U.S. v. Esquivel

• Citation: 88 F.3d 722
• Decision Date: 01 July 1996
• Docket Number: No. 94-50603,94-50603
• Parties: 44 Fed. R. Evid. Serv. 1390, 96 Cal. Daily Op. Serv. 4910, 96 Daily Journal D.A.R. 7900 UNITED STATES of America, Plaintiff-Appellee, v. Bertha Alicia ESQUIVEL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 722

88 F.3d 722

44 Fed. R. Evid. Serv. 1390, 96 Cal. Daily Op.

Serv. 4910,

96 Daily Journal D.A.R. 7900

UNITED STATES of America, Plaintiff-Appellee, v. Bertha Alicia ESQUIVEL, Defendant-Appellant.

No. 94-50603.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1995.

Decided July 1, 1996.

Stephen R. Scarborough, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant.

Roger Haines and Alberto A. Arevalo, Assistant United States Attorneys, San Diego, California, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Judith N. Keep, Chief District Judge, Presiding. D.C. No. CR-94-00773-JNK.

Before: BOOCHEVER, T.G. NELSON and KLEINFELD, Circuit Judges.

Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge BOOCHEVER; Concurrence by Judge KLEINFELD.

ORDER

The opinion filed on January 30, 1996, is withdrawn.

The panel has voted to deny appellant's petition for rehearing. Judges T.G. Nelson and Kleinfeld vote to reject the suggestion for rehearing en banc and Judge Boochever so recommends.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

T.G. NELSON, Circuit Judge:

Bertha Alicia Esquivel was arrested on June 2, 1994, at the Port of Entry at San Ysidro, California, when port authorities discovered a Mexican national hidden in Esquivel's car. A federal grand jury issued a one-count indictment against Esquivel. The indictment charged Esquivel with bringing an illegal alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and (iii).

Esquivel made a motion to dismiss the indictment on the ground that the grand jury which issued the indictment was selected in an unconstitutional manner. The motion was denied, and after a two-day trial, the jury returned a guilty verdict. Esquivel appeals the district court's denial of her motion to dismiss. We AFFIRM.

DISCUSSION

I. Jury Selection

A. Background

Under the Sixth Amendment of the United States Constitution and the Federal Jury Service and Selection Act of 1968 ("JSSA"), 28 U.S.C. §§ 1861-78, a criminal defendant is guaranteed the right to be tried by an impartial jury drawn from a representative cross section of the community. This constitutional guarantee applies to both grand and petit juries. The Sixth Amendment provides, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. Amend. VI. This guarantee, as interpreted by the Supreme Court, "necessarily contemplates an impartial jury drawn from a cross-section of the community." Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). However [t]his does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.

Id.

In 1968, Congress enacted the JSSA in response to numerous complaints of racial discrimination in the selection of potential jurors. ¹ The stated policy of the JSSA is 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. Further, Congress set forth the method by which the stated policy was to be implemented. In section 1863(b)(2) of the JSSA, Congress designated voter registration lists (or the lists of actual voters) as the main source for selecting potential jurors. However, Congress also provided that the districts could prescribe other sources of names in addition to voter lists if necessary. Id.

There have been two types of constitutional challenges to jury selection methods. The first is an equal protection challenge under the Fourteenth Amendment, and the second is a fair representation challenge under the Sixth Amendment. In order to establish a prima facie equal protection violation in the jury selection process, an appellant "must show that the procedure employed resulted in substantial underrepresentation 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).

In Castaneda, the Supreme Court articulated a three-step process for establishing a prima facie equal protection case: (1) establish that the group, of which the appellant is a member, is "one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied;" (2) prove the degree of underrepresentation "by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time;" and (3) discriminatory intent. Id. at 494, 97 S.Ct. at 1280. The third step, discriminatory intent, may be established by showing that a selection procedure "is susceptible of abuse or is not racially neutral," thus supporting the presumption of discrimination raised by the statistical showing under step two. Id. "Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." Id. at 495, 97 S.Ct. at 1280. In order to rebut the presumption of unconstitutional action, the state must show " 'that permissible racially neutral selection criteria and procedures have produced the monochromatic result.' " Id. at 494, 97 S.Ct. at 1280 (quoting Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972)).

In contrast, a prima facie case for establishing a Sixth Amendment, fair cross-section violation does not require the appellant to prove discriminatory intent or require that the appellant be a member of the "distinct," excluded group. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). In Duren, the Supreme Court formulated a three-pronged test for establishing a prima facie violation of the Sixth Amendment fair cross-section requirement:

(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.

Id. at 364, 99 S.Ct. at 668.

B. Sixth Amendment

Esquivel challenges the constitutionality of her indictment on the ground that the jury selection procedure in the Southern District of California violates the fair cross-section requirement of the Sixth Amendment. She argues that although drawing potential jurors from voter registration lists (or the lists of actual voters) may comply with the JSSA, the exclusive use of those lists result in an underrepresentation of Hispanics in the jury pool.

Esquivel has met the first prong of the Duren test. Hispanics have been recognized as a "distinctive," "cognizable" group for purposes of the fair cross-section analysis. Castaneda, 430 U.S. at 482, 97 S.Ct. at 1274.

The second prong of the Duren test 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. We have been confronted with this issue before and have favored the "absolute disparity" test for measuring the representativeness of a distinctive group in a jury pool. United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989). Absolute disparity is determined "by taking the percentage of the group at issue in the total population and subtracting from it the percentage of that group that is represented on the master jury wheel." Id.

Esquivel presented census information which indicated that in 1990, 22.3 percent of the population in San Diego and Imperial Counties was Hispanic. Based on the census data from 1980 and 1990, Esquivel's expert witness on demographics, John R. Weeks, estimated that in 1993, 24.2 percent of the population in San Diego and Imperial Counties was Hispanic. Esquivel then proffered the results of a 1993 study conducted by the Federal Defenders of San Diego, Inc., which indicated that Hispanics comprised 9.7 percent of the master wheel from which juries were selected. Thus, according to the statistics presented, the absolute disparity of Hispanics in the jury pool in 1993 was 14.5 percent (24.2 - 9.7). Esquivel argues that a 14.5 percent absolute disparity demonstrates a statistically significant underrepresentation of Hispanics which shifted to the Government the burden of showing that a significant state interest is manifestly and primarily advanced by the mechanism causing the underrepresentation. Duren, 439 U.S. at 367-68, 99 S.Ct. at 670-71.

In opposition, the Government argued in the district court that the statistical evidence presented by Esquivel is flawed because it used the total population of Hispanics in the counties rather than the number of Hispanics eligible to serve as jurors. The district judge found that Esquivel's proffered statistic of absolute disparity between the number of Hispanics on the master jury list and the number of Hispanics in the community did "not contemplate the number of those who are not eligible for...