749 F.3d 1154 (9th Cir. 2014), 11-50417, United States v. Hernandez-Estrada

Docket Nº:11-50417
Citation:749 F.3d 1154
Opinion Judge:THOMAS, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SALVADOR HERNANDEZ-ESTRADA, Defendant-Appellant
Attorney:Michele A. McKenzie (argued), Federal Defenders, San Diego, California, for Defendant-Appellant. Laura E. Duffy, United States Attorney, Bruce R. Castetter, David Curnow, and Victor P. White (argued), Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.
Judge Panel:Before: Alex Kozinski, Chief Judge, and Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Johnnie B. Rawlinson, Carlos T. Bea, Milan D. Smith, Jr., N. Randy Smith and Jacqueline H. Nguyen, Circuit Judges. Concurrence by Judge Milan D. Smith, Jr.; Concurrence...
Case Date:April 30, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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749 F.3d 1154 (9th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

SALVADOR HERNANDEZ-ESTRADA, Defendant-Appellant

No. 11-50417

United States Court of Appeals, Ninth Circuit

April 30, 2014

Argued and Submitted En Banc, San Francisco, California December 10, 2013

Petition for certiorari filed at, 07/28/2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:10-cr-00558-BTM-1. Barry T. Moskowitz, District Judge, Presiding.

Michele A. McKenzie (argued), Federal Defenders, San Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, David Curnow, and Victor P. White (argued), Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.

Before: Alex Kozinski, Chief Judge, and Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Johnnie B. Rawlinson, Carlos T. Bea, Milan D. Smith, Jr., N. Randy Smith and Jacqueline H. Nguyen, Circuit Judges. Concurrence by Judge Milan D. Smith, Jr.; Concurrence by Judge N.R. Smith.

OPINION

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THOMAS, Circuit Judge

The Sixth Amendment and the Jury Selection and Service Act of 1968 (" the Jury Selection Act" ) afford criminal defendants " the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community." Berghuis v. Smith, 559 U.S. 314, 319, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010). Our circuit precedent required courts to evaluate challenges to the fair cross-section requirement using the " absolute disparity" test. United States v. Rodriguez--Lara, 421 F.3d 932, 943 (9th Cir. 2005). On re-examining the question, we conclude that confining a fair cross-section analysis to the absolute disparity test is inappropriate. However, we affirm the conviction in this case on other grounds.

I

Salvador Hernandez-Estrada (" Hernandez" ) was indicted on February 18, 2010, for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Hernandez moved to dismiss the indictment, arguing that the United States District Court for the Southern District of California (" Southern District" ) had violated the Jury Selection Act, the equal protection component of the Due Process Clause of the Fifth Amendment, and the fair cross-section requirement of the Sixth Amendment.

Hernandez primarily assailed the Southern District for its failure to supplement its juror source list, beyond the use of voter registration rolls, with sources such as Department of Motor Vehicle records. Hernandez also argued that the Southern District violated the Jury Selection Act by (1) using outdated text in the English proficiency question on its prospective juror questionnaire to disqualify prospective jurors improperly under a superseded legal standard; (2) allowing unsupervised court clerks to disqualify prospective jurors who answered in the affirmative regarding their English proficiency but expressed doubts about their linguistic abilities elsewhere on the form; (3) failing to return juror questionnaires to prospective jurors who did not answer the form's race and ethnicity questions; and (4) failing to maintain and report jury wheel representativeness statistics (on Form AO-12 reports)

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unless prompted to do so by litigation.

The district court agreed with Hernandez " that there are flaws in the [Southern] District's jury selection procedures" and acknowledged that " improvements could be made." Indeed, the court recommended that the Southern District take steps to remedy flaws in its jury selection procedures.1 However, the court ultimately concluded that those flaws did not constitute constitutional violations or substantial violations of the Jury Selection Act. The court denied Hernandez's motion to dismiss, and he was convicted as charged.

A three-judge panel of our court affirmed the conviction. United States v. Hernandez-Estrada, 704 F.3d 1015, 1019 (9th Cir. 2012). Chief Judge Kozinski, joined by Judge Watford, filed a concurring opinion urging us to reconsider en banc our exclusive reliance on the absolute disparity test in jury selection pool cases as enunciated in Rodriguez-Estrada . Id. at 1025-26 (Kozinski, C.J., concurring). Upon the majority vote of the active, non-recused judges of the court, we agreed to rehear this case en banc . United States v. Hernandez-Estrada, 729 F.3d 1224 (9th Cir. 2013).

In his appeal, Hernandez challenges only the district court's denial of his motion to dismiss. We review " independently and non-deferentially a challenge to the composition of grand and petit juries" under both the Constitution and the Jury Selection Act. United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

II

Hernandez argues that the Southern District's exclusive use of registered voter rolls as its juror source list results in under representation of African American and Hispanic citizens in the jury pool and, as a result, violates the fair cross-section requirements of the Jury Selection Act and the Sixth Amendment. Because the same analysis determines whether the jury selection procedures meet the fair cross-section requirement under either the Jury Selection Act or the Sixth Amendment, we consider those two claims together. United States v. Miller, 771 F.2d 1219, 1227-28 (9th Cir. 1985).

A

Under the Jury Selection Act and the Sixth Amendment, litigants in federal courts entitled to trial by jury have the right to " juries selected at random from a fair cross section of the community." 28 U.S.C. § 1861; Miller, 771 F.2d at 1227-28. Jurors must be selected from either " voter registration lists or the lists of actual voters of the political subdivisions within the district or division." Id. § 1863(b)(2). However, a district's jury selection plan must " prescribe some other source or sources of names in addition to voter lists where necessary to" meet the fair cross-

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section requirement, guarantee that all citizens have the opportunity to be considered for jury service, and ensure no citizen is excluded from jury service due to race, color, religion, sex, national origin, or economic status. Id. § § 1861, 1862, 1863(b)(2).

The Supreme Court in Duren v. Missouri " established a three-part test for determining whether a jury selection process passes constitutional muster" under the fair cross-section requirement:

" In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process."

Miller, 771 F.2d at 1228 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). " Once the defendant has established a prima facie case, the burden shifts to the government to show that 'a significant state interest be manifestly and primarily advanced by those aspects of the jury-selection process . . . that result in the disproportionate exclusion of a distinctive group.'" Rodriguez-Lara, 421 F.3d at 940 (quoting Duren, 439 U.S. at 367-68).

Hernandez satisfied the first Duren requirement because African Americans and Hispanics are distinctive groups in the community. United States v. Cannady, 54 F.3d 544, 547 (9th Cir. 1995). The second prong " requires proof, typically statistical data, that the jury pool does not adequately represent the distinctive group in relation to the number of such persons in the community." United States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996).

Before the district court, Hernandez produced evidence based on Fisher's Exact test showing that African Americans and Hispanics were underrepresented in the Southern District jury pool. Bound by Rodriguez-Lara, however, the district court applied the absolute disparity test and found that, in 2009, the absolute disparity on the qualified jury wheel for Hispanics in the Southern District was -2.07% (i.e., Hispanics were overrepresented by 2.07%) and for African Americans was 1.71% (i.e., African Americans were underrepresented by 1.71%). Because these percentages were far below the 7.7% threshold recognized in Rodriguez-Lara, the district court dismissed Hernandez's fair cross-section claim.

In his petition for rehearing en banc, Hernandez challenges our use of the absolute disparity test, arguing that the method unfairly favors large groups, makes it impossible for small groups to successfully assert a constitutional or Jury Selection Act violation, and has been criticized or rejected by other courts. Hernandez urges us to abandon the absolute disparity test and instead to adopt another method (or methods), such as the comparative disparity or standard deviation approaches.

B

As an initial matter, the government argues that Hernandez has waived his challenge to the absolute disparity test by not specifically raising it before the three-judge panel. Of course, we are not required to address an issue first raised in a petition for rehearing, and generally decline to do so. N. Mariana Islands v. Lizama, 27 F.3d 444, 448 (9th Cir. 1994). However, we have the authority and discretion to decide questions first raised in a petition for rehearing en banc . See Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 n.8 (9th Cir. 2001) (en banc) ( " [F]ailure to

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raise an issue before an original appellate panel does not preclude an en banc panel's jurisdiction over the issue." ). In fact, we have done so at the government's request. See Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990), supplemental op., 922 F.2d at 533 & n.1 (9th...

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