883 F.2d 1025 (9th Cir. 1989), 88-3242, U.S. v. Young

Docket Nº:88-3242.
Citation:883 F.2d 1025
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Henry YOUNG, Defendant-Appellant.
Case Date:August 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1025

883 F.2d 1025 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Henry YOUNG, Defendant-Appellant.

No. 88-3242.

United States Court of Appeals, Ninth Circuit

August 11, 1989

         Editorial Note:

         This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

        Decided Aug. 15, 1989.

        D.Mont.

        AFFIRMED IN PART, VACATED IN PART.

        On Appeal From the United States District Court for the District of Montana

        Paul G. Hatfield, District Judge, Presiding

        Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and BEEZER, Circuit Judges.

        MEMORANDUM [**]

        John Henry Young appeals his conviction on several counts arising out of an altercation between Young and a federal officer. We affirm in part and vacate in part.

        I

        On March 23, 1988, Young and his cousin, James Snell, were shooting gophers on the Fort Belknap Indian Reservation in Montana. Two Bureau of Indian Affairs police officers stopped Snell's automobile for running a stop sign. One of the officers, Sergeant Oats, recognized Young as the subject of an outstanding tribal warrant. When Oats attempted to arrest Young, a struggle ensued over possession of Young's rifle before the officers subdued him.

        Young was indicted on three charges: I) assault on a federal officer; II) possession of a firearm as a convicted felon, and III) use of a firearm during a crime of violence. 18 U.S.C. §§ 111; 922(g); 924(c). The jury convicted him on all three counts, and he was sentenced to 120 months imprisonment each for counts I and II, and a mandatory five-year consecutive term on count III. Young timely appeals the final judgment of the district court. Fed.R.Crim.P. 4(b). We have jurisdiction, and review these questions of law de novo.

        II

        Young claims that his equal protection rights were violated because the jury venire contained an insufficient number of Native Americans. This claim is frivolous.

        The transcript of voir dire indicates that approximately 6 persons, out of a venire of 31, 1 replied affirmatively to counsel's question as to whether they were partly or entirely of Native American descent. Following voir dire, Young's attorney objected to the venire on grounds that "the jury of [Young's] peers would require that a sizable number of Native Americans be present on the--on the jury." The objection was overruled.

        To show a prima facie violation of the requirement that a jury venire be a fair cross-section of the community, as a predicate for either a statutory or constitutional claim, Young 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...

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