Cronn v. United States Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    No

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1983

DONALD LORRIN CRONN,
Petitioner

V.
UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

ARCH C. McCOLL, III 
BRUNER, McCOLL, ENGLAND, 

McCOLLOCH & McCURLEY 
The Katy Building, Suite 302 
701 Commerce Street 
Dallas, Texas 75202 
(214) 744-5044

DAVID W. COODY COUNSEL OF RECORD
Of Counsel FOR PETITIONER



QUESTIONS PRESENTED FOR REVIEW
I.

DOES A FEDERAL CRIMINAL 
DEFENDANT, WHO IS A WHITE 
MALE, HAVE STANDING TO CHAL­
LENGE THE PURPOSEFUL DIS­
CRIMINATORY EXCLUSION OF 
BLACKS, WOMEN AND HISPANICS 
FROM THE POSITION OF GRAND 
JURY FOREMAN?

II .
IS INVIDIOUS DISCRIMINATION 
IN THE SELECTION OF FEDERAL 
GRAND JURY FOREMEN A SIGNIF­
ICANT VIOLATION OF THE DUE 
PROCESS CLAUSE OF THE FIFTH 
AMENDMENT TO THE UNITED 
STATES CONSTITUTION RE­
QUIRING DISMISSAL OF AN
INDICTMENT?



TABLE OF CONTENTS
Page

1. TABLE OF AUTHORITIES ii
2. ADDRESS TO THE COURT 1
3. DECISIONS BELOW 2
4. JURISDICTION 2
5. CONSTITUTIONAL PROVISIONS

AND RULES INVOLVED 3
6 . STATEMENT OF THE CASE 4
7. REASONS FOR REVIEW

I. STANDING 8
II. CONSTITUTIONAL SIGNIFI­

CANCE OF FEDERAL GRAND
JURY FOREMEN 14

8. CONCLUSION 21
9. APPENDIX 1-A

l



TABLE OF AUTHORITIES

CASES
Guice v. Fortenberry,
661 F.2d 496 (5th Cir. 1981)___ 18
Peters v. Kiff, 407 U.S 6,7,8,9,
493 ( 1972 )..................... 11,12,13,14
Rose v. Mitchell, 17,18
443 U.S. 545 ( 1 9 7 9 1 9 , 2 0
United States v. Abell,
55 2 F.Supp . 316
D. Me. 1982 )  ............ .10,17
United States v. Breland,
522 F.Supp. 468
(N.D. Ga. 1981).................10,17
United States v. Carbrera- 
Sarmiento, 533 F.Supp. 799,
(S.D. Fla. 1982 )..............10
United States v. Coletta,
682 F .2d 820 (9th Cir.
1982)  .......................... 10,16
United States v, Cronn,

F.2d (5th Cir., Sept.
28 , 1983 )... . ..................2
United States v. Cronn,
559 F. Supp. 124
(N.D. Tex. 1982 )...............  2,5
United States v. Cross,
708 F.2d 631 (11th Cir. 1983) ...9,15,18,19

ii



9,15,18
United States v. Hobby,
702 F.2d 466
( 4th Cir . 1983)...... ...... .9,15,18
United States v. Holman,
680 F.2d 1340 (11th Cir. 
1983)..... .................. .9
United States v. Holman,
510 F.Supp. 1175
(N.D. Fla. 1981)............ .20
United States v. Jenison,
485 F.Supp. 655
(S.D. Fla. 1979)........... -.10,11,17,20
United States v. Layton,
519 F.Supp. 946 (N.D.
Cal. 1981)................. ..10,11,17
United States v. Manbeck,
514 F.Supp. 141
(D.S.C. 1981)..... ...... . . ,.11,17
United States v. Musto,
540 F. Supp. 346
(D.N.J. 1982)................10,17
United States v. Perez- 
Hernandez, 672 F.2d 1380 
(11th Cir . 1982 )..... ...... ..9,15

CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const, amend. V. 3,5,11,12

.13,16
18 U.S.C. §371............... 4
18 U.S.C. §1341.............. 4

ii i



18 U.S.C. §1343  ..... . .4
28 U.S.C. §1254(1) ........... 3
Fed. R . App . P . ,
Rule 41(b).............. ....3
Fed. R. Crim. P.,
Rule 6(c).................... 3,4

IV



No

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1983

DONALD LORRIN CRONN,
Petitioner

V.
UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FIFTH CIRCUIT

TO THE HONORABLE COURT:

COMES NOW the Petitioner, DONALD 
LORRIN CRONN, who petitions this 
Honorable Court to issue a writ of cer­
tiorari to review the judgment of the

1



United States Court of Appeals for the 
Fifth Circuit and would show the Court as 
follows:

DECISIONS BELOW
The opinion in this case by the

United States Court of Appeals for the
Fifth Circuit is found in United States
v. Cronn,  F . 2d____ (5 th Ci r ., Sept.
28, 1983) (not yet reported). The
district court opinion is reported in 
United States v. Cronn, 559 F. Supp. 124 
(N.D. Tex. 1982). Both opinions and the 
judgment are included in the attached 
Appendix (hereinafter App.).

JURISDICTION
On September 28, 1983, the United

States Court of Appeals for the Fifth 
Circuit issued a judgment of affirmance 
in this case. (App., p. 39-A) Peti-

2



tioner's Petition for Rehearing and 
Suggestion for Rehearing Sn Banc were 
denied on October 27, 1983, and
Petitioner's motion for a stay of the 
mandate was granted by the court of 
appeals until November 26, 1983, pursuant 
to Fed. R. App. P., Rule 41(b). (App., 
pp. 41-A - 45-A.) The jurisdiction of
this Court to review the judgment of the 
Fifth Circuit is provided by 28 U.S.C. 
§1254(1).

CONSTITUTIONAL PROVISIONS 
AND RULES INVOLVED

(A) U.S. Const, amend. V provides in per­
tinent part:

No person shall... be 
deprived of life, liberty, 
or property, without due 
process of law....

(B) Fed. R. Crim. P., Rule 6(c) provides:

3



Foreman and Deputy Fore­
man . The Court shall ap­
point one of the jurors to 
be foreman and another to be 
deputy foreman. The foreman 
shall have power to admi­
nister oaths and affir­
mations and shall sign all 
indictments. He or another 
juror designated by him 
shall keep a record of the 
number of jurors concurring 
in the finding of every 
indictment and shall file 
the record with the clerk of 
the court, but the record 
shall not be made public 
except on order of the 
court. During the absence 
of the foreman, the deputy 
foreman shall act as fore­
man .

STATFMFNT OF THE CASE 
Petitioner was convicted in the 

District Court for the Northern District 
of Texas on one count of conspiracy (18 
U.S.C. §371), three counts of wire fraud 
(18 U.S.C. §1343) and four counts of mail 
fraud (18 U.S.C. §1341). Prior to trial 
he moved to have his indictment dismissed

4



because of the discriminatory selection of 
grand jury foremen. In that motion 
Petitioner alleged that blacks, women and 
Hispanics were systematically and discri- 
minatorily excluded from the office of 
grand jury foreman in the Northern 
District of Texas, which exclusion vio­
lated the Due Process Clause of the Fifth 
Amendment. To support these allegations, 
Petitioner also moved to inspect the grand 
jury selection records which would provide 
evidence as to the race and gender of 
grand jury foremen for use in establishing 
a prima facie case of discriminatory 
selection .

In an opinion issued August 4, 1983, 
the district court denied Petitioner's 
motion to inspect the grand jury selection 
records. United States v. Cronn, 559 F.

5



Supp. 124 (N.D. Tex. 1982). (App., p. 
29-A.) The court reasoned that Petitioner 
was entitled to inspect the records only 
if any demonstrated discrimination in 
selecting the grand jury foreman would 
require dismissal of the indictment. 
Initially, the district court held that 
pursuant to Peters v. Kiff, 407 U.S. 49 3 
(1972), Petitioner had standing to chal­
lenge the discriminatory exclusion of 
minority groups from the position of grand 
jury foreman although Petitioner was a 
white male. However, the court then found 
that discriminatory selection of federal 
grand jury foremen was constitutionally 
insignificant, and even if proven, such 
discrimination would not warrant the 
dismissal of Petitioner's indictment.

6



Following Petitioner's conviction, he 
appealed to the United States Court of 
Appeals for the Fifth Circuit raising, 
among other issues, the incorrectness of 
the district court's ruling on the consti­
tutional significance of the federal fore­
man. The Government joined issue on the 
question of significance, and the case was 
orally argued. Neither in the district 
court nor on appeal did the Government 
challenge Petitioner's standing to make 
this attack. Furthermore, when the
question of standing was raised by the 
district court at a pre-trial hearing, 
Petitioner explicitly relied upon Peters 
v. Kiff, 407 U.S. 493 (1972) as the basis 
for his claims. (App., pp. 46-A - 47-A.) 
Despite these facts, a panel of the Fifth 
Circuit on September 28, 1983, held that

7



Petitioner had not relied upon Peters, but
rather had made an equal protection claim 
for which he did not have standing. 
(App., p. 1.) Petitioner's Petition for 
Rehearing and Suggestion for Rehearing En 
Banc were denied by the Fifth Circuit on 
October 27, 1983. (App., p. 41-A.) It is 
this adverse judgment of which Petitioner 
seeks review by this Court.

REASONS FOR REVIEW
I.

STANDING
The issue of whether a white male has 

standing to seek dismissal of his indict­
ment on the basis of discriminatory exclu­
sion of minorities from the office of 
grand jury foreman has caused a signifi­
cant split among the federal courts of 
appeals. The holding by the Fifth Circuit

8



below that Peters v. Kiff, 407 U.S. 49 3
(1972), did not provide standing for 
Petitioner's attack on the unconstitu­
tional selection of federal grand jury 
foremen is in direct conflict with deci­
sions by the Eleventh Circuit in United 
States v. Perez-Hernandez, 672 F.2d 1380
(11th Cir. 1982), United States v. 
Holman, 680 F.2d 1340 ( 11th Cir. 1983 ),
and United States v. Cross, 708 F . 2d 631 
(11th Cir. 1983). The Fifth Circuit 
recognized that it was creating such a 
split in the Circuits. (App., p. 9-A. ) 
The decision below also implicitly 
conflicts with the Fourth Circuit's opi­
nion in United States v. Hobby, 702 F. 2d 
466 (1983), cert, pending, wherein that
court decided the merits of the attack by 
the appellants, who were male, on the

9



exclusion of women from the foreman's
position. The decision in United States 
v. Coletta, 682 F.2d 820 (9th Cir. 1982), 
in harmony with the decision herein by the 
Fifth Circuit, adds to the conflict which 
now involves differing opinions in four 
circuits. This conflict should be
resolved.

The issue of standing in this kind of 
case is an important one which should be 
settled by this Court. Attacks on the 
discriminatory selection of grand jury 
foremen have often been made in the courts 
below. See, e,g., United States v. Abell, 
552 F.Supp. 316 (D. Me. 1982); United
States v. Musto, 540 F. Supp. 346 (D.N.J. 
1982); United States v. Carbrera- 
Sarmiento, 533 F.Supp. 799, (S.D. Fla.
1982); United States v. Breland, 522

10



F.Supp. 468 (N.D. Ga, 1981); United States
v. Layton, 519 F. Supp. 946 (N.D. Cal.
1981) ; United States v. Manbeck, 514 
F.Supp. 141 (D.S.C. 1981); United States
v. Jenison, 48 5 F.Supp. 655 (S.D. Fla.
1979). It is likely that such challenges 
will continue. Because of the uncertainty 
in the application of the Peters v. Kiff
doctrine, standing will be a major 
stumbling block unless resolved by this 
Court.

The decision in Petitioner's case by 
the Fifth Circuit takes too narrow a view 
of the standing allowed by Peters v.
Kiff. Petitioner's factual allegations, 
if proven, clearly demonstrated arbitrary 
exclusion of women, blacks and Hispanics 
from the position of grand jury foreman in 
violation of the Due Process Clause of the

11



Fifth Amendment. The court below held
that the failure to denominate the attack 
as a "due process" violation of the Due 
Process Clause took Petitioner outside the 
coverage of Peters even though Petitioner 
relied upon Peters as the basis for stand­
ing the only time such a question was 
raised. (App., pp. 46-A - 47-A.) To hold 
that Petitioner should be denied standing 
where the facts he alleges otherwise show 
a violation of the Fifth Amendment disre­
gards the reasons for the decision in 
Peters. There, in the opinion by Justice 
Marshall it was stated:

In light of the great poten­
tial for harm latent in an 
unconstitutional jury- 
selection system, and the 
strong interest of the cri­
minal defendant in avoiding 
that harm, any doubt should 
be resolved in favor of 
giving the opportunity for

12



challenging the jury to too 
many defendants, rather than 
giving it to too few.

Peters, 407 U.S. at 504 (footnote 
omitted). Similar policy considerations 
were involved in Justice White's opinion 
in Peters, which was based upon statutory 
grounds. J[d. at 506-07 .

The rigid compartmentalization of 
Petitioner's claim as only an "equal 
protection" claim for which he supposedly 
lacked standing, even though alleged as a 
violation of the Fifth Amendment's Due 
Process Clause, calls into question the 
proper scope of standing under Peters, and 
also whether standing should have been 
dispensed in such a niggardly manner as it 
was in the court below. The courts of 
appeals have struggled with this question, 
reaching conflicting results. In order to

13



resolve this conflict and set out the 
limits on standing pursuant to Peters v. 
Kif f , this court should grant Petitioner's 
request for a writ of certiorari to the 
United States Court of Appeals for the 
Fifth Circuit.

II.
CONSTITUTIONAL SIGNIFICANCE OF 

FEDERAL GRAND JURY FOREMEN 
The issue briefed and argued by both 

parties in the court of appeals below, but 
not addressed because of its standing 
decision, was whether the district court 
erred in holding that discrimination in 
selecting grand jury foremen was constitu­
tionally insignificant. Because it was 
insignificant, the district court 
reasoned, Petitioner's indictment could 
not be dismissed even if such discrimina-

14



tion were conclusively proven. (App., p. 
38-A.) Assuming the opinion below on 
standing was wrong, the district court's 
ruling on the constitutional significance 
of the federal foreman must be addressed.

The significance question, like the 
standing question, has caused a direct 
split in the circuits. The Eleventh Cir­
cuit has consistently held that systematic 
exclusion of groups from the position of 
grand jury foreman is constitutionally 
important. See, United States v. Cross, 
708 F . 2d 631 (11th Cir. 1983 ); United 
States v. Perez-Hernandez, 672 F.2d 1380 
(11th Cir. 1982). In contrast the Fourth 
Circuit has held in United States v. 
Hobby, 702 F.2d 466 (4th Cir. 1983), cert, 
pending, that the federal grand jury 
foreman's duties are only ministerial, and

15



thus, discriminatory selection of the 
foreman does not affect the rights of 
criminal defendants. Hobby is currently 
pending a decision in this Court on a 
petition for certiorari raising this 
question of significance. In addition, 
the Ninth Circuit's decision in United 
States v. Coletta, 682 F.2d 820 (9th Cir. 
1982) also conflicts with the Eleventh 
Circuit decisions in holding that discri­
minatory selection of federal foremen does 
not have such a significant unfair impact 
so as to violate the due process require­
ments of the Fifth Amendment. This uncer­
tainty concerning a defendant's rights 
against discrimination in the federal jury 
system should be eliminated by review of 
the problem by this Court.

16



Like the standing question, the signi­
ficance question has also been the source 
of substantial litigation in the district 
courts. See, e .g., United States v. 
Abell, 552 F.Supp. 315 (D.Me. 1982); 
United States v. Musto, 540 F.Supp. 346 
(D.N.J. 1982); United States v. Carbrera-
Sarmiento, 533 F.Supp. 799 (S.D. Fla.
1982); United States v. Breland, 522
F.Supp. 468 (N.D. Ga. 1981); United States 
v. Layton, 519 F.Supp. 946 (N.D. Cal. 
1981); United States v. Manbeck, 514
F.Supp. 141 (D.S.C. 1981); United States
v_. Jenison, 485 F.Supp. 655 (S.D. Fla.
1979). These cases illustrate the recur­
rent nature of the problem of discrimina­
tory grand jury foreman selection and the 
proper remedy for such discrimination.

17



Rose v. Mitchell, 443 U.S. 545 (1979 )
provided the main basis for these attacks. 
In Rose, this Court assumed, without hold­
ing, that the discriminatory selection of 
the Tennessee grand jury foreman required 
dismissal of the indictment. This assump­
tion was adopted as law in Guice v. 
Fortenberry, 651 F.2d 496 ( 5th Cir.
1981)(en banc) which involved Louisiana 
grand jury foremen. Some courts, most 
notably the Fourth circuit in United 
States v. Hobby, 702 F.2d 466 ( 4th Cir.
1983), have held that discrimination 
involving federal grand jury foremen is 
insignificant because he does not have as 
much power as the state foreman in Rose 
and Guice.

The Eleventh Circuit has rejected this 
distinction, and in United States v.

18



Cross, 708 F.2d 631 (11th Cir. 1983), pro­
vided a well-reasoned analysis of the
foreman significance issue. That court 
found that discriminatory selection of 
federal grand jury foremen struck at the 
same values recognized in Rose v. 
Mitchell, 443 D.S. 545, 556 (1979), that 
is the integrity of the judicial process 
and the basic concepts of a democratic 
society. Three reasons were given by the 
court in Cross to support the conclusion 
that this type of discrimination is signi­
ficant enough to require dismissal of a 
federal indictment. First, as a matter of 
law, the federal foreman has many duties 
and responsibilities, for example, contact 
with the district judge and the United 
States Attorney, temporary excusal of 
grand jurors, and consultation regarding

19



contempt proceedings against recalcitrant 
witnesses. These duties are of such an 
extent and nature to render the foreman's 
position important. This importance is 
also demonstrated by judges who seek out 
persons who have strong leadership quali­
ties, educational backgrounds, occupa­
tional experience and management ability 
for selection as foreman. See, United 
States v. Holman, 510 F.Supp. 1175, 1180 
(N.D. Fla. 1981); United States v, 
Jenison, 485 F. Supp. at 665-66. The 
second supporting reason noted by the 
court of appeals was that appointment as 
foreman could endow a person with enhanced 
influence in decision-making. Third, it 
was unseemly to allow challenges to the 
discriminatory selection of state grand

20



jury foremen while ignoring the same type 
of discrimination in the federal system.

In Rose v. Mitchell and the many cases 
that preceded it, this Court has con­
sistently recognized the insidious nature 
of discrimination and has required that 
convictions be set aside even though there 
was no showing of harm to a particular 
defendant. The application of this policy 
to foreman discrimination has split the 
courts of appeals and raised doubt as to 
the remedies available for such discrimi­
nation. Because this is an issue involv­
ing considerable litigation, and as in 
other discrimination cases, is one of 
importance to society, this Court should 
grant a petition for writ of certiorari to 
review the ruling below by the district 
court that discriminatory selection of

21



federal grand jury foremen is insignifi­
cant .

CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Peti­

tioner, DONALD LORRIN CRONN, prays that 
this Court grant his petition for a writ 
of certiorari to review the judgment of 
the United States Court of Appeals for the 
Fifth Circuit.

Respectfully submitted,
ARCH C. McCOLL, III 
BRUNER, McCOLL, ENGLAND, 

McCOLLOCH & McCURLEY 
The Katy Building, Suite 302 
701 Commerce Street 
Dallas/OTexas 75202

22



No

IN THE
SUPREME COURT OP THE UNITED STATES 

OCTOBER TERM, 1983

DONALD LORRIN CRONN,
Petitioner

V.
UNITED STATES OF AMERICA,

Respondent

APPENDIX

ARCH C. McCOLL, III 
BRUNER, McCOLL, ENGLAND, 

McCOLLOCH & McCURLEY 
The Katy Building, Suite 302 
701 Commerce Street 
Dallas, Texas 75202 
(214) 744-5044

DAVID W. COODY COUNSEL OF RECORD
Of Counsel FOR PETITIONER



United States of America, 
Plaintiff-Appellee,

v .
Donald Lorrin Cronn, 
Defendant-Appellant.

No. 82-1614.
United States Court of Appeals,

Fifth Circuit.
Sept. 28, 1983.

Before CLARK, Chief Judge, GEE and 
POLITZ, Circuit Judges.

GEE, Circuit Judge:
Today's issue of significance is 

whether a criminal conviction in an 
otherwise fair trial 1 must be reversed 
on a ground far removed from guilt or 
innocence of the accused.* Defendant 
Cronn, an Anglo male, asserts that his

^We so conclude as to Cronn's other 
points for reversal, discussed below 
with the brevity that they merit.

*In accordance with Court policy, 
this opinion, being one which ini­
tiates conflict with the rule declared 
in another circuit, was circulated

1 A



conviction of mail fraud and related 
offenses must be overturned because 
females and members of racial minorities 
may have been underrepresented in tenure 
as grand jury foremen at the time of his 
indictment. This circumstance, which, in 
the posture of the appeal, we must assume 
existed, is said to have denied him his 
Fifth Amendment right to equal protection 
of the laws. No contention is made that 
the grand jury itself, from which the 
court selected a foreman, was improperly 
constituted.

The district court, 559 F.Supp. 124, 
denied Cronn's motion for access to grand 
jury selection records, thus aborting his

before release to the entire Court, 
and rehearing en banc was not voted by 
a majority of the judges in active 
service.

2 A



attempt to establish underrepresentation. 
Although the court concluded that despite 
his non-minority status Cronn possesses 
standing to raise the complaint, it 
determined as well that "the position of 
a federal grand jury foreman is not 
constitutionally significant." In so 
doing, it distinguished our decision in 
Guice v. Fortenberry, 661 F.2d 496 ( 5th 
Cir.1981) (en banc), and that of the 
Supreme Court in Rose v. Mitchell, 443 
U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 
(1979), both concerned with foremen of 
state grand juries, on two grounds: that 
the federal foreman was selected from 
among the members of the already- 
constituted (and properly so) grand jury, 
rather than added to them as in Rose and 
Guice; and that his powers, unlike the

3 A



greater ones of the state foremen, were 
merely ministerial. We affirm, but on a 
narrow and basic ground— one that allows 
us to leave decision of these broad and 
knotty issues for another day.2

From the presentation of the initial 
motion to the submission of the briefs 
and argument of the case before us, 
plaintiff has specifically denominated 
his claim as one arising under "the equal 
protection component of the Fifth Amend­
ment to the United States Constitution." 
(App.Br. p. 7). In none of his briefs to 
this court is any other due process con­
tention made. Nor was any made in his 
district court filings or discussed in 
the opinion of that court. Indeed, the 
only time the words "due process" appear

2 A conflict already exists within 
the circuits about whether the posi­
tion of federal foreman is constitu­
tionally significant. Compare United 
States v. Hobby, 702 F.2d 466 (4th

4 A



in any brief filed with us by Cronn is in 
an observation that, as in the case of a 
state defendant relying on the explicit 
Equal Protection Clause of the Fourteenth 
Amendment, "[t]his equal protection 
attack is also available to federal 
defendants through the Due Process Clause 
of the Fifth Amendment." (App.Br. p. 7).

It is therefore plain that Cronn has 
elected, for whatever reasons, to advance 
no broader or additional due process 
challenge and to rely solely on the equal 
protection component. Based on the ana­
lysis below we determine that, for pur­
poses of standing, challenges based on 
equal protection and due process analyses

Footnote 2 continued;
Cir.1983) (not so), with United 
States v. Perez-Hernandez, 672 F.2d 
1380 (11th Cir.1982), and United 
States v. Cross, 708 F.2d 631 (11th 
Cir.1983) (significant).

5 A



are distinct. Because Cronn has raised
only an equal protection challenge, it is 
in this context alone that we review his 
standing. We cannot and will not con­
sider a contention presented neither to 
the trial court nor to us. 3

The district court, however, failed to 
distinguish between due process and equal 
protection challenges to grand jury com­
position, and held that this plaintiff 
had standing. In so doing, the court re­
lied upon a recent case in the Eleventh 
Circuit. United States v. Perez- 
Hernandez, 672 F.2d 1380 . We set out 
the reasoning of Perez in this issue in 
full:

Before addressing the merits 
of appellant's case, we must 
first discuss a preliminary 
question of standing. Appellant 
is a male of hispanic descent 
who claims a denial of equal

•̂ We note especially that we do not 
deal here with a motion for more defi­
nite statement, with an issue tried as

6 - A



protection because blacks and 
women have been excluded from 
serving as grand jury foremen. 
Conflicting language in several 
recent Supreme Court cases has 
clouded his right to assert this 
claim. In Peters v. Kiff, 407 
U.S. [493] at 498, 92 S.Ct. 
[2163] at 2166 [33 L.Ed.2d 83], 
the opinion of the Court 
discussed this question in an 
equal protection context and 
concluded that "when a grand or 
petit jury has been selected on 
an impermissible basis, the 
existence of a constitutional 
violation does not depend on the 
circumstances of the person 
making the claim." Three years 
later, the Court reaffirmed this 
holding, although in the context 
of a Sixth Amendment claim. 
Taylor v. Louisiana, 419 U.S. 
[522], 95 S.Ct. [692] at 695 [42 
L.Ed.2d 690]. In 1977, however, 
the Court used significantly 
different language to address 
the same question: "thus, in 
order to show that an equal pro­
tection violation has occurred 
in the context of grand jury 
selections, the defendant must

Footnote 3 continued: 
though pled, or with any other tech­
nical matter of pleading. Instead, we 
view a potential contention that was 
never advanced at all, neither "pled" 
nor "tried," either here or to the 
district court.

7 A



show that the procedure employed 
resulted in substantial under­
representation of his race or of 
the identifiable group to which 
he belongs." Castaneda v.
Partida, 430 U.S. 482, 494 , 97
S.Ct. 1272, 1280, 51 L.Ed.2d 498 
(1977) (emphasis added). In 
Rose v. Mitchell, 443 U.S. 545, 
99 S.Ct. 2993, 61 L.Ed.2d 739
(1979), the opinion of the Court 
at first seems to support the 
holding in Peters v. Kiff: 
"[T]he Court has recognized that 
a criminal defendant's right to 
equal protection of the laws has 
been denied when he is indicted 
by a grand jury from which mem­
bers of a racial group purpose­
fully have been excluded." Rose 
v. Mitchell, 443 U.S. at 556, 
99 S.Ct. at 3000 . Later in the 
opinion, however, the trouble­
some language from Castaneda v. 
Partida is quoted with approval. 
Id. [430 U.S.] at 565, 99 S.Ct. 
at 3005. Despite this apparent 
conflict, we conclude that 
appellant is not precluded from 
bringing this claim even though 
he is not black or female. The 
holding in Peters v. Kiff is 
clear and unambigous and has 
never been expressly overruled. 
On the other hand, the disputed 
language in Castaneda v. Partida 
possibly refers only to the par­
ticular defendants involved in

8 - A



that case. Without more direc­
tion from the Supreme Court, we 
cannot hold otherwise.

672 F.2d at 1385-86 (footnotes omitted). 
Despite our customary deference to our 
sister circuit, we are unable to concur 
in this well-stated reasoning.

At the onset we conclude that Peters 
v. Kiff, insofar as it discusses the 
right of a white defendant not to have 
black citizens systematically excluded 
from his grand or petit jury, does not 
rest on constitutional equal protection 
grounds. ̂  Since it does not, but
rather on due process and in some instan­
ces Sixth Amendment ones, we do not see 
that "apparent conflict" which concerned 
the Perez court between it and the Rose 
and Castaneda holdings. We suggest with

^'The Perez court represented that 
the Peters opinion "discussed" the 
question of a defendant's standing "in 
an equal protection context and 
concluded that 'when a grand or petit

9 - A



Footnote 4 continued: 
jury has been selected on an imper­
missible basis, the existence of a 
constitutional violation does not 
depend on the circumstances of the 
person making the claim.'" Perez 672 
F.2d at 1385-86 (citing Peters, 407 
U.S. at 498, 92 S.Ct. at 2166). In 
this specific context, we believe the 
Perez court misunderstood the meaning 
of the Peters opinion. The language 
quoted by Perez means only that the 
"existence" of a "violation does not 
depend on the circumstances of the 
person making the claim. In the 
language following the Court ex­
plained, "[i]t is a different ques­
tion, however, whether petitioner is 
entitled to the relief he seeks on the 
basis of that constitutional basis." 
This question— that of standing to 
object— was not analyzed in the equal 
protection context, but in the due 
process context.

Furthermore, we do not conclude so 
readily as did the Perez court that 
the Rose opinion "at first seems to 
support the holding in Peters v,
Kif f ,11 at least not as Peters is 
interpreted by the Perez court. The 
opinion in Rose does state, as the 
Perez court represents, that earlier 
Supreme Court decisions have 
"recognized that a criminal 
defendant's right to equal protection 
of the laws has been denied when he is 
indicted by a grand jury from which 
members of a racial group purposefully 
have been excluded." Yet, the court 
in Rose cited in support of this pro-

10 A



deference that Peters1 due process analy­
sis did not bear on Perez1 s equal protec­
tion claim. Nor do we see how Peters 
could figure in today's decision.

The plurality opinion in Peters 5 
reviewed a claim brought by a white 
defendant that discrimination against 
blacks in the selection of his grand jury 
violated his consitutional rights under 
the due process and equal protection 
clause. The State in that case attacked 
plaintiff's standing, arguing that absent 
a specific showing of harm only a member 
of the discriminated-against minority

Footnote 4 continued:
position two cases, each of whcih 
upheld a black defendant's right to 
object to the exclusion of blacks from 
his grand jury. Limited as it should 
be to this proposition, it does not 
bear directly on the question before 
us or the court in Perez.

^The majority in Peters was made up 
of three Justices concurring in 
Justice Marshall's opinion and three 
joining Justice White's concurrence in 
the judgment. Only Justice Marshall's

11 A



could rest on the presumption that a 
grand jury so constituted would be preju­
diced against him. The Supreme Court 
responded that this "argument takes too 
narrow a view of the kinds of harm that 
flow from discrimination in jury 
selection." 407 U.S. at 498 , 92 S.Ct. at 
2166. The Court noted that the exclusion 
of minorities from jury service "offends 
a number of related constitutional 
values." Id.

The Court first reviewed cases in 
which black defendants had presented 
equal protection challenges to the 
discriminatory exclusion of other blacks

Footnote 5 continued:
opinion rests on the right of a white 
defendant not to have black jurors 
systematically excluded from his 
juries. Justice White's concurrence 
rests on statutory grounds not urged 
here.

12 - A



from their grand juries. In concluding 
its equal protection discussion, the 
Peters Court reasoned that " [b]ecause 
each of these three cases was amenable to 
decision on the narrow basis of an analy­
sis of the Negro defendant's right to 
equal protection, the Court brought all 
three under that single analytical 
umbrella." Id. at 499 , 92 S.Ct. at 2167
(emphasis added). But the defendant in 
Peters was white, and so the court pro­
ceeded to examine the standing of a white 
defendant under alternative constitu­
tional values. The Court explained that 
because of its disposition of the case, 
it had not been necessary to consider 
defendant's claim that his own rights 
under the Equal Protection Clause had

13 - A



been violated. _Id. at 497 5, 92 S.Ct. at 
2165 n. 5. 6

The Court considered other specific 
constitutional values and their effect on 
the class of defendants having standing 
to object. It concluded that the exclu­
sion of a discernible class from jury 
service would violate the right preserved 
by the Sixth Amendment to "a represen­
tative cross-section of the community." 
Id. at 500, 92 S.Ct. at 2167 (citing in
Williams v. Florida, 399 U.S. 78, 100, 90 
S. Ct. 1893), 1906, 26 L.Ed.2d 446 
(1970). But the Sixth Amendment was not 
applicable in Peters; the Court instead 
based its decision entirely upon the due 
process analysis.

Indeed, the dissent of the Chief 
Justice squarely so observes, without 
protest from Justice Marshall:

While the opinion of Mr. Justice 
Marshall refrains from relying on 
the Equal Protection Clause, it

14 - A



Starting with the premise that "[a] 
fair trial in a fair tribunal is a basic 
requirement of due process," the Court 
reasoned that an unconstitutionally com­
posed grand jury violated the due process 
rights of all defendants. The Court 
relied upon an expanded view of standing 
in this context, because due process 
violations had previously been found 
absent a showing of actual bias. The 
likelihood or appearance of bias in the 
composition of the tribunal was suf­
ficient to support a due process claim: 
"[i Illegal and unconstitutional jury 
selection procedures cast doubt on the

Footnote 6 continued; 
concludes that if petitioner's 
allegations are true, he has been 
denied due process of law.
407 U.S. at 509, 92 S.Ct. at 
2172.

15 - A



integrity of the whole judicial process." 
Id. 407 U.S. at 502, 92 S.Ct. at 2168. 
It was only in the context of recognized 
due process values that the white defen­
dant in Peters was granted standing.

We do not suggest that the election of 
the court in Peters to decide standing in 
that case under a due process rather than 
an equal protection analysis precludes a 
similar conclusion under equal protec­
tion . We hold only that because the 
Court did not reach the question of 
standing under the equal protection anal­
ysis in that case, we are compelled to do 
so today. As it bears on this question, 
we read Peters to stand for the proposi­
tion that objections to the composition 
of a grand jury under the equal protec­
tion and due process analyses are

16 - A



distinct, and that the former is likely a 
more "narrow basis of analysis." Id. at 
499 S.Ct. at 2167. 7

Against this background, we decide the 
question based on a more recent Supreme 
Court decision analyzing the question of 
standing to object to grand jury selec­
tion specifically under the equal protec­
tion analysis. Rose v. Mitchell, 443 
U.S. 545, 99 S.Ct. 2993 , 61 L.Ed.2d 739 
(1979). Cronn makes no complaint that 
the (numerical) minority of which he is a 
member— Anglo males— has been discrimi­
nated against in foreman selections. 
This is fatal to his equal protection
contention. Writing in Rose, a case
involving claimed discrimination in
selection of grand jury foremen and

7 That equal protection may be more 
narrowly drawn was also suggested by 
the Supreme Court in Bolling v. 
Sharpe;

17 A



squarely in point on this issue, the 
Supreme Court reiterated its earlier 
holding in Castaneda, quoting from that 
opinion:

That is "in order to show that an 
equal protection violation has 
occurred in the context of grand jury 
[foreman] selection, the defendant 
must show that the procedure employed 
resulted in substantial underrepresen­
tation of his race or of the identi­
fiable group to which he belongs." 
Castaneda v. Partida, 430 U.S., at
494 , 51 L. Ed. 2d 498 , 97 S.Ct. 1272
[at 1280].

Id. at 565, 99 S.Ct. at 3005 (emphasis
added). We are not free either to disre-

Footnote 7 continued:
The "equal protection of the laws" 
is a more explicit safeguard of 
prohibited unfairness than "due 
process of law," and, therefore, 
we do not imply that the two are 
always interchangeable phrases. 
But, as this Court has recognized, 
discrimination may be so unjusti­
fiable as to be violative of due 
process.

347 U.S. 497, 74 S.Ct. 693, 694, 93
L.Ed. 884 (1954).

18 - A



gard or to expand upon the express lan­
guage of the Court, writing on the 
precise legal point at issue today, espe­
cially where it is the Court's last word 
on the subject and.where the Court pro­
ceeded to evaluate the evidence in the 
case before it exactly in accord with its 
statement of the proof required.

Logic indicates that equal protection 
considerations are not involved in the 
claim of a white male not to have females 
and racial minorities excluded from the 
judicial process as it is applied to him. 
The essence of an equal protection claim 
is that other persons similarly situated 
as is the claimant unfairly enjoy bene­
fits that he does not or escape burdens 
to which he is subjected. This sort of a 
contention on Cronn's behalf might be

19 - A



stated, for example, in such terms as 
that his right to be tried by a petit 
jury containing members of his own ethnic 
group was infringed by the systematic 
exclusion of its members from venires. 
Stated or unstated, a claim that others 
similarly situated as he is— members of 
groups that are not so excluded from jury 
service— are unfairly favored over him in 
this regard is an essential component of 
such a claim. Equal protection claims 
are of their nature personal, to be 
stated in terms of one's own rights or 
those of a class in which one claims 
membership; logically, Cronn lacks 
standing to complain of unequal treatment 
accorded other persons or classes of 
which he is not a member.

20 A



So much for rigorous logic. We are 
aware that it has not always carried the 
day where standing to assert the consti­
tutional rights of third persons is at 
issue. Especially in First Amendment 
questions involving freedom of expres­
sion, the Court has, for example, tended 
to examine the validity of a statute on 
its face— sometimes at the behest of per­
sons to whom its unconstitutionality as 
applied is more unlikely. A noted com­
mentator suggests that this tendency pro­
bably results from the threat that a
broad statute may pose to free
expression. C. Wright, The Law of
Federal Courts 73 & n. 71 (1983) (and
cases cited therein). But such
challenges also have been entertained in 
other First Amendment contexts. Pierce

21 - A



v. Society of Sisters, 268 U.S. 510, 45
S-Ct. 571, 69 L.Ed. 1070 (1925)
(parochial school successfully asserted 
rights of students and parents against 
statute requiring public education 
exclusively). Even in the area of equal 
protection such departures from the rule 
that one may not assert the rights of 
another are not unknown. Buchanan v. 
Warley, 245 U.S. 60, 38 S.Ct. 16, 62 
L.Ed. 149 (1917). There a white seller
seeking specific performance of a real 
estate sales contract with a black 
purchaser was heard to assert that a city 
ordinance barring black persons from the 
area concerned was unconstitutional, and 
this over the assertion of the ordinance 
as a defense by the purchaser. These 
are, however, exceptional instances and

22 A



ones— except perhaps those regarding free 
expression— where the rights of the
plaintiff derive from the same nexus and 
stand in a symbiotic relationship to 
those of the third party. Perhaps the 
rule to be deduced is that any part to a 
consensual and existing relationship that 
is regulated by statute will be allowed 
to assert the rights of the other. See 
Griswold v. Connecticut, 381 (1965)
(physician furnishing contraceptives to 
patients); C. Wright, supra, at 73.

Nothing of this sort is presented by 
Cronn's equal protection contention. It 
is vintage jus tertii, and we conclude 
that the general rule against enter­
taining such equal protection claims 
should prevail. This seems, indeed, 
especially so where at all times during

23 - A



this litigation the due process attack 
sanctioned by Peters v. Kiff, 407 U.S. 
493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), 
lay ready to Cronn's hand but was not 
taken up.

Cronn advances two lesser points for
reversal which merit brief discussion.
The first complains of the trial court's
refusal to deliver a tendered charge
defining "reckless indifference" as used
in a portion of the mail fraud charge on
which he was convicted. The relevant
portion of the charge reads as follows:

A statement or representation is 
"false" or "fraudulent" within the 
meaning of this statute if it relates 
to a material fact and is known to be 
untrue or is made with reckless indif­
ference as to its truth or falsity, 
and is made or caused to be made with 
intent to defraud.
During the charge conference appel­

lant's counsel requested that the follow­

24 A



ing instruction be read to the jury to 
explain the meaning of making a repre­
sentation with "reckless indifference" as 
to its truth and falsity:

In this context "reckless indif­
ference" means that a defendant must 
have actually been aware of a high 
probability that the statements were 
untrue, and he must have consciously 
disregarded that high probability.
The general rule in our Circuit as

regards jury instruction is:
The primary purpose of jury instruc­
tions is to define with substantial 
particularity the factual issues, and 
clearly instruct the jurors as to the 
principles of laws which they are to 
apply in deciding the factual issues 
involved in the case before them.

United States v. Gilbreath, 452 F.2d 992, 
994 (5th Cir.1971). When called upon to 
review the adequacy of jury instructions,
an appellate court must examine the
instructions as a whole, rather than
merely viewing the failure to give any

25 A



one instruction independently. United
States v. Grote, 632 F. 2d 387 ( 5th
Cir .1980) ; United States v. Leal, 547 
F. 2d 1222 (5th Cir.1977 ). The proper 
standard of review, therefore, is 
"whether the court's charge as a whole 
was a correct statement of law." United 
States v. Arguelles, 594 F.2d 109, 112 n. 
3 (5th Cir.1979).

Certainly, the instructions given are 
on their face "a correct statement of 
law." They were taken from a standard 
work. We conclude that in context as 
given and taken as a whole they fairly 
present the factual issues. The terms 
"reckless" and "indifference" either 
alone or in combination, carry their nor­
mal meaning in the context and are 
scarcely words of art. In order to con-

26 - A



vict, the jury was required to find not 
only the presence of "reckless 
indifference" in the making of the state­
ments in question, but that they were 
made with "intent to defraud." Though 
the definitions are fairly circular, they 
present the concept fairly.

The second point complains of the 
exclusion of the testimony of an expert 
witness, where the district court deter­
mined the proffered witness was not qua­
lified. Trial courts exercise a wide 
discretion as to admission and exclusion 
of evidence and an unusually wide one as 
to the testimony of expert witnesses. 
Salem v. United States Lines Co,, 370 
U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 
L.Ed.2d 313 (1962); Perkins v. Volkswagen 
of America, Inc., 596 F.2d 681, 682 (5th

27 A



Cir.1979 ) . We conclude that it was not
exceeded here.

AFFIRMED.

28 - A



United States of America, 
v .

Donald Lorrin Cronn,
No. CR 3-82-071

United States District Court 
N.D. Texas,

Dallas Division.
Aug. 4, 1982

MEMORANDUM OPINION AND ORDER 
This case is presently before the 

Court on Defendant's motion to make 
available to the Defendant and his coun­
sel the records of grand jury selection. 
Defendant wants to adduce evidence to 
support his motion to dismiss the indict­
ment based on discriminatory selection of 
grand jury foremen. Defendant relies 
solely on the Fifth Amendment. If 
Defendant has a right to a dismissal of the 
indictment on the basis of discriminatory 
selection of grand jury foremen, it

29 A



follows that he has a right to have 
access to the records of grand jury 
selection. Therefore, the issue before 
the Court is whether Defendant would be 
entitled to a dismissal of the indict­
ment, assuming an appropriate showing of 
discrimination in the selection of grand 
jury foremen and further assuming the 
government fails to rebut such showing.

I. STANDING
Defendant is a white male. He alleges 

that during the period from 1970 through 
1982, members of constitutionally recog­
nizable minority groups have been uncon­
stitutionally precluded from service as 
grand jury foremen. The Fifth Circuit 
has never directly been faced with the 
issue of whether a non-minority has 
standing to assert an equal protection 
claim based on the underrepresentation of

30 A



minorities on a grand jury. Two district 
courts have denied standing in this 
situation based on the following language 
from Castaneda v. Partida, 430 U.S. 482, 
494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 
(1977), quoted in Rose v. Mitchell, 443 
U.S. 545, 565, 99 S.Ct. 2993, 3004, 61
L .Ed.2d 739 (1979): "Thus, in order to
show that an equal protection violation 
has occurred in the context of grand jury 
selections, the defendant must show that 
the procedure employed resulted in 
substantial underrepresentation of his 
race or of the identifiable group to 
which he belongs." (emphasis added). 
However, this Court finds the reasoning 
in U.S. v. Perez-Hernandez, 672 F.2d 1380 
(11th Cir. 1982) and U.S. v. Breland, 522 
F.Supp. 468 (N.D. Ga. 1981) more per­
suasive on this point. These opinions

31 - A



rely on Peter v. Kiff, 407 U.S. 493, 92
S.Ct. 2163, 33 L.Ed.2d 83 (1972) wherein
the Supreme Court concluded the following:

In light of the great po­
tential for harm latent in 
an unconstitutional jury- 
selection system, and the 
strong interest of the cri­
minal defendant in avoiding 
that harm, any doubt should 
be resolved in favor of 
giving the opportunity for 
challenging the jury to too 
many defendants, rather 
than giving it to too few.

As pointed out by the 11th Cir. in
Perez-Hernandez, supra, at 1386 "[t]he 
holding in Peters v. Kiff is clear and
unambiguous and has never been expressly 
overruled." Although the Castaneda and 
Rose opinions are more recent, in each
case the defendant was in fact a member of 
a minority group. Thus, the issue of
whether a non-minority in fact has stand­
ing to assert underrepresentation of mi­
norities has not been directly reassessed

32 - A



by the Supreme Court. Under the Supreme 
Court authority outlined above, I believe 
that a non-minority has standing to assert 
a challenge to the minority representation 
on a grand jury. However, because I 
conclude in Part II of this memorandum 
opinion that the duties of the grand jury 
foreman are ministerial and not of consti­
tutional significance, it is not necessary 
to this ruling to determine standing.

II. SELECTION OF GRAND JURY FOREMEN
This issue of whether a federal defen­

dant has a right to challenge the selec­
tion of the grand jury foreman has never 
been squarely faced by the Supreme Court. 
This issue has been addressed by only one 
Circuit Court. United States v. 
Perez-Hernandez, 672 F.2d 1380 ( 11th Cir. 
1982). The Eleventh Circuit Court held 
that the defendant does have a right to

33 A



nondiscriminatory selection of federal 
grand jury foremen under the 5th 
Amendment. This result was reached
through analogy to 14th Amendment cases 
which have held that a state defendant has 
a right to challenge a discriminatory 
selection of foremen which is co-equal to 
the right to challenge discriminatory 
selection of the grand jury members. 
Guice v. Fortenberry, 661 F.2d 496 ( 5th
Cir. 1981) per curiam.

The Supreme Court assumed in Rose v. 
Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 
L.Ed.2d 739 (1979) that a conviction must 
be set aside for discrimination in the 
selection of grand jury foremen in the 
context of a 14th Amendment challenge to 
the selection process used in Tennessee. 
In Guice v. Fortenberry, 661 F.2d 496 (5th 
Cir. 1981), the Fifth Circuit accepted

34 A



this assumption. However, Rose and Guice 
are not controlling under the facts of 
this case.

Both Rose and Guice involved challenges 
to state selection procedures for grand 
jury foremen. In the Rose case the fore­
man was chosen by the judge from the en­
tire population. The foreman was then 
added to the randomly chosen grand jury as 
a thirteenth member. In Guice the foreman 
was selected from the 40 member venire and 
then the remaining 11 members of the 
grand jury was selected randomly from the 
remaining 39 veniremen. Thus, each case 
presents a situation where discrimination 
in the selection of the foreman may result 
in a discriminatorily selected grand jury 
as a whole. This is not the case in the 
federal selection of a grand jury foreman. 
A panel of 23 grand jury members is first

35 A



selected in a manner which is not chal­
lenged here. From this presumptively fair 
cross-section of the population one member 
is selected by a judge to act as foreman. 
There is no chance that discrimination in 
the selection of the foreman would upset 
the balance of the grand jury by adding a 
discriminatorily selected member.

The nature of the duties and the power 
of the grand jury foreman is significantly 
different in the federal system than under 
the facts of either Rose or Guice. The 
Tennessee grand jury foremen challenged in 
Rose aid the district attorney in investi­
gation criminal activity, may issue sub­
poenas , and must sign an indictment in 
order to prevent a fatal defect in the 
indictment. See Rose v . Mitchell, 443 
U.S. at 548 n. 2, 99 S.Ct. at 2996 n. 2; 
Bird v. State, 103 Tenn. 343, 52 S.W. 1076

36 A



(1899). The Louisiana grand jury foremen 
challenged in Guice are likewise charged 
with an active role in the pursuit of cri­
minal activities. Guice, supra at 511. 
On the other hand a federal grand jury 
foreman merely administers oaths, signs 
indictments and keeps clerical records. 
See Rule 6 of the Federal Rules of 
Criminal Procedure. These are clearly 
simply ministerial duties. Because I find 
that the duties of a federal grand jury 
foreman are not constitutionally signifi­
cant, I hold that Defendant Donald Lorrin 
Cronn does not have a right under the 5th 
Amendment to challenge selection of grand 
jury foremen as discriminatory.

In conclusion, I find that the position 
of a federal grand jury foreman is very 
different from the position of the state 
grand jury foremen challenged in Rose and

37 - A



Guice, and thus these cases are not con­
trolling. I further find that the posi­
tion of a federal grand jury foreman is 
not constitutionally significant. There­
fore, the Defendant in this case has no 
cause of action under the 5th Amendment to 
challenge the selection procedure used for 
federal grand jury foremen. It is accor­
dingly

ORDERED that Defendant Cronn's motion 
to make available the records of grand 
jury selection for the purpose of adducing 
evidence in aid of Defendant's motion to 
dismiss the indictment based on discrimi­
natory selection of grand jury foreman be 
and hereby is DENIED in all things.

38 - A



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 82-1614

D.C. Docket No. CR-3-82-071-F 
UNITED STATES OF AMERICA,

versus Plaintiff-Appellee,

DONALD LORRIN CRONN,
Defendant-Appellant.

Appeal from the United States District 
Court for the Northern District 

of Texas
Before CLARK, Chief Judge, GEE and POLITZ, 
Circuit Judges

J U D G M E N T
This cause came on to be heard on 

the record on appeal and was argued by 
counsel;

ON CONSIDERATION WHEREOF, It is now 
here ordered and adjudged by this Court 
that the judgment of the said District

39 - A



Court in this cause be, and the same is 
hereby, affirmed.

September 28, 1983 
ISSUED AS MANDATE:

40 A



IN THE UNITED STATES COURT OF .APPEALS
FOR THE FIFTH CIRCUIT

No. 82 1614

UNITED STATES OF AMERICA,
Plaintiff-Appellee, 

versus
DONALD LORRIN CRONN,

Defendant-Appellant.
Appeal from the United States District 

Court for the Northern District 
of Texas

ON PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC

(Opinion September 28, 5 Cir., 1983
______  F . 2d ______ )

(October 27, 1983)
PER CURIAM:
(x) The Petition for Rehearing is
DENIED and no member of ths panel nor 
Judge in regular active service of the 
Court having requested that the Court be

41 A



polled on rehearing en banc, (Federal 
Rules of Appellate Procedure and Local 
rule 35) the Suggestion for Rehearing En 
Banc is DENIED.
( ) The Petition . for Rehearing is
DENIED and the Court having been polled at 
the request of one of the members of the 
Court and a majority of the Circuit Judges 
who are in regular active service not 
having voted in favor of it, (Federal 
Rules of Appellate Procedure and Local 
Rule 35) the Suggestion for Rehearing En 
Ban is also DENIED.
( ) A member of the Court in active
service having requested a poll on the re­
consideration of this cause en banc, and a 
majority of the judges in active service 
not having voted in favor of it, rehearing 
en banc is DENIED.

ENTERED FOR THE COURT:
THOMAS GIBBS GEE__________

UNITED STATES CIRCUIT JUDGE

42 - A



No. 82 1614

UNITED STATES OF AMERICA,
Plaintiff-Appellee, 

versus
DONALD LORRIN CRONN,

Defendant-Appellant.

Appeal from the United States District 
Court for the Northern District 

______ of Texas______

O R D E R :
[ ] The motion of appellant, Donald Lorrin 
Cronn, for [x] stay [ ] recall and stay of 
the issuance of the mandate pending peti­
tion for writ of certiorari is DENIED.
[x] The motion of appellant, Donald Lorrin 
Cronn, for [x] stay [ ] recall and stay of 
the issuance of the mandate pending peti-

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

43 A



tion for writ of certiorari is GRANTED to 
and including November 26, 1983, the stay 
to continue in force until the final dis­
position of the case by the Supreme Court, 
provided that within the period above men­
tioned there shall be filed with the Clerk 
of this Court the certificate of the Clerk 
of the Supreme Court that the certiorari 
petition has been filed. The Clerk shall 
issue the mandate upon the filing of a 
copy of an order of the Supreme Court 
denying the writ, or upon the expiration 
of the stay granted herein, unless the 
above mentioned certificate shall be filed 
with the Clerk of this Court within that 
time.
C ] The motion of ________________ _
for a further stay of the issuance of the 
mandate is GRANTED to and including _____

44 A



under the same conditions as
set forth in the preceding paragraph.
[ ] The motion o f ______________ __________
for a further stay of the issuance of the 
mandate is DENIED.

THOMAS GIBBS GEE________
UNITED STATES CIRCUIT JUDGE

45 A



EXCERPT FROM PRE-TRIAL HEARING
28

selected, I would think that any member 
thereof would be appropriate as foreman.

MR. McCOLL : Well, that's not
exactly the case law —  as I read the
cases, Your Honor, I may be wrong, but
that's not my interpretation of the case. 
And I cite specifically United States v. 
Perez-Hernandez. 672 Federal 2d 1380. And 
there the Court relied on a Fifth Circuit 
holding which talked about the -—

THE COURT: Is that an Eleventh 
Circuit case?

MR. McCOLL: Yes, sir. But it 
relied on a Fifth Circuit case which 
accepted the rational that we're —  that 
we're going forward on. It's just simply 
in the last ten years that there has never 
been a foreman that —  that —  that repre­

46 - A



sents —  is representative of a cognizable 
group in a community —

THE COURT: Well, that's true. But
let's let the record reflect that the 
defendant Cronn is a Caucasian male, is he 
not?

MR . McCOLL: Yes, sir. But under
Peters v. Kif f I don ' t think that's a
problem.

THE COURT: Well, it may not be a
problem, but your complaint is that —  and 
as a matter of fact, the grand jury that 
indicted him had a female foreman, which 
you can tell, obviously, from the indict­
ment itself. Is that not correct?

47 A