U.S. v. Rodriguez-Lara
| Decision Date | 26 August 2005 |
| Docket Number | No. 04-10113.,04-10113. |
| Citation | 421 F.3d 932 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis Manuel RODRIGUEZ-LARA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Melody M. Walcott, Assistant Federal Public Defender, Fresno, California, for the defendant-appellant.
David Gappa, Assistant U.S. Attorney, Fresno, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-03-05101-1-OWW.
Before: LAY,* B. FLETCHER, and HAWKINS, Circuit Judges.
Defendant-appellant Luis Manuel Rodriguez-Lara ("Rodriguez"), an alien convicted of reentry after deportation, appeals the district court's denial of his motion to appoint an expert to assist him in pursuing his equal protection and fair cross-section challenges to the composition of the jury pool in the Fresno Division of the Eastern District of California. Rodriguez also claims that the district court erred in its application of the U.S. Sentencing Guidelines and that the court violated his Sixth Amendment rights by enhancing his sentence in violation of Apprendi v. New Jersey and its progeny.
Given the extent of the fair cross-section showing Rodriguez was able to develop even without the help of an expert, we hold that under the circumstances reasonably competent counsel would have required the services of an expert for a paying client, and the lack of an expert prejudiced Rodriguez. The district court therefore abused its discretion in denying Rodriguez's motion for the appointment of an expert. Although Rodriguez's Sixth Amendments rights were not violated by the judge's use of a prior conviction to enhance Rodriguez's sentence, the district court committed plain error in applying the acceptance-of-responsibility reduction under the Sentencing Guidelines. We therefore vacate Rodriguez's sentence and remand for resentencing and the appointment of an expert.
Under the Jury Selection and Service Act of 1968 (JSSA), 28 U.S.C. § 1861 et seq., each federal judicial district must devise a plan for random selection of grand and petit jurors. This plan must be designed to ensure that litigants have grand and petit juries selected from a fair cross-section of the community in the applicable district or division of the district, and that no prospective jurors are subject to discrimination on any of several enumerated grounds. Id. §§ 1861-63. The statute contemplates that each district or division will use voter registration lists or the lists of actual voters of the political subdivisions within that district or division, but the statute also requires that jury selection plans "prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights" of fair cross-section and anti-discrimination. Id. § 1863(b)(2).
The jury plan for the Eastern District of California provides that names of prospective jurors for the master jury wheel are to be drawn randomly from voter registration records for all counties within the relevant division of the district. Amended Plan for the Random Selection of Grand and Petit Jurors, General Order No. 374 (E.D.Cal. Mar. 22, 2000), at 3 (hereinafter "Amended Plan").1 The Fresno Division consists of Merced, Mariposa, Madera, Fresno, Inyo, Kings, Tulare, Kern, Calaveras, Stanislaus, and Tuolumne Counties. Id. at 1. Names from the master jury wheel are drawn randomly as necessary to fill the qualified jury wheel (which consists of the names of individuals eligible for jury service and not exempt or excused); names from the qualified wheel are drawn randomly as necessary to select the individuals to be summoned for service on grand and petit juries. Id. at 8, 12. The qualifications for service are: United States citizenship; eighteen years of age; residence within the judicial district for one year; ability to read, write and understand English; ability to speak English; mental and physical capability to render satisfactory service; and no charge pending or conviction for a crime punishable by imprisonment for more than one year (absent restoration of civil rights). Id. at 10; 28 U.S.C. § 1865(b). Members of the armed forces in active service, members of police and fire departments, and public officers actively engaged in the performance of their official duties are exempt from service. Amended Plan at 11; 28 U.S.C. § 1863(b)(6). Individuals who are over seventy years of age, who have served as a federal grand or petit juror within the preceding two years, who serve as volunteer safety personnel, or for whom service would constitute an "undue hardship or extreme inconvenience" (for example, because of distance from the court or family emergency), may be excused from service. Amended Plan at 10-11.
In March 2003, Rodriguez was charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. After successfully moving to represent himself, Rodriguez moved to dismiss the indictment, claiming that Hispanics were underrepresented in the jury wheel of the Fresno Division of the Eastern District of California, in violation of the fair cross-section requirement of the Sixth Amendment and of the equal protection guarantee of the Fifth Amendment.2 Relatedly, Rodriguez moved the court to provide him with jury statistics compiled by the court on forms designated "JS-12" (commonly known simply as "JS-12s"), and to appoint a demographic expert to assist him in substantiating his claims concerning the systematic underrepresentation of Hispanics in the jury pool.
The court denied these motions without prejudice, and Rodriguez renewed them, this time attaching supporting exhibits including (in relevant part) a 1992 declaration prepared for another case by an expert involved in several jury underrepresentation cases; the 1992 jury selection plan for the Eastern District of California; several JS-12s from the early 1990s; and 2000 census population data for the Fresno Division. The district court expressed doubt about the viability of Rodriguez's claims but nonetheless ordered that Rodriguez be provided with a more recent JS-12.
Three days later, Rodriguez again renewed his motion to dismiss, now including the 2003 JS-12 statistics (provided by the court) reflecting demographics both for the group of individuals who returned juror questionnaires after being drawn from the master jury wheel, and for the group of individuals placed into the qualified jury wheel. Using this data, Rodriguez alleged a substantial disparity between the proportion of Hispanics in the subset of the population old enough to serve on federal juries (the "age-eligible" population) and the proportion of Hispanics in the qualified jury wheel.3 Incorporating some of the arguments from the expert declaration he had attached to his second motion, Rodriguez asserted that the reason for the disparity was the Fresno Division's use of voter lists as the sole source of names for the master jury wheel.
The day before trial, the court denied Rodriguez's motions for the final time. In the view of the district court, Rodriguez was required to show a disparity between Hispanic representation in the qualified jury wheel and Hispanic representation in the subset of the population meeting all the federal juroreligibility requirements (the "jury-eligible population"), not merely the general or age-eligible population, and the court characterized the government's "supplemental voter information exhibit" as showing that for a portion of the Fresno Division, the jury-eligible population was approximately 17% Hispanic even though the total population was approximately 30% Hispanic.4 The court noted that challenges to jury pool composition in the Eastern District of California had been rejected by the Ninth Circuit in 1996 and by the Eastern District in 2003.5 According to the court, the "best way" to determine if Rodriguez's fair cross-section and equal protection rights were being violated The court further observed that "in the last 15 to 20 cases, we get very, very strong Hispanic representation." Not "see[ing] anything more that has been submitted than when we started this process," and because of "the insufficiency of the factual showing which didn't require an expert," the court denied Rodriguez's motions to dismiss and to have an expert appointed.6
Rodriguez was convicted after a one-day trial.
At sentencing, the court applied a 16-level enhancement because Rodriguez had been previously deported following a conviction for a drug trafficking offense — a state felony conviction for transport of methamphetamine — for which he had received a sentence greater than 13 months. See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(I) (2002). After Rodriguez expressed deep regret for returning to the United States, the court gave a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), but declined to give a third level because the case went to trial and therefore the acceptance of responsibility was not timely (though the judge denied that he was penalizing Rodriguez for going to trial). Rodriguez did not object to the judge's failure to give a three-level reduction. Applying the resulting sentencing range, the court sentenced Rodriguez to 77 months imprisonment, along with a special assessment of $100 (waived) and three years of supervised release.
Rodriguez timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.
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