S.C.A. Section 1861. The testimony of Mr. Lackey bears out this contention as he testified that 2%