U.S. v. Shinault, 97-3061

Decision Date08 July 1998
Docket NumberNo. 97-3061,97-3061
Citation147 F.3d 1266
Parties98 CJ C.A.R. 3654 UNITED STATES of America, Plaintiff-Appellee, v. Michael D. SHINAULT, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, KS, for Defendant-Appellant.

James E. Flory, Assistant United States Attorney, Office of the United States Attorney, Topeka, KS (Jackie N. Williams, United States Attorney, and David M. Lind, Assistant United States Attorney, Wichita, KS, on the brief), for Plaintiff-Appellee.

Before TACHA, McKAY, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

At approximately 3:00 a.m. on July 11, 1995, Defendant Michael Shinault entered a Food-4-Less grocery store in Wichita, Kansas. Armed with a semi-automatic pistol, he robbed the store of $250. About an hour later, the defendant committed a similar armed robbery of a Total gas station, netting about $40. The defendant was charged with two counts of violating the Hobbs Act, 18 U.S.C. § 1951 (interfering with interstate commerce by robbery), two counts of violating 18 U.S.C. § 924(c) (using or carrying a weapon during a crime of violence), and one count of violating 18 U.S.C. § 922(g)(1) (being a felon in possession of a firearm). A jury returned a guilty verdict on all counts. The defendant now appeals his conviction on several grounds, including contentions that the trial violated his constitutional protection against double jeopardy and that underrepresentation of minority racial groups in the pool from which his jury was drawn violated his Sixth Amendment right to an impartial jury. We exercise jurisdiction under 18 U.S.C. § 1291 and affirm.

The defendant went to trial in the Wichita-Hutchinson division of the District of Kansas. After voir dire, a jury with no alternates was sworn. At that point, one of the jurors noted that she had child-care responsibilities that would make it difficult for her to serve on the jury. The district court excused that juror and, without objection from either the government or the defense, swore in another juror. The jury found the defendant guilty of all the charged crimes. At the sentencing phase, the district court applied the Armed Career Criminal enhancement to the defendant's sentence, based on his previous criminal history. The defendant's term of imprisonment totaled 562 months.

The defendant appeals on the following grounds: (1) that the jury selection procedures in the District of Kansas denied him his Sixth Amendment right to a jury drawn from a fair cross-section of the community; (2) that the unusual jury selection procedure used in this case violated the Double Jeopardy Clause of the Fifth Amendment; (3) that the court's instructions to the jury regarding his Hobbs Act crimes effectively removed one element of the crime from the jury's consideration; (4) that the court based the Armed Career Criminal sentence enhancement on insufficient evidence; (5) that Congress did not have the power to enact the Hobbs Act; and (6) that the defendant's convictions under the Hobbs Act and 18 U.S.C. § 924(c) violated the Double Jeopardy Clause by imposing multiple punishments on the defendant for the same conduct.

I. Jury Composition

The defendant first asserts that the jury selection system in the Wichita-Hutchinson division of the District of Kansas violates the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861, et seq., because it systematically excludes Asians, Blacks, and Hispanics from jury service. The Sixth Amendment grants criminal defendants the right to trial by an impartial jury. U.S. CONST. amend. VI. A jury selection system violates that right if the system does not draw its jury members from a fair cross section of the community. See Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Similarly, the Jury Act "ensure[s] that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." United States v. Bearden, 659 F.2d 590, 593 (5th Cir.1981), quoted in United States v. Contreras, 108 F.3d 1255, 1265 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 116, 139 L.Ed.2d 68 (1997). Because the Jury Act's fair cross section requirement parallels a defendant's Sixth Amendment right to trial by an impartial jury, the defendant's Jury Act challenge and his constitutional challenge are both evaluated under the Sixth Amendment standard. See United States v. Test, 550 F.2d 577, 584-85 (10th Cir.1976) (en banc) (quoting Taylor, 419 U.S. at 528-30 & n. 11, 95 S.Ct. 692).

We review the district court's factual determinations relevant to the defendant's Sixth Amendment and Jury Act challenge for clear error, see United States v. Gault, 141 F.3d 1399, 1401 (10th Cir.1998), but we review de novo the court's legal determination whether a prima facie violation of the fair cross-section requirement has occurred. See United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir.1989).

The Jury Act requires, as a procedural matter, that a defendant's motion challenging a district's jury selection process contain "a sworn statement of facts which, if true, would constitute a substantial failure to comply with the [Act]." 28 U.S.C. § 1867(d). The defendant did not file such a sworn statement in this case, though he did file a motion with this court to supplement the record on appeal with such a statement. Even though the Tenth Circuit interprets the sworn statement requirement strictly, see Contreras, 108 F.3d at 1267, in this case, "it is unnecessary to address section 1867, because the merits dispute properly raised, briefed, and argued by the parties, and carefully considered by the district court, presents an unsurmountable barrier for the appellant," United States v. Pion, 25 F.3d 18, 22 n. 3 (1st Cir.1994), regardless of the impact of Shinault's alleged procedural shortcomings on either his statutory challenge or his constitutional challenge.

In substance, the Jury Act sets forth guidelines for selecting grand and petit juries in federal courts. See 28 U.S.C. § 1861. It requires that each judicial district devise a plan for randomly selecting jurors based on voter registration rolls or lists of actual voters. See id. § 1863(b)(2). The plan adopted by the District of Kansas provides for the random selection of prospective grand and petit jurors from the official lists of actual voters in each of the counties in the six divisions in Kansas. See D. Kan. R. 38.1. The names of individuals selected from the actual voter lists are placed on a "Master Jury Wheel" for the division in which the individuals reside. The clerk of the court draws names as needed from the divisional master wheel and mails a jury qualification form to the selected individuals. The form asks the potential jurors to identify their racial and ethnic background. All individuals who return the forms, are eligible for service, and are not excused from service, are placed on the "Qualified Jury Wheel." One is ineligible to sit on a jury if he or she is not an American citizen, is not eighteen years old, has not resided in the judicial district for at least one year, cannot speak or understand English, is physically or mentally incapable of serving, or is a felon. See 28 U.S.C. § 1865(b). Moreover, certain classes of persons, such as active military personnel, are barred as exempt, and others, such as volunteer safety personnel, will be excused upon request. See id. § 1863(b)(5),(6). Once the qualified wheel has been stocked, jury venires are randomly selected from the qualified wheel. The defendant argues that this method of jury selection, particularly reliance on lists of actual voters, systematically excludes Asians, Blacks, and Hispanics from jury service in the Wichita-Hutchinson Division of the District of Kansas.

In order to establish a prima facie case that a jury selection system violates the Sixth Amendment fair cross section requirement, a defendant must demonstrate:

(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.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). If the defendant proves a prima facie violation, the government then bears the burden of proving that attainment of a fair cross section is incompatible with a significant state interest. See id. at 368, 99 S.Ct. 664.

The defendant identifies three groups that are allegedly unfairly represented in the District of Kansas's jury system: Asians, Blacks, and Hispanics. The defendant need not belong to any of these groups in order to have standing to object to their exclusion from jury service. See Taylor, 419 U.S. at 526, 95 S.Ct. 692. The government concedes that Asians, Blacks, and Hispanics are all distinctive groups.

A. Unfair Representation

1. The Relevant Statistics

The second element of the prima facie case requires the defendant to show that representation of the distinctive groups on jury venires in the District of Kansas "is not fair and reasonable in relation to their numbers in the community." Duren, 439 U.S. at 364, 99 S.Ct. 664. The defendant and the government disagree about how the three groups' "numbers in the community" should be measured. The defendant compares the minorities' percentages on the qualified wheel to the minorities' percentages among the entire voting-age population in the Wichita-Hutchinson division. The government contends that the court should compare the minorities' percentages on the qualified...

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