United States v. Richard S. Berry

The court’s opinion filed on July 7,1980 is withdrawn and the following Amended Opinion is substituted.

Berry argues that his conviction for conspiracy to commit fraud should be reversed because (1) the Arizona District’s jury selection system improperly excluded Indians and (2) the cumulative effect of several errors and instances of prosecutorial misconduct prejudiced him and foreclosed his right to a fair trial. We reject both arguments and affirm the conviction.

Berry was indicted for offenses related to perjury and the obstruction of justice by a grand jury selected from the combined Phoenix and Prescott divisions of the District of Arizona. Under the jury selection system then in operation, prospective jurors in each division living more than 100 miles from the division courthouse could exempt themselves from consideration for service. Berry attempted to show that this exemption caused an unconstitutional underrepresentation of Indians. The government challenged his statistical evidence as stale and inaccurate.

At his trial, Barnes and Herzberg testified against Berry. Each had been convicted of offenses related to a fraud scheme but, in exchange for their cooperation,…