     Case: 11-51052       Document: 00512336127         Page: 1     Date Filed: 08/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 8, 2013

                                       No. 11-51052                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

BENJAMIN ALEXANDER POTTS,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-69-1


Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Benjamin Alexander Potts asserts on appeal that his
convictions should be reversed because the district court denied his motion to
inspect, reproduce, and copy the grand jury lists pursuant to the Jury Selection
and Service Act, 28 U.S.C. § 1861 et. seq.              For the following reasons, we
REMAND to the district court.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 11-51052

                                             I.
       In February 2011, Benjamin Alexander Potts (“Potts”) was charged in a
second superseding indictment with bank robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 2113(a) and (d) (Counts One and Three); carrying a
firearm during the commission of a crime of violence and aiding and abetting,
in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(i) (Count Two); and carrying a firearm
during the commission of a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (Count Four). In July 2011, Potts,
proceeding pro se,1 filed a pre-trial motion “to inspect, reproduce and copy all list
[sic] of Grand Jury empanaled [sic] in the [Western] [D]istrict [of Texas] within
the last (“10”) years, including the grand jury which returned each indictment
in this present case.” Potts’s asserted basis for the motion was to determine
whether the grand jury was lawfully selected, including whether persons were
selected for grand jury service on the basis of “law enforcement or legal
community employment or associations, or other such connections that would
bring into question the validily [sic] of siad [sic] indictments.”
       After holding a pre-trial hearing on the motion in August 2011, the district
court issued an order denying, inter alia, Potts’s motion to inspect the grand jury
list. The court did not state any reasons for its denial. Later that month, a jury
convicted Potts of the charged offenses, and the district court sentenced him to
300 months of imprisonment on each count to run consecutively and five years
of supervised release on each count to run concurrently. The district court also
ordered Potts to pay restitution in the amount of $518,726.13 and a $400 special
assessment. This appeal followed.2


       1
        In an order dated May 26, 2011, the district court granted Potts’s motion to proceed
pro se and appointed standby counsel to assist Potts with legal issues.
       2
        Potts’s appointed counsel filed a motion to withdraw and a brief, asserting pursuant
to Anders v. California, 386 U.S. 738, 744 (1967), that there was no non-frivolous issue for

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                                              II.
                                              A.
       The sole question presented on appeal asks whether the district court
erred in denying Potts’s motion to inspect, reproduce, and copy the grand jury
lists. Potts argues that the district court improperly denied his motion because
§ 1867(f) of the Jury Selection and Service Act (“the Act”) grants federal criminal
defendants an “unqualified right” to inspect the jury list to ensure that such
juries are randomly selected from a fair cross section of the community. In light
of that alleged error, Potts urges this court to reverse his conviction.
                                              B.
       “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 in the district or division
wherein the court convenes.” 28 U.S.C. § 1861.
       Section 1867(e) of the Act provides a criminal defendant “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.” 28 U.S.C. § 1867(e). In challenging the jury selection process, a
criminal defendant, “before the voir dire examination begins . . . may move to
dismiss the indictment or stay the proceedings against him on the ground of
substantial failure to comply with the provisions of this title in selecting the
grand or petit jury.” Id. § 1867(a). “The contents of records or papers used by
the jury commission or clerk in connection with the jury selection process shall


appeal. We determined that the Anders brief was inadequate and ordered counsel to file a
supplemental Anders brief or a brief on the merits. United States v. Potts, No. 11-51052 (5th
Cir. filed June 5, 2012) (order requiring counsel to file a supplemental brief or, in the
alternative, a merits brief). Potts’s counsel then filed a motion to withdraw the Anders motion,
asserting that there was a non-frivolous issue for appeal regarding the denial of the motion
to inspect the grand jury lists. Accordingly, we grant the motion to withdraw the Anders
motion and deny the motion as moot.

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not be disclosed, except pursuant to the district court plan or as may be
necessary in the preparation or presentation of a motion under subsection (a) .
. . of this section[.]” Id. § 1867(f). “The parties in a case shall be allowed to
inspect, reproduce, and copy such records or papers at all reasonable times
during the preparation and pendency of such a motion.” Id.
                                       C.
      In Test v. United States, the Supreme Court addressed the scope of a
defendant’s right to inspection under § 1867(f). 420 U.S. 28, 30 (1975). The
Court held that § 1867(f)
            makes clear that a litigant has essentially an
            unqualified right to inspect jury lists. It grants access
            in order to aid parties in the “preparation” of motions
            challenging jury-selection procedures. Indeed, without
            inspection, a party almost invariably would be unable
            to determine whether he has a potentially meritorious
            jury challenge. Thus, an unqualified right to inspection
            is required not only by the plain text of the statute, but
            also by the statute’s overall purpose of insuring “grand
            and petit juries selected at random from a fair cross
            section of the community.”

Id. (footnotes omitted).
      Accordingly, the Court vacated the judgment of the court of appeals and
remanded the matter with instructions to allow the defendant to support his
challenge to the jury-selection procedures. Id.
      Adhering to Test, we similarly held, in Government of the Canal Zone v.
Davis, that the district court erred in denying the defendants’ motion to inspect,
reproduce, and copy papers and records of the jury selection procedure. 592 F.2d
887, 889 (5th Cir. 1979). Following the Davis court’s denial of that motion and
defense counsel’s observation that the jury panel “appeared to consist entirely
of Caucasian men and women, 90% of whom were between forty-five and
fifty-five years old[,]” the defendants waived their right to a trial by jury and

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                                   No. 11-51052

proceeded to a bench trial on stipulated facts.         Id. at 888.    The court
subsequently found the defendants guilty. Id.
      On appeal, we reversed the defendants’ convictions and remanded the case
to allow the defendants to exercise properly their right to inspect the jury list.
Id. at 890. In noting the holding of Test that a “litigant has an unqualified right
to inspect the jury list,” we stated:
            Having determined that an order was necessary to gain
            access to the records and having made the appropriate
            motion with an accompanying affidavit, the appellants’
            right to inspect under § 1867(f) was violated when the
            [d]istrict [c]ourt denied the motion.         Since the
            appellants’ right to inspection was unqualified, whether
            or not the accompanying affidavit established a prima
            facie case of defective jury selection process is of no
            import. Indeed, without inspection, a party almost
            invariably would be unable to determine whether he
            has a potentially meritorious jury challenge.
Id. at 889 (footnote, citations, and quotation marks omitted).
                                        III.
      Although the government contends that the district court’s denial of
Potts’s motion was harmless “because the presence or absence of law
enforcement is not a ‘distinctive group’ cognizable under the [the Act],” we reject
that argument as contrary to controlling Supreme Court law. As unequivocally
noted in Test, § 1867(f) grants Potts “essentially an unqualified right to inspect
jury lists . . . in order to aid [him] in the preparation of motions challenging
jury-selection procedures.” 420 U.S. at 30 (internal quotation marks omitted);
see also Davis, 592 F.2d at 889. Accordingly, the government’s position is
unavailing. See Davis, 592 F.2d at 889 (noting that the establishment of a prima
facie case of defective jury selection is unnecessary because the right to
inspection is unqualified); see also United States v. Royal, 100 F.3d 1019, 1025
(1st Cir. 1996) (“[A] district court may not premise the grant or denial of a


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motion to inspect upon a showing of probable success on the merits of a
challenge to the jury selection provisions.”); United States v. Alden, 776 F.2d 771,
775 (8th Cir. 1985) (noting that the district court’s denial of a motion to inspect
the jury list on the basis that an age group bracket was not a cognizable group
under the Act was immaterial, as Test precludes additional requirements that
defendants must satisfy in gaining access to jury selection records).
      Although the district court improperly denied Potts’s motion to inspect the
grand jury list, we conclude that this error does not mandate reversal of Potts’s
convictions. The government persuasively argues that the instant case is
factually distinguishable from Davis. As previously noted, after the district
court in Davis denied the defendants’ motion to inspect the jury selection
records, the defendants waived their right to a jury trial and proceeded to a
bench trial following their observation of the composition of the jury. 592 F.2d
at 888. Importantly, in reversing the defendants’ convictions and remanding the
case to the district court to allow the defendants to inspect and copy the jury
records, we stated that the “[defendants] w[ould] then be in a position to make
informed decisions as to whether the jury selection process warrants challenge
and as to whether they prefer trial by a representative jury or before the court.”
Id. at 890. The Davis court thus implicitly acknowledged that the improper
denial of the defendants’ motion to inspect could have prejudiced the defendants’
decision whether to waive their right to a jury. See United States v. Marcano-
Garcia, 622 F.2d 12, 18 (1st Cir. 1980).
      Unlike the Davis defendants, Potts was convicted by a jury, so the
erroneous denial of Potts’s motion had not prejudiced the exercise of his right to
a jury trial. Thus, outright reversal of Potts’s convictions is not warranted at
this time. Rather, we remand the case to the district court to permit Potts to
inspect, reproduce, and copy the grand jury lists and thereafter move for a new
trial under § 1867(a) if he so chooses. If Potts establishes that the method of

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                                 No. 11-51052

jury selection violated the law, the court shall set aside his convictions. Our
holding is consistent with those other circuits that have found error under Test
after defendants were convicted by a jury. See, e.g., Royal, 100 F.3d at 1025-26
(noting that remand and not reversal of a defendant’s conviction is the
appropriate remedy when the district court erroneously denies a defendant’s
motion to inspect the jury list); United States v. Curry, 993 F.2d 43, 44-45 (4th
Cir. 1993) (same); United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986)
(same); Alden, 776 F.2d at 775 (same); United States v. Lawson, 670 F.2d 923,
926 (10th Cir. 1982) (same).
                                      IV.
      For the foregoing reasons, we REMAND to the district court for further
proceedings consistent with this opinion.




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