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TEST v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
Argued December 11, 1974.
Decided January 27, 1975.
An unqualified right of a litigant to inspect jury lists held required not only by the plain text of the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. 1867 (f), allowing the parties in a case "to inspect" such lists at all reasonable times during the "preparation" of a motion challenging compliance with jury selection procedures, but also by the Act's overall purpose of insuring "grand and petit juries selected at random from a fair cross section of the community," 28 U.S.C. 1861. Hence, where the District Court denied petitioner's motion, prior to his trial and conviction on a federal drug charge, to inspect the jury lists in connection with his challenge to the grand and petit juries-selection procedures, the Court of Appeals' judgment affirming his conviction is vacated, and the case is remanded so that he may attempt to support his challenge.
486 F.2d 922, vacated and remanded.
Walter L. Gerash argued the cause for petitioner. With him on the brief was Louis M. Fischer.
William L. Patton argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, and Deputy Solicitor General Wallace. *
[ Footnote * ] Sanford Jay Rosen filed a brief for the Mexican American Legal Defense and Educational Fund as amicus curiae.
Petitioner was convicted under 21 U.S.C. 841 (a) (1) for distribution of a hallucinogenic drug commonly known as LSD. Prior to trial he filed a motion to dismiss his [420 U.S. 28, 29] indictment claiming that the master lists 1 from which his grand jury had been, and petit jury would be, selected systematically excluded disproportionate numbers of people with Spanish surnames, students, and blacks. These exclusions, petitioner alleged, violated both his Sixth Amendment right to an impartial jury and the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. 1861 et seq. Attached to this motion was an affidavit by petitioner's counsel stating facts that had been disclosed by testimony at a jury challenge in another case, and which petitioner claimed supported his challenge. Also accompanying the motion was another motion requesting permission to inspect and copy the jury lists "pertaining to the grand and petit juries in the instant indictment." Petitioner asserted that inspection was necessary for discovering evidence to buttress his claims.
The District Court rejected the jury challenge and denied the motion to inspect the lists. Petitioner renewed his claims before the Court of Appeals for the Tenth Circuit, but that court affirmed his conviction without discussing these issues. We granted certiorari to decide whether the Jury Selection and Service Act required that petitioner be permitted to inspect the jury lists. 417 U.S. 967 .
In its brief and oral argument before this Court, the United States has agreed that petitioner was erroneously denied access to the lists and urges us to remand the case. We also agree with petitioner. 2 Section 1867 (f) of the Act, in relevant part, provides:
Since petitioner was denied an opportunity to inspect the jury lists, we vacate the judgment of the Court of Appeals and remand the case to that court with instructions to remand to the District Court so that petitioner may attempt to support his challenge to the jury-selection procedures. We express no views on the merits of that challenge.
[ Footnote 2 ] Petitioner further argues that the affidavit accompanying his motion to inspect established a prima facie case of jury exclusion [420 U.S. 28, 30] thereby entitling him to inspection under 28 U.S.C. 1867 (d). Since we conclude that petitioner had an unqualified right to inspection under 1867 (f) we do not decide whether his counsel's affidavit was sufficient to establish a prima facie case.
[ Footnote 3 ] The statute grants the rights to challenge selection procedures and inspect lists to the United States and the defendant in a criminal case, and to any party in a civil case.