Full opinion text
MEMORANDUM OPINION KEADY, Chief Judge, Sitting by Designation. In this consolidated proceeding the court must deal with motions of various defendants to dismiss indictments on the ground of statutory and constitutional deficiencies in the selection of grand and petit jurors in the Northern District of Georgia. Our present consideration is restricted to procedural issues raised by the government’s challenge to the timeliness of defendants’ motions under the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. and Rule 12, F.R.Crim.P. (a) Real Estate Defendants. On March 20, 1980, the real estate defendants were indicted on several counts of criminal anti-trust violations; at arraignment on the following day, they pled not guilty. On July 17, the magistrate assigned to the case entered an order allowing three weeks following receipt of certain materials from the clerk’s office for these defendants to file motions to dismiss the grand jury indictment because of alleged substantial departures in the administration of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. On August 18, the real estate defendants filed their original motion to dismiss the indictment which charged various deficiencies in the administration of the jury selection plan, to-wit: 1. Erroneous determinations of jury qualifications, exemptions and excuses by individuals delegated authority by the court. A. Wrongful exclusion of qualified potential jurors by court employees. B. Unlawful exclusions from grand jury selection -process by jury clerk. C. Alleged effect of actions of court employees and jury clerk on randomness, objectivity and fair cross-section. 2. Statutory violations based on permanent excuses from jury duty. 3. Failure to operate selection mechanism according to the selection plan. 4. Statutory violations based on failure to revise qualified jury wheels. In addition, defendants raise constitutional claims of race and, later, sex, bias on the part of the district judges in the selection of grand jury forepersons and deputy forepersons. A second constitutional challenge was based on gender discrimination in the granting of excuses from jury duty. Because of the challenge relating to the selection of forepersons, all sitting district judges in the Northern District of Georgia disqualified themselves, and, upon application of Honorable James P. Coleman, Chief Judge of the United States Court of Appeals for the Fifth Circuit, the undersigned judge was designated to hear all motions to dismiss indictments returned by the district’s grand juries. On November 25 this court, from the judge’s home station in Mississippi, issued an order directing that the filing of further amendments, if any were to be made, must be accomplished by December 8. On that date the real estate defendants, without obtaining leave of court, further amended their motion to dismiss the indictment against them on the constitutional grounds that the plan of selection of grand and petit jurors for the Northern District of Georgia impermissibly results in substantial under-representation of specified cognizable groups of citizens within the community, thus failing to reflect a fair cross section of the citizenry, and that this underrepresentation is further accentuated by failures in the clerk’s office to pursue unreturned juror qualification questionnaires for a more accurate determination of the race, sex and economic status of such potential jurors. It is the position of the real estate defendants that their latest amendment, filed December 8, was merely supplementary and added little, if any, new material to their previously filed motion to dismiss; or, in the alternative, that constitutional issues raised under Rule 12, F.R.Crim.P., may not be considered waived for failure to file timely. It is the government’s contention that our November 25 order may not be properly taken as an invitation to real estate defendants to add new theories to an already wide-ranging challenge for which the defendants have heretofore taken nearly six months to prepare. The government asserts that the latest amendment of the defendants threatens to substantially protract these proceedings because the prosecution would require a significant amount of time to prepare to meet the issues raised in the amendment. Real estate defendants, in their latest amendment, challenge the indictment on the following grounds: A. The voter registration lists of the 46 counties of the Northern District, and four divisions thereof, as source lists from which grand and petit jurors are chosen, the process of selection, and the resulting pool are contrary to the Jury Selection Act and the Constitution of the United States, in that cognizable classes of eligible jurors, i. e., blacks, females, blue collar and service workers, and persons having less than a high school education, are being substantially underrepresented in the jury selection process. B. Eligible jurors are being improperly disqualified or excluded based on place of residence, in violation of statutory and constitutional law. C. Insufficient followup is being made by the clerk of court and his deputies as to nonreturned questionnaires, in violation of law. D. Jurors are not drawn, selected or sworn in accordance with the federal statute and constitution. E. There is a substantial failure to comply with the provisions of the Jury Selection Act. F. The indictment in this case was handed down by a grand jury drawn from a jury pool that was not selected in accordance with the statute and the constitution. G. Trial of defendants on this indictment before a jury drawn from the existing pool would violate the defendants’ rights pursuant to federal statute and the constitution. The essence of the principal part of the new grounds alleged by the real estate defendants assails the adequacy of voter registration lists as a proper vehicle for providing a fair cross section of the community in the selection of grand and petit jurors; in other respects the amended motion brings forward certain defects alleged to exist in the administration by court personnel of the district’s jury plan. (b) Garbage Case Defendants. In the companion case, CR 80-136, the prosecution is against the garbage case defendants, who were also indicted on several counts of criminal anti-trust violations. The essential facts of this case follow: On June 5, 1980, defendants pled not guilty to an indictment which was returned against them on May 29, 1980. Also on June 5, the assigned magistrate imposed a deadline of July 11 for the filing of motions. On July 22 the magistrate conducted a hearing in the garbage case in which a lengthy discussion ensued as to the type and character of the motions which the garbage defendants stated they proposed to file to dismiss their indictment. It was acknowledged by all present, including the magistrate, that the results of the ongoing but uncompleted investigation of the real estate defendants were unknown. The magistrate plainly indicated to defense counsel that he disfavored the filing of any motions to quash an indictment not grounded in fact, but nevertheless allowed defense counsel approximately two weeks to supplement the record or file further motions. The garbage defendants filed no motion to dismiss the indictment until they first learned of the real estate defendants’ motion, which was filed on August 18. That marked the first time that the garbage case defendants became privy to any information derived from the investigation of the real estate defendants. On August 28, the garbage case defendants first filed their motion to dismiss the indictment, urging grounds identical to those advanced by the real estate defendants in their August 18 motion. Garbage case defendants, first before the magistrate and now before us, urge that it would have been highly disruptive to the clerk’s office and its personnel for them to have started an investigation parallel to the one in progress by the real estate defendants; and they point out that a dual investigation might well have been a needless waste of time and money, depending upon which conclusions were reached in the real estate defendants’ investigation. These defendants emphasized the fact that the information being gathered by the real estate defendants was kept confidential and that their attorneys refused to disclose results of their ongoing investigation. As previously stated, the garbage case defendants, within ten days after first having positive knowledge of the grounds of the real estate defendants’ challenge, filed their own motion. The several grounds of challenge raised by the real estate defendants, and adopted in toto by the garbage case defendants, were based on detailed in-depth investigation supported by affidavit of Donald Huprich, a law student who was employed by one of the firms representing the real estate defendants. It is evident that the deficiencies set forth in the motions to dismiss relate to subject matter not easily understood, nor likely to be immediately absorbed or comprehended by counsel for the garbage case defendants. As the record reveals, these allegations were made after a three months’ investigation of the impanelment process and a review of every juror qualification questionnaire of persons who were deemed ineligible or who were excused by employees of the court. On September 10 the magistrate ordered a hearing requiring attorneys for the garbage case defendants to show cause why their August 28 filing was not. in violation of the court’s timetable for resolution of pretrial matters. At this hearing the magistrate requested additional authority by way of memoranda or letter briefs filed by government and defense counsel from September 10 through October 14. The magistrate never issued a formal ruling, or complied with Rule 12(e). With matters in this state, counsel for the garbage case defendants and for the real estate defendants commenced to coordinate their efforts. As early as September 24 they met with legal and statistical professionals with a view of employing experts to conduct a compositional study of the grand and petit juries for the entire district. On October 2 an Atlanta-based organization, known as the National Jury Project, was retained to make this study. On October 14, counsel for defendants moved the magistrate for access to additional records. Although the government’s position was that further investigation was unnecessary because of the untimeliness of the garbage case defendants’ original motion filed on August 28, the magistrate nevertheless entered an order granting lead defense counsel, as well as specific individuals connected with the National Jury Project, access to additional relevant records in the clerk of court’s office. On the day the order was entered, actual research of records commenced, and continued without interruption through October and November. As set forth in the uncontested factual averments in the affidavit of Attorney John R. Martin, data was gathered from the voter registration rolls of the 46 counties which comprise the judicial district and from the jury-eligible population of each county. This and other information pertinent to a compositional study was assembled to ascertain whether certain groups in the jury-eligible population were overrepresented or underrepresented using a selection plan, as authorized by the judges of the district, based wholly upon voter registration lists within the 46-county area. The garbage case defendants on December 3 filed an amended motion setting forth identical grounds of constitutional attack raised by the real estate defendants’ previously mentioned December 8 motion. Affidavits setting forth facts developed by the compositional study carried out by the National Jury Project were placed on file by lead defense counsel within a matter of days after the completed data had been delivered to them. Widespread publicity of the jury challenges appeared in the Atlanta newspapers and other media on November 11 and 12, 1980. ISSUES The government seeks to dismiss the original and amended motions of the lead defendants on the ground that they were not timely filed within the requirements of 28 U.S.C. § 1867(a), nor were the motions supported by affidavit setting forth facts as required by § 1867(d) which, if true, would constitute a substantial failure to comply with the Jury Selection Act. A separate and discrete issue is whether the defendants have filed motions which qualify under Rule 12(b)(1) and (2) to raise prior to trial defenses and objections to defects in the institution of the prosecution or defects in the indictment which had to be filed within time limits provided by subsection (c) of Rule 12. The government contends that defendants, by their failure to timely file 12(b) motions, have waived grounds of challenge even though they may be of constitutional proportion, and so no basis exists for the court to grant relief from the waiver. The defendants contend that they did not file 12(b) motions out of time but that even if they did, their motions should nevertheless be heard since they raise substantial constitutional issues, the cases are still in a pretrial state, none of the cases having been calendared for trial on the merits, and a hearing on such motions will neither prejudice the government nor frustrate the orderly calendaring of cases for trial. We first address the statutory requirements imposed by the Jury Selection Act, particularly 28 U.S.C. § 1867(a) and (d), and next consider the parameters of Rule 12 in the context of constitutional challenges to the jury selection process. I. JURY SELECTION ACT The settled law of the Fifth Circuit is that the time provisions of § 1867(a) and (d) must be strictly construed, and that ordinarily failure to challenge the proceedings on the ground of substantial failure to comply with the Act bars a defendant from raising the point. United States v. Merlino, 595 F.2d 1016, 1020 (5 Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed.2d 752 (1980); United States v. Kennedy, 548 F.2d 608, 613 (5 Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977); United States v. Hill, 480 F.Supp. 1223, 1227 (S.D.Fla.1979). It is to be noted that in Merlino and Kennedy, and in United States v. De Alba-Conrado, 481 F.2d 1266 (5 Cir. 1973), challenges were first raised at or after voir dire examination. Nevertheless, it is apparent that the Fifth Circuit in Kennedy hinted that unusual circumstances might constitute a reasonable basis for excusing strict compliance with the seven-day rule. Absent some indication from particular circumstances that counsel could not reasonably have been expected to comply with the procedural prerequisites to a statutory challenge to the jury, the claim under the Act will be forfeited by noncompliance. (Emphasis added). Kennedy, at 613. This statement was alluded to by way of dicta in United States v. Hawkins, 566 F.2d 1006 (5 Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 150, 58 L.Ed.2d 151 (1978), where the court stated, in reference to Kennedy: At the same time, we concluded, based on the express language of the statute, “that Congress left no room for ad hoc review of the usefulness of compliance” with the procedural requirements. Id. Arguably, the statute can be interpreted as impliedly excusing compliance with the timeliness requirement where, as here, a potential irregularity in the jury selection process is known to the trial judge and the prosecutor but is unknown to the defendant. The district court, in Hill, regarded the expressions of Kennedy as justification for holding “it was never the intent of Congress to preclude the filing of a motion such as in the instant case .. ., based on these particular [factual matters presented in Hill] circumstances and on the circumstances [presented in Hill] of counsel .... ” 480 F.Supp. at 1228. Hill adhered to the proposition that the “legislative intent of utilizing § 1867 as a means for discouraging spurious challenges filed for dilatory purposes should be recognized.... [But] in the instant case ... the challenge is neither spurious nor the purpose dilatory.” Id. The court found further from the particular circumstances presented that counsel could not have reasonably been expected to comply with the procedural prerequisites to the statutory challenge under the Act within the seven-day period and that an exception of reasonableness was thus imported to the Act. The plain implications of Kennedy and Hawkins convince us that an exception of reasonableness is recognized to allow laxity under certain circumstances as proper to comply with the statutory requirement. It is to be noted that the Jury Selection Act provides that “[t]he procedures prescribed by [§ 1867] shall be the exclusive means by which a person accused of a Federal crime ... may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.” § 1867(e). Notwithstanding the unequivocal provisions of the Jury Selection Act, it is clear that strict compliance with the time provisions of § 1867 is not jurisdictional in the sense that a district court loses power to act upon a challenge not filed within the seven-day period regardless of the circumstances. We hold that a showing of reasonableness, or exigent or compelling circumstances, authorizes the district court, in the exercise of sound discretion, to entertain a challenge filed out of time. ■ Since compliance with § 1867(a) and (d) is not jurisdictional in the strict sense of the word although the requirements of timeliness must be stringently observed, courts may, upon an adequate showing of reasonableness, or exigent and compelling circumstances, grant motions filed beyond the seven-day period which raise failure to substantially comply with the Jury Selection Act. With respect to the real estate defendants, it is clear that even prior to indictment and arraignment they engaged investigators to make intensive study of the clerk’s jury records, which entailed examining, and closely inspecting, several thousand juror questionnaires. The magistrate assigned to the real estate defendants’ case extended the time for filing of motions to quash their indictment, and their motions were filed within the deadline established. A different situation prevails as to the garbage case and other defendants who made their initial filings alleging substantial departures from the Act on and after August 28. It is evident that prior to August 18 — ten days before the garbage case defendants filed their motion to dismiss — all that the garbage case or other defendants could have made would be no more than a paper record, unsupported by factual averment, inasmuch as they had no knowledge regarding the information developed on behalf of the real estate defendants. Moreover, the circumstances indicate that the garbage case defendants, by withholding possibly unfounded motions, acted reasonably and prudently. Prominently contributing to this conclusion is the fact that the magistrate strongly indicated his disapproval of any motion which might challenge an indictment on the ground of illegalities in grand jury composition unless it was factually supported. The magistrate’s position to this effect is clearly reflected in the transcript of his proceeding. An instance of a judicial officer discouraging utilization of a procedure otherwise available to defense counsel, may, we think, be properly regarded as a circumstance sui generis adequately justifying reasonable delay as a prudent course. It is the function of courts not to ignore realities disclosed by the record, although they may not have occurred with special design or intent to injure but which nevertheless affect counsel in the management of their clients’ cases. Suffice it to say that from all circumstances shown, we hold that equitable considerations present here excuse the garbage case defendants from strict compliance with the time requirements of § 1867(a) and (d), and that they acted with reasonable diligence in raising the statutory challenges. Concerning other defendants in the consolidated case, most of whom are represented by the Atlanta Public Defender’s office, actual notice of the grand jury challenge was received by this office on September 30, and motions were filed soon thereafter. II. RULE 12(b) MOTIONS Initially we judged the December amended motions of all defendants by the stringent time requirements mandated by § 1867 with respect to the filing of motion and supporting affidavit and concluded that all defendants knew or by the exercise of reasonable diligence should have known of the additional grounds of jury challenge at least several months prior to the filing of the December amendments. Therefore, it was our view that the December amendments should be disallowed as untimely under the Jury Selection Act and that Rule 12(b), F.R.Crim.P., did not protect defendants in the late filing of such amendments. Motions to reconsider this aspect of the court’s ruling were timely filed and upon reflection, the court adheres to the view that the December amendments to dismiss filed by the defendants in this case, together with supporting affidavits, did not satisfy the strict requirements of § 1867(a) and (d) and, to that extent, is content to rely upon the reasoning originally stated, i. e., that there was no compelling circumstance or exigent condition which would serve to extend from August 18, or August 28,1980, to December 1980 the time allowed for the filing of additional grounds of challenge, and, if only statutory grounds were alleged, the December amendments to dismiss would be disallowed. Nevertheless, the court has reconsidered the applicability of Rule 12(b) to all cases before it and now concludes that the December amendments which raise constitutional claims of serious import that the procedures for selection of grand and petit jurors in the Northern District of Georgia violate the United States Constitution by failing to provide an adequate cross section of certain cognizable classes of citizens in the community, the claim being that the procedures utilizing the voter registration lists of the several counties comprising the judicial district, result in the underrepresentation, inter alia, of blacks, blue collar and service workers, and persons having less than a high school education, and the over-representation of white collar workers, the employed and persons having a high school education or better, are timely. It is our view that at least to the extent that these claims are of constitutional magnitude, the motions asserting them should be allowed, notwithstanding the lateness of filing. Our ruling in no way alters the trial schedule of the original motions to dismiss, set for January 5, 1981, and only requires the allowance of the garbage case, real estate and other defendants in the consolidated hearing to participate and rely upon constitutional grounds which have been previously bifurcated by this court from the evidentiary hearing to be presently conducted, and for the bifurcation or reservation of constitutional issues to be determined at a later date. A brief analysis of the law relating to Rule 12(b) is in order. As originally adopted in 1946, Rule 12(b)(2) provided that defects and objections based on defects in the institution of the prosecution or in the indictment “may be raised only by motion before trial.” Subsection (b)(3) provided “the motion shall be made before the plea is entered but the court may permit it to be made within a reasonable time thereafter.” The motion had to include all defenses then available to the defendant, and failure to present an objection constituted waiver thereof, although the court for cause shown could grant relief from the waiver. In 1975, Rule 12(b) was amended to provide specifically that five classes of motions must be raised prior to trial, and defenses and objections based on defects in the institution of the prosecution or in the indictment comprise the first two classes. The amended rule provides in subsection (c) for a motion date, to be determined by local rule or by the court as may be set at time of arraignment or as soon thereafter as may be practicable for the hearing. See notes 8 and 9 supra. The amended rule retains the provision that failure by a party to raise objections which must be made prior to trial will operate as a waiver if not filed within the time provided by subsection (c), or prior to any extension thereof made by the court, but the court for cause shown may grant relief from the waiver. It is evident that while any motion attacking the legality of the grand jury composition under amended Rule 12 must be made before trial, the time for filing such motion was somewhat enlarged since it did not have to be filed before the plea or at arraignment but within such time “as soon as practicable” as the court may allow, either initially or by subsequent extension. The purpose of Rule 12 for having pre-trial defenses and objections of this type, even in situations requiring the taking of evidence, to be disposed of in advance of trial and without frustration of court calendars and inconvenience to jurors, witnesses and lawyers, is adequately served by liberal application of timeliness, especially where constitutional rights of defendants are implicated in the motion. Indeed, from briefs of counsel and our own research, we have found no case which so restricts Rule 12(b) motions in the stringent terms mandated by 28 U.S.C. § 1867(a). We therefore hold that the strictures imposed by § 1867(a) and (d), as stated in the statute itself to constitute the exclusive method by which defendants in criminal cases may challenge substantial compliance with the Jury Selection Act, relate to those challenges of defects and irregularities which constitute substantial statutory departures, whether committed by court personnel or by judges in the administration of the jury selection plan or application of the Act, and that § 1867 does not reach or necessarily govern constitutional challenges to the selection of grand and petit jurors. Indeed, to give § 1867 such a broad reading would be to curtail sharply and unduly valued constitutional rights which the decisions of the United States Supreme Court have sought to maintain, short of an unequivocal, unambiguous waiver of right and without the presence of any factual basis for granting relief from waiver of such constitutional claim. The Jury Selection Act, which was adopted March 27, 1968, neither by its terms nor in the legislative history fairly implies that a curtailment of constitutional rights was intended, and we decline to give § 1867(a) and (d) such a strained interpretation. There are cases which hold that a challenge to the jury not made until the day of trial comes too late, whether it is treated as a failure to comply with § 1867(a) or with Rule 12. For example, in United States v. Geelan, 509 F.2d 737 (8 Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975), the Eighth Circuit held a grand jury challenge first made on opening day of trial was disallowed as untimely. It is interesting that the Court nevertheless addressed the merits of the alleged constitutional claim by finding young adults 18-20 years of age do not constitute a cognizable group whose exclusion from the jury rolls amounted to an error of constitutional dimension. Similarly, Brooks v. United States, 416 F.2d 1044 (5 Cir. 1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970), was an appeal from a conviction in the Northern District of Mississippi, in which the Fifth Circuit upheld the trial judge’s discretion denying as untimely defense objections made on opening day of trial to quash the indictment and petit jury venire on the ground that the district’s jury selection system failed to produce an acceptable number of females for jury service. Then-District Judge Claude Clayton, at arraignment on August 3, advised defense counsel that defendant had 15 days within which to file pretrial motions; no challenge was made until September 25, when the case was called for jury trial. Judge Clayton opined that, considering the length of time since arraignment, the motion was filed primarily to obtain a continuance. Many cases, of course, followed the landmark holding in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), a decision on which government counsel has strongly relied here. But Davis is readily distinguishable since the defendant Davis made no attack upon the legality of the grand jury which indicted him until he made a motion to vacate sentence under 28 U.S.C. § 2255, filed almost three years after his conviction. The Court declared that the “necessary effect of the congressional adoption of Rule 12(b)(2) is to provide that a claim once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of ‘cause’ which that Rule requires.” Davis, at 242, 93 S.Ct. 1582-83. The Court emphasized that both the trial and appellate courts had positively determined that the issue of discrimination in grand jury selection had not been raised by the defendant prior to trial. This brings us to whether all defendants in this consolidated hearing have waived the right to raise constitutional challenges contained in their most recent motion. We are still in the pretrial stage, concerned with preliminary matters which attack the procedures used by the court personnel in selecting grand and petit jurors and by judges charged with race and sex bias in the selection of grand jury forepersons and deputy forepersons. No trial date for these cases has been set, and none will have to be continued as a result of these present proceedings. The grounds of challenge appear to be substantial, and may not be characterized as spurious or interposed merely for purposes of delay. Other Rule 12(b) considerations should be placed in correct perspective, especially because they are not seriously disputed, if at all, by the prosecution. The garbage case defendants filed their original motion to dismiss on August 28, 1980. Magistrate Forrester held a show-cause hearing on September 10 as to why the filing of the first motion was not in violation of the magistrate’s timetable for resolving pretrial matters. Counsel for defendants and the government submitted memoranda and letters directed to this issue through October 14. Meanwhile, counsel for garbage case defendants, on September 24, met with legal and statistical experts with a view of employing personnel to make a compositional study of the pertinent jury records. On October 2, the real estate defendants, and perhaps other indictees, employed the National Jury Project to make such study. Since the real estate defendants alone had been previously permitted to view the records, Magistrate Forrester was requested, and on October 16 ordered, defense counsel as well as personnel from the National Jury Project to have access to the relevant records. The government never took a firm position of acceding to or opposing this action of the magistrate. The matter first came to our attention in this state of the record. Although further comment may be unnecessary, we note that several eases have elucidated upon the relief for “cause” exception in Rule 12. Obviously, it is a matter left to the discretion of the judge. Davis, supra, 411 U.S. at 245, 93 S.Ct. at 1584. Usually, this question has arisen in a post-trial setting. In United States v. Williams, 544 F.2d 1215 (4 Cir. 1976), the Fourth Circuit ruled that no “cause” was shown by a defendant who had been indicted for first degree murder on a military reservation and was convicted of second degree murder. After the conviction was affirmed on appeal, the defendant filed a § 2255 motion to vacate sentence, alleging for the first time that blacks had been deliberately excluded from the federal grand jury which indicted and the petit jury which convicted him. The district court dismissed summarily, relying on Davis. The appeals court first reversed, stating that the defendant should have had an opportunity to show “good cause” why he should be excused from Rule 12’s waiver provision. The district court, after an evidentiary hearing, held that defendant had not been prejudiced on account of jury composition since there had been black representation on the petit jury and the jury selection procedures were otherwise proper. The Fourth Circuit agreed with this holding, acknowledging that though actual prejudice may be difficult to demonstrate in most cases, it is consistent with the notion that relief from Rule 12(b)(2) waiver is “an exercise of an extraordinary power” and must be regarded as an exception to the rule. Id. at 1218. See Throgmartin v. United States, 424 F.2d 630 (5 Cir. 1970.) If it were here necessary to articulate relief from a Rule 12(b) waiver based on cause, presumed, if not actual, prejudice must be deemed to exist on the basis of facts, which, if shown to be true, would violate established constitutional principles that legally cognizable groups in the jury-eligible population may not be permissibly excluded from the jury selection process. The present defendants are an array of blacks, indigent whites, and other indictees representing wide-ranging economic status. So if their motion to challenge indictments on constitutional issues were disallowed, the effect of such a ruling would leave the defendants, if their positions are not mistaken, without a remedy for the government’s violation of constitutional rights. See United States v. Jones, 322 F.Supp. 1110 (E.D.Pa.1971). It is accordingly ORDERED That except in one case, CR 80-11 N, defendant James Atchley, the government’s motions to dismiss the original and amended motions (except the December amendments) of the defendants in this consolidated action which challenge the deficiencies of the selection of grand and petit jurors in the Northern District of Georgia on statutory and constitutional grounds are denied and the government’s motion to dismiss Atchley be and the same hereby is sustained. That the government’s motion to dismiss on statutory grounds the amended motions filed in December be and the same hereby is granted, but that, as to the constitutional claims raised in those motions, the government’s motion is denied. That in accordance with rulings made at the pretrial conference, Rule 17.1, F.R. Crim.P., the issues raised by the original motions challenging substantial departures in the application of the Jury Selection Act and the administration of the jury selection plan adopted by the Northern District of Georgia together with the first-raised constitutional claims of racial and sex bias on the part of the sitting judges and the selection of grand jury forepersons and deputy forepersons and gender discrimination in the granting of excuses for jury duty be set for separate hearing in this consolidated action commencing January 5, 1981. III. DISPOSITION OF MERITS In a nine-day evidentiary hearing beginning January 5, 1981, the court received evidence consisting of voluminous exhibits, live testimony, depositions and heard extended oral argument of counsel. All parties having since presented proposed findings of fact and legal memoranda, the court resolves issues submitted at the present hearing by incorporating herein findings of fact and conclusions of law. It is helpful to restate the present contentions of the parties. Defendants’ most prominent contention is that the sitting district judges of the Northern District of Georgia have impermissibly discriminated against blacks and women in the appointment of grand jury forepersons and deputies from January 1970 through February 1980, contrary to the fifth and sixth amendments to the United States Constitution. In addition to this constitutional claim, defendants urge that the indictments against them should be dismissed because of a variety of irregularities or failures resulting in substantial noncompliance with the Jury Selection and Service Act, as well as the district’s plan for the selection and service of grand and petit jurors which was adopted by the district judges and approved by the Reviewing Panel of the Fifth Circuit. The prosecution’s response, initially, is that the offices of grand jury foreperson and deputy in the federal prosecution system have no constitutional significance; but if this position is not well taken, it is claimed that defendants failed to make out a prima facie case of race or sex discrimination; and finally that any prima facie case of such discrimination was effectively rebutted by affirmative and unimpeached evidence offered by the prosecution. As for claims based upon alleged noncompliance with the statute and the district’s plan pertaining to the selection and service of grand and petit jurors, the government argues that court personnel substantially complied with jury selection process mandated by law in all material respects and that the few deviations disclosed by the evidence were minor, only technical in nature, and of de minimus effect, considering the size and scope of the tasks imposed upon a large judicial district and the demonstrated diligence and good faith exhibited by court personnel in administering the plan. We shall briefly set forth the essential, yet largely uncontradicted, evidence regarding the constitutional claim of the foreperson issue before entering into a detailed discussion of the evidence and law concerning the challenges of noncompliance which defendants make based upon the Act and the district’s plan. (a) The grand jury foreperson constitutional claim. The Northern District of Georgia, comprising 46 counties, has four statutorily created divisions: Atlanta, Gainesville, New-nan and Rome. Grand juries are regularly convened at Atlanta; each grand jury ordinarily serves for 18 months, and there is usually more than one grand jury sitting at any particular time. Veniremen, or panel members, are proportionately drawn from the separate qualified wheels at the four divisions. Prior to July 1974, 36 persons— 20 from the Atlanta Division, 8 from the Rome Division, and 4 each from the Gaines-ville and Newnan Divisions — were customarily summoned for grand jury duty. Thereafter, the number of veniremen was increased to 50 — 33 persons are chosen from the Atlanta Division, 4 from Gainesville, 5 from Newnan and 8 from Rome. During the relevant time period, 42 different grand juries for the district were empaneled, each consisting, as provided by law, of no more than 23 members. During this entire period, 43 foreperson appointments were made. The duty of appointing forepersons and deputies was rotated among eight then sitting judges. Of the 43 forepersons selected, only two were black. Two white females were selected foreperson by Judge Freeman. Regarding deputies, there were three black females and 13 white females. The record shows that the aggregate composition of all empaneled grand juries from January 1970 to February 1980 consisted of a total of 948 jurors, of whom 514 (54%) were white males, 288 (30%) were white females, 68 (7%) were black females and 49 (5%) were black males. As regards the composition by sex, 579 (61%) were males and 369 (39%) were females. As for race, 802 (85%) were white, 117 (12%) were black and 29 (3%) were of unknown race. Defendants offered James Michael O’Reilly, an expert social scientist, who testified that he ascertained the jury-eligible population (18 and over) for the 46 counties in the Northern District of Georgia based on the 1970 United States Census, which he adjusted by 1978 Georgia estimates, arriving at a jury-eligible population of 1,409,200 whites and 312,047 blacks. He stated it was recognized by census and other population authorities that the 1970 United States official census, on a nation-wide basis, under-counted whites by 1.9% and blacks by 7.7%. Applying these national rates of undercount to each race, O’Reilly calculated that in 1978 the judicial district had a white jury-eligible population of 1,439,642 and a black jury-eligible population of 340,464 (19.1%). Using the same formula, O’Reilly ascertained for the Atlanta Division alone a white jury-eligible population of 942,258 and a black jury-eligible population of 269,-896 (22.3%). O’Reilly compared the percentage of blacks and whites in the jury-eligible population for the entire district with the percentage of blacks and whites appointed as forepersons. Blacks represented only 4.7% of total foreperson selections (2 blacks out of 43 forepersons). Compared to the 19.1% district black population, O’Reilly determined an absolute disparity of 14.4% and a comparative disparity of 75.7%. Use of chi square (X2) formula yielded .016, which means that there was one chance out of 63 that black underrepresentation as forepersons was the result of chance, and hence black underrepresentation as forepersons was due to some factor other than chance. With respect to sex, O’Reilly compared the district female population (51.2%) with the percentage of female forepersons (4.7%), being 2 females out of 43, and calculated this to be an absolute disparity of 46.5% and a comparative disparity of 90.9%. From a statistical viewpoint, O’Reilly testified that the odds of so few females serving as forepersons as a matter of chance were approximately 1 in 900 million. No calculations were made by O’Reilly as to the blacks and women who were appointed as deputies. O’Reilly’s statistical calculations were essentially unimpeached by Dr. Charles Wang, the prosecution’s expert, who criticized O’Reilly’s statistical methodology yet did not take serious issue with O’Reilly’s conclusions. Defendants also offered “theoretical evidence” through Dr. John McConahay, of Duke University, who testified as to group dynamics. His opinion was that though the influence of a leader of a group of less than ten may be minimal, as the size of the group increases, the influence of the leader is also likely to increase. McConahay drew a distinction between an “imposed leader,” i. e., one appointed from an outside source, and the “emergent leader,” i. e., one who naturally assumes a position of leadership within the group. This expert’s opinion was that the influence of an imposed leader, as one appointed by a judge to be grand jury foreperson, is apt to be greater than that of other members of the grand jury. Since the foreperson might be perceived as having more expertise if chosen by the judge, he opined that a judge-appointed foreperson would likely exercise considerable influence over the grand jury’s deliberations. This expert expressed no opinion as to the role of the deputy foreperson, other than that the position called for less of a leadership role. On cross-examination, McConahay acknowledged that the longer and more frequently the same group meets, the greater is the chance that a natural leader, which he termed a “socio-emotional leader,” might emerge with lessening influence of the appointed leader. He readily conceded that under such circumstances an appointed foreperson might well have less influence over a period of time. This witness acknowledged that he had never served on a federal grand jury, had no knowledge of how often a particular grand jury might meet or how long it remains in session, and knew nothing of the manner in which it transacts business. The defense offered United States District Judge Vining, who was allowed to express his views based upon six years’ experience as district attorney in the Georgia state courts in dealing with state grand juries which selected their own forepersons in accordance with Georgia law. Judge Vining’s observations as to the operation of state grand jurors, selected from a single county, were objected to by the prosecution; the court overruled this objection and admitted the judge’s testimony as a lay opinion under Rule 701 helpful to the court sitting as the trier of fact. Judge Vining, who had observed 40 state grand juries in operation, expressed the view that the foreperson should be a strong person who is not arbitrary yet mindful of the responsibility for directing the session. He characterized the foreperson as a “vital, cog” in the grand jury “to avoid it going off in different directions.” On cross-examination, the judge stated that Georgia grand juries drawn from a single county serve for two- and six-month periods. While he ordinarily withdrew from the grand jury room during deliberations on an indictment, many district attorneys remain throughout. His experience was that the foreperson of a grand jury did not ordinarily cast a vote in indictments but he usually saw that the business was handled with dispatch. For example, Judge Vining recalled one grand jury, in a four-day session, returning 300 indictments. All eight appointing judges testified that in selection of forepersons and deputies they examined and relied upon the juror questionnaires of persons summoned for grand jury duty, and they made no independent investigation of their qualifications. Except in rare instances, the appointing judge did not personally know the individuals he selected as forepersons and deputies. The essence of the judges’ testimony was that in making selections they were guided chiefly by one’s education and character of employment, and that they endeavored to select forepersons and deputies who had apparent qualifications to serve in those capacities. All of the judges categorically denied that considerations of sex or race entered into their selection, and that they particularly did not discriminate against blacks or women in their appointments. Practically all of the judges expressed the view that the foreperson should be one who had the capacity to conduct and preside over meetings of the grand jury, and able to perform duties largely of an administrative character. On cross-examination most judges conceded that persons on the grand juries other than the individuals they chose as forepersons and deputies might have been as well qualified as the forepersons and deputies who were appointed. The foregoing summary of the evidence is adequate to demonstrate that the issue of sex and race discrimination in the selection of forepersons and deputies is indeed a question of major constitutional import, provided the office of a federal grand jury foreperson has constitutional significance. It is a well-settled principle that courts should not decide a case on constitutional grounds when it can be resolved on statutory and general law grounds. This doctrine was emphasized in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936), which stated: The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grpunds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 [29 S.Ct. 451, 454, 53 L.Ed. 753]; Light v. United States, 220 U.S. 523, 538 [31 S.Ct. 485, 488, 55 L.Ed. 570], Id. 297 U.S. at 347, 56 S.Ct. at 483 (Brandéis, J., concurring, joined by Justices Stone, Roberts and Cardozo). The Supreme Court has unswervingly held to this approach in resolving issues based upon both constitutional and statutory grounds. The rule was recently reaffirmed in Califano v. Yamasaki, 442 U.S. 682, 692,99 S.Ct. 2545, 2553, 61 L.Ed.2d 176, 187 (1979), when the Secretary of the Department of Health, Education, and Welfare (HEW), as petitioner, sought to recoup erroneous overpayment made to social security beneficiaries. The recipients sued in federal court on claims that the Secretary’s recoupment procedures were contrary to the recoupment statute, 42 U.S.C. § 404, and the Due Process Clause of the fifth amendment. Holding that the ease was capable of resolution on statutory grounds, Justice Blackmun, writing for the Court, pretermitted consideration of the Due Process claim by stating: A court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question. New York City Transit Authority v. Beazer, 440 U.S. 568, 582-583, and n.22, 99 S.Ct. 1355 [1364 n.22] 59 L.Ed.2d 587 (1979); United States v. CIO, 335 U.S. 106, 110, 68 S.Ct. 1349 [1351] 92 L.Ed. 1849 (1948); Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466 [483], 80 L.Ed. 688 (1936) (concurring opinion). Id. 442 U.S. at 692, 99 S.Ct. at 2553. Since it is our view that the instant cases may be disposed of on grounds based upon the Jury Selection and Service Act, the district’s judicially approved plan, and general law principles, we find it inappropriate to address the constitutional claims that the positions of forepersons and deputy forepersons of federal grand juries have constitutional significance where such grand juries are selected and drawn strictly in accordance with the statute and the district’s plan. Similarly, we pretermit defendants’ alternative constitutional claims that persons over 70 years of age are a “cognizable group,” whose exclusion offends the Constitution and that optional excusáis of females, and not males, having legal custody of children under 10 years of age amount to unconstitutional gender discrimination. (b) Failure to comply with the Jury Selection and Service Act and the District Court’s approved Plan. Our analysis begins with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., which was enacted to effectuate definite policies clearly expressed within the Act itself: It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community and in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. 28 U.S.C. § 1861. The Act’s legislative history amplifies this policy: The purpose of [the Act] is to provide improved judicial machinery for the selection of Federal grand and petit jurors. Its aim is to assure to all litigants that potential jurors will be selected at random from a representative cross section of the community and that all qualified citizens will have the opportunity to be considered for jury service. S.Rep.No.891, 90th Cong., 2nd Sess. 9, reprinted in [1968] U.S.Code Cong. & Ad. News 1792, 1792. In order to achieve the cross-sectionality objective, the Act embodies two important general principles: (1) random selection of juror names from the voter lists of the district or division in which court is held; and (2) determination of juror disqualifications, excuses, exemptions, and exclusions on the basis of objective criteria only. These principles provide the best method for obtaining jury lists that represent a cross section of the relevant community and for establishing an effective bulwark against impermissible forms of discrimination and arbitrariness. Id. at 1793. Random selection “virtually eliminates the possibility of impermissible discrimination and arbitrariness at all stages of the jury selection process, and thereby tends to insure that the jury list will be drawn from a cross section of the community,” while the “objectivity principle” was intended to prohibit the then “widespread current practice of imposing qualifications above and beyond those specified by Congress.” Id. at 1794 and 1795. The Act expressly contemplates that in many respects each district court bears the responsibility of devising and placing into operation a written plan for random selection of grand and petit jurors to be drawn from a fair cross section of the community. We therefore conclude that a violation of the district’s Local Plan constitutes a violation of the Act if the Local Plan’s provision not adhered to effectuates one of the two paramount purposes of the Act. See United States v. Tarnowski, 429 F.Supp. 783, 790 (E.D.Mich.1977), aff’d, 583 F.2d 903 (6 Cir. 1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1238, 59 L.Ed.2d 468 (1979). A remedy is not provided for every violation of the Act or Plan. Rather: Congress recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left room for harmless error by providing that dismissal should lie only when there was a substantial failure to comply with the Act. United States v. Evans, 526 F.2d 701, 705 (5 Cir.) (emphasis original), cert. denied, 429 U.S. 818, 97 S.Ct. 62, 50 L.Ed.2d 78 (1976). The Fifth Circuit has made clear that a determination of whether there has been substantial compliance with the Act “requires that the alleged violations of the Act be weighed against the goals of the statute.” United States v. Smith, 588 F.2d 111, 115 n.22 (5 Cir. 1979); United States v. Carter, 568 F.2d 453, 455 (5 Cir. 1978); United States v. Davis, 546 F.2d 583, 589 (5 Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). Thus, “[o]therwise technical violations of the statute constitute ‘substantial failure to comply’ when they affect the random nature or objectivity of the selection process.” United States v. Kennedy, 548 F.2d 608, 612 (5 Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). Once substantial noncompliance with the Act or Plan has been established, “the court [must] stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictments, whichever is appropriate.” 28 U.S.C. § 1867(d). Furthermore, staying the proceedings or dismissing the indictments is “the exclusive means by which a person accused of a Federal crime .. . may challenge any jury on the ground that such jury was not selected in conformity with [the Act].” Id. § 1867(e). With these principles in mind, we turn to the specific issues of the statutory and plan challenges raised by defendants in the administration of the jury selection process in the Northern District of Georgia. Jury selection challenges in the Northern District of Georgia are not strangers to the Fifth Circuit. United States v. Davis, supra; United States v. Kennedy, supra. In both cases, the Fifth Circuit was critical of the District’s failure to comply with 28 U.S.C. § 1861 et seq., as well as the Local Plan adopted pursuant to the Act. A detailed discussion of the historical implementation utilizing computers may be found in Davis, and is reiterated here only to the extent necessary to understand this opinion. Challenges Based on Randomness: Starting Numbers and Public Notice During orientation on the new automated jury selection system in 1975, the General Services Administration (GSA) instructed the clerk’s office on how to work in conjunction with the system’s computer. Pursuant to the Act and the Local Plan, the district’s procedure utilizes voter registration lists from each county within the district. The GSA program automatically selects names from computer tapes furnished by Georgia counties that themselves utilize automated systems. For those counties that rely on printed or written lists, the clerk’s office is responsible for “red-lining” or checking names to be placed in the master wheel. Names are selected to assure proportionate divisional representation in the master wheel. The GSA then creates a master wheel computer tape in which the entire array of names is alphabetized and each name given a number. The tape also retains divisional identity for each name. The GSA and the clerk’s office properly performed these selections from voter registration lists to master wheel. In mid-1976, work began on the construction of four new qualified wheels, one for each division in the district. The GSA computer was utilized to address standard Juror Qualification Questionnaires, on a form approved by the Administrative Office of the United States, to each of the 59,352 persons whose names were contained on the four master jury wheels. The questionnaires were in turn mailed, with instructions to the addressees that they be completed, signed, dated, and returned to the clerk’s office. Approximately 42,000 questionnaires were returned to the clerk’s office as directed. Upon receipt, the returned questionnaires were screened by the jury clerk, Angela Turner, and two or three assistants to determine whether, under the requirements of the Plan and the Act, they should be included or excluded from the respective qualified wheels. Turner and her assistants performed the qualifying task after being instructed by the clerk of court Ben H. Carter, as to the proper bases for excusal, exemption, and disqualification under the Plan and Act. Carter was thereafter consulted only when specific questions concerning a particular individual arose. Then-Chief Judge Henderson was seldom consulted during the screening process, which took approximately six months. Of the 42,105 returned questionnaires, 11,875 were either disqualified, excluded, exempted, or excused; the remaining 30,230 were qualified by the clerk’s office. Wh.en a prospective juror was qualified, this fact was noted on a computer-punched card that was returned to GSA, which fed the information from card to computer for recording on the master wheel tape. Thus, the qualified wheel consists-of prospective jurors marked “qualified” on the master wheel computer tape; there is no separate tape or computer printout made up of only qualified jurors. When the court requires a panel of qualified jurors, whether grand or petit, it sends an order to the clerk’s office. For grand juries the clerk draws a proportionate number of potential jurors from each division. A grand jury panel usually numbers 50, of which 33 are picked from the Atlanta qualified wheel, 8 from the Rome qualified wheel, 5 from Newnan and 4 from Gaines-ville. However, before the panel may be chosen, an “increment” or “quotient” number must be calculated for each division. An increment equals the number of qualified jurors remaining in a division’s qualified wheel divided by the number of jurors needed from that division. For example, if the Atlanta Division retains 18,000 qualified names, the increment would be 18,000 -=- 33, or 545. The jury clerk must then, at random, draw a “starting” number within the range of one to the increment number, inclusive. For each division the clerk fills out a “transmittal” form, which includes both starting and increment numbers, for delivery to the computer. Because the Northern District of Georgia contains four divisions, the jury clerk must forward four transmittal sheets for each grand jury panel. The GSA picks, as the first name from each divisional wheel, the prospective juror whose position in the .qualified wheel corresponds to the starting number picked by the clerk’s office. Thereafter the computer selects each qualified juror whose position falls one increment number farther down the list from the previous qualified prospective juror selected. For example, choosing from the Atlanta Division, with an increment number of 545 and a starting number of 123, the persons' in