U.S. v. Rodriguez, 77-5691

• Decision Date: 01 February 1979
• Docket Number: No. 77-5691,77-5691
• Citation: 588 F.2d 1003
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1003

588 F.2d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Pedro Pablo RODRIGUEZ, Defendant-Appellant.

No. 77-5691.

United States Court of Appeals Fifth Circuit.

Feb. 1, 1979.

Rehearing Denied March 7, 1979.

Richard M. Gale, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., Hugh F. Culverhouse, Jr., Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and THORNBERRY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The Southern District of Florida again faces a challenge ¹ of its jury selection procedures in this appeal from a conviction for importation of ² and possession with intent to distribute cocaine. ³ Appellant Pedro Pablo Rodriguez levels a combination constitutional and statutory attack on the make-up of his grand and petit juries, asserting that (1) Latin American registered voters were systematically excluded from the master wheel ⁴ and (2) the statutory procedures for emptying and refilling the master wheel had not been complied with. He also complains that the District Judge improperly denied his requested instruction regarding specific intent under the importation count. We affirm.

On March 14, 1977, appellant arrived at the Miami International Airport after a short trip to Cali, Colombia. When he went through customs, an agent discovered cocaine secreted in his suitcase. Although he protested that he knew nothing about the cocaine ⁵ and insisted that the bag could not be his, customs agents found that the baggage tags appellant carried matched those on the suitcase. He was then placed under arrest.

Prior to trial, counsel filed several motions to dismiss the indictment. ⁶ After two evidentiary hearings, the Magistrate filed a report, which included findings of fact, conclusions of law, and a recommendation that the District Court deny each motion. Appellant made specific objections to the report and the District Judge accordingly reconsidered the challenged portions. Finding the Magistrate's findings and recommendation correct, he denied appellant's motions.

Having been unsuccessful in dismissing his indictment, appellant stood trial before a jury ⁷ and was convicted on both counts. On appeal, Rodriguez first complains that the Southern District's jury selection plan ⁸ has denied him equal protection and due process by systematically and arbitrarily excluding many registered voters who were born in Spanish-speaking countries. Because a tremendous number of these persons registered to vote after the compilation of the 1972 voter registration lists, ⁹ he argues, maintenance of a fair cross section of the community required supplementation of the wheel. ¹⁰ Thus, his having been tried by a jury chosen from this out-of-date wheel warrants reversing his conviction.

The Supreme Court has often instructed that "it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, . . . ." Hernandez v. Texas, 1954, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866, 869; Castaneda v. Partida, 1977, 430 U.S. 482, 492, 97 S.Ct. 1272, 1279, 51 L.Ed.2d 498, 509. While recognizing that an official act does not violate constitutional principles Solely because it has a racially disproportionate impact, Washington v. Davis, 1976, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597, 607, the Court has warned that a facially neutral state action may produce "a clear pattern" of discrimination, "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Corp. 1977, 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450.

The Supreme Court has established a two part test for examining alleged discrimination in jury selection. Hernandez, supra 347 U.S. at 479, 74 S.Ct. 667. Under it, appellant must first prove that the group of newly registered voters ¹¹ who were born in Spanish-speaking countries constitute a distinct, separate class. ¹² Id. Next, he must show discriminatory underrepresentation "by comparing the proportion of the group in the total population to the proportion called to serve . . . over a significant period of time." Castaneda, supra 430 U.S. at 494, 97 S.Ct. at 1280. See also, Norris v. Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; United States v. De Alba-Conrado, 5 Cir., 1973, 481 F.2d 1266. ¹³

In applying the test to the facts before us, we find that because appellant has made uncertain showings under both steps we cannot uphold his claim. First, he has presented no evidence upon which we can find that the group he has identified constitutes a cognizable class for the purpose of this sort of jury challenge. He merely asserts that his statistics ¹⁴ which, if reliable, indicate that the number of registered voters of "Latin origin" has increased over 200% Since the master wheel was last filled indicate purposeful discrimination and, therefore, lead to the conclusion that the group is "treated as second-class citizens." This naked claim, however, does nothing to guide us to a finding that appellant has identified a single cognizable group rather than several E. g. Cuban-Americans, Puerto Ricans, Argentine-Americans, Spanish-Americans, etc. ¹⁵ As the magistrate stated in her report, "there (is) simply no evidence upon which this Court could base a finding that persons of such diverse national origins as Cubans, Mexicans, and Puerto Ricans possess such similar interests that they constitute a cognizable group . . . ." ¹⁶

Since, therefore, we find that appellant has not proved the existence of a separate class, ¹⁷ his statistics hold less meaning. ¹⁸ The fact that his identified group grew drastically during the four-year period bears no more relevance to a showing of discrimination than do figures showing the proportion of growth of the entire voter population. No names were added to the wheel between 1973 and 1977. Consequently, newly-registered persons of Mexican, Canadian, Texas, English, and Polish descent were all temporarily excluded from the master wheel. ¹⁹

Finally, we point out that appellant does not attack the composition of the master jury wheel as of the time it was filled in 1973. He instead asserts that during the statutory period Miami's population changed so radically that it rendered the composition of the wheel constitutionally infirm. In making his complaint that the wheel should have been supplemented in response to such change he does not take into account the Supreme Court's opinion in Hamling v. United States, 1974, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590. Faced in that case with a claim similar to that appellant raises today, ²⁰ the Court observed that

The master wheel . . . is periodically emptied and then refilled with names from the available voter lists. Persons added to the voter lists subsequent to one filling of the jury wheel are therefore not added to the wheel until the next refilling. But some play in the joints of the jury-selection process is necessary in order to accommodate the practical problems of judicial administration. Congress could reasonably adopt procedures which, while designed to assure that "an impartial jury (is) 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); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), at the same time take into account practical problems in judicial administration. Unless we were to require the daily refilling of the jury wheel, Congress may necessarily conclude that some periodic delay in updating the wheel is reasonable to permit the orderly administration of justice. Invariably of course, as time goes on, the jury wheel will be more and more out of date, especially near the end of the statutorily prescribed time period for updating the wheel. But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited "Purposeful discrimination " Does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters. Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967).

(Emphasis added).

Appellant next claims that the selection of his petit jury violated28 U.S.C.A. § 1863(b)(4), which requires "periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years." ²¹ He has shown that the master wheel was filled on April 12, 1973, and that his trial began almost four years and four months later on August 29, 1977. ²²

We must first point out that appellant is relying on a purely statutory right he alleges no constitutional violation in connection with this particular claim. His remedy, therefore, is statutorily defined, and he must comply with statutory requirements in order to obtain relief. Congress has specified those requirements in 28 U.S.C.A. § 1867(a) and (d), ²³ and we have consistently enforced them very strictly. See United States v. Smith, 588 F.2d 111; United States v. Kennedy, 5 Cir., 1977, 548 F.2d 608, 613, Cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140; United States v. De Alba-Conrado, footnoted Supra at 1269.

An examination of § 1867 reveals that a criminal defendant who challenges the procedures used in selecting a Petit jury must (1) within prescribed time limits move to stay the proceedings and (2) present a sworn statement of facts, which, if true, would prove a violation of the Act. Although the language of subsection (a), in allowing a defendant to "move to dismiss the indictment or stay the proceedings against him"...