United States v. Duran De Amesquita
| Decision Date | 21 March 1984 |
| Docket Number | 80-497-Cr-WMH,83-460-Cr-EBD,No. 83-453-Cr-LCN,83-598-Cr-CA,82-327-Cr-EBD,83-580-Cr-JE,83-581-Cr-LCN,83-720-Cr-LCN,83-660-Cr-EPS,83-857-Cr-JWK and 84-10-Cr-JE.,83-453-Cr-LCN |
| Citation | 582 F. Supp. 1326 |
| Parties | UNITED STATES of America v. Avelina DURAN DE AMESQUITA UNITED STATES of America v. Aldo ALVAREZ UNITED STATES of America v. Arturo COBO UNITED STATES of America v. Robert WELLS, et al. UNITED STATES of America v. Robert WELLS, et al. UNITED STATES of America v. Daniel Neal HELLER UNITED STATES of America v. Euardo SERVANDO-GARCIA, et al. UNITED STATES of America v. Samuel QUINLAND, et al. UNITED STATES of America v. Leon SHIPLEY UNITED STATES of America v. Brenda PEARSALL, et al. UNITED STATES of America v. Leopold PLANELL, et al. |
| Court | U.S. District Court — Southern District of Florida |
Stanley Marcus, U.S. Atty., by Michael Patrick Sullivan, Asst. U.S. Atty., Miami, Fla., for plaintiff.
William P. Cagney III, Joseph D. Beeler, Miami, Fla., for defendants.
These cases were consolidated for the purpose of the above judge's consideration of motions to dismiss the indictments for alleged constitutional and statutory violations in the selection of grand and petit jurors in the Miami division of this Court.
All of the defendants in these cases were indicted by Miami grand jurors and all will be tried in Miami absent dismissal of the indictments.
All of the motions were timely filed under 28 U.S.C. § 1867(a).
The defendants advance equal protection as well as Sixth Amendment "fair cross-section of the community" arguments in their constitutional challenges.1 They do not allege purposeful discrimination. The emphasis is on the structure of the venire. The defendants take the position that there is underrepresentation of two cognizable groups due to the systematic exclusion of those groups in the jury selection process. That process derives the jury pools from voter lists not supplemented by any other source or sources of names. The alleged cognizable groups are "hispanics" and blacks.2
The prima facie tests for equal protection and Sixth Amendment fair cross-section claims are almost identical. Davis v. Zant, 721 F.2d 1478 at 1482 (11th Cir.,1983).3
The Supreme Court outlined the method for proving an equal protection violation in Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977):
The first step is to establish that the group is one that is a recognizable, distinct class, ... Next, the degree of underrepresentation must be proved, 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 ... Finally, ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.
A successful fair cross-section claim requires the following proof:
The defendant 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 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, 668, 58 L.Ed.2d 579 (1979).
With respect to "hispanics," movants' proofs fail the first prong of both tests. Movants' evidence concerning blacks in this division founders on the second prong. The motions to dismiss must therefore be denied.
The evidence in this case consists of defendants' exhibits one through ten, comments thereon, and expert opinion that "hispanics" constitute a cognizable group in the Miami division of the Court.
The threshhold question on the claim alleging underrepresentation of "hispanics" is whether "hispanics" constitute a cognizable class of persons.
Defendants urge that because the latest census figures now provide information about the citizenship of those persons with "hispanic" surnames, defendants' position (bearing upon eligibility to serve on grand and petit juries) that "hispanics" constitute a cognizable class is much stronger than was the position of previous challengers who attempted to establish that "latins" constituted a distinctive group in the community.
Whether a described class of persons is sufficiently distinct and cognizable for equal protection or fair cross-section analysis is a question of fact. Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954). Apparently the only case that has suggested that "latins" (hispanics) constitute a cognizable class is Judge Hatchett's opinion in United States v. Cabrera-Sarmiento, 533 F.Supp. 799, 804 (S.D.Fla.1982). The Judge made no underlying findings of fact, but wrote, "I am convinced that Latins in the Miami area meet the criteria" set forth in Castaneda v. Partida, supra, 430 U.S. at 494, 97 S.Ct. at 1280 (). Id. Cf. United States v. Musto, 540 F.Supp. 346, 356 (D.N.J.1982) (). Moreover, Judge Hatchett found that the defendants had failed to prove that the proportion of "latins" in the total population eligible to serve as jurors was significantly greater than the proportion called to serve as grand jurors and appointed as grand jury forepersons over a significant period of time. The Judge noted that "defendants were unable to provide any officially recognized figures showing the Latin population broken down by age, citizenship and English language ability." Id.
As far as this judge is aware, no one has ever presented an adequate factual basis to establish "hispanics" as a cognizable class.
For "hispanics" to constitute a cognizable class, it must be shown that there exists a cohesiveness of attitudes, ideas or experience which distinguishes the class from the general social milieu; that a community of identifiable interests is present amongst "hispanics" which is not shared by other segments of the populace. United States v. Test, 550 F.2d 577, 591 (10th Cir.1976).
If the proposed class were "Cuban-Americans," or "Spanish-Americans," or "Puerto Rican-Americans," the mental image of the "cognizable class" would be easy to discern. Mexican-Americans, for example, were held to be a cognizable class in United States v. Test, 550 F.2d 577 (10th Cir.1976). But to lump persons from so many countries (even continents) together as a distinct class requires the exercise of considerable philosophical imagination. I do not believe that persons of Nicaraguan or Salvadoran heritage and persons of Cuban heritage could comfortably equate their cultural backgrounds and attitudes one to another. See, United States v. Rodriguez, 588 F.2d 1003, 1007 (5th Cir.1979). Persons of Puerto Rican heritage could not comfortably equate their backgrounds and attitudes to those persons of Mexican heritage.
If persons with "hispanic" surnames could be established as a cognizable class in the Miami district, and such has not been established in this case,4 it would remain to be shown that the proportion of "hispanics" in the total population of the Miami division eligible to serve as jurors is significantly greater than the proportion called to serve as jurors over a significant period of time.
As in Cabrera-Sarmiento, defendants are unable to show recognized figures of the "hispanic" population broken down by age and English language ability.
The Court finds that the statistical evidence presented in Defendants' Exhibit 4, Analysis Set C, may be relied upon by the Court. The independent survey conducted on behalf of the defendants is a reliable survey. However, defendants necessarily seek to make the use of Spanish surnames the bedrock of their challenge. The foundation is too porous. Because the Court cannot appraise the validity of the jury selection system by considering that all persons of Spanish surnames have a community of interests not shared by other segments of the populace, the defendants are unable to make out a case for "hispanics" as a cognizable group. There are just too many José Gonzalezes, Cardozos, Felixes and Ferres whose attitudes and experiences do not coalesce with those of other José Gonzalezes, Cardozos, Felixes and Ferres to allow the Court to consider them all to be members of one cognizable class for the purposes here discussed.
It is quite clear that there is in the Miami area a large number of the various kinds of people who are often referred to as "hispanics." It is equally clear under the law that a court cannot act upon only an assumption of disproportionate representation. The factual support for the "hispanic" attack is insufficient to establish the threshhold requirement of a cognizable class under either Fifth or Sixth Amendment analysis.
Finally, even if the Court accepted movants' position that "hispanics" are a sufficiently distinct group in this community, the Court would still conclude that "hispanic" underrepresentation on Miami jury venires is not constitutionally significant under either test. See Defendants' Exhibit 4, Analysis Set C and discussion, infra.
Unlike "hispanics," there is no question that blacks are a constitutionally cognizable class. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). Through the use of statistical analysis and the testimony of expert witnesses, movants have attempted to demonstrate that members of the class are underrepresented in the Master Jury Wheel of this division drawn on August 11, 1981, and that such underrepresentation is of a constitutionally violative dimension. Movants' proofs, however, fall short of a prima facie case.
First, as defendants concede, any disparity between...
To continue reading
Request your trial
-
Valle v. State
...for equal protection analysis. Accord, United States v. Rodriguez, 588 F.2d 1003 (5th Cir.1979). See also United States v. Duran de Amesquita, 582 F.Supp. 1326 (S.D.Fla.1984) (holding that "hispanics" do not constitute a recognizable class). Appellant also urges a due process violation in t......
-
Texas Employers' Ins. Ass'n v. Guerrero
...cultural differences exist among Cubans, Puerto Ricans, Mexicans, Nicaraguans, Salvadorans and others. United States v. Duran de Amesquita, 582 F.Supp. 1326, 1328 (S.D.Fla.1984). I would hold under the state of this record that the appellant has not met its heavy burden of showing an improp......
-
US v. Yonkers Contracting Co., Inc., 87 Cr. 0559 (GLG).
...577, 586-587 & n. 8 (10th Cir. 1976); United States v. Freeman, 514 F.2d 171, 173 (8th Cir.1975). 22 E.g., United States v. Duran de Amesquita, 582 F.Supp. 1326, 1331 (S.D.Fla.1984); United States v. Brummitt, 503 F.Supp. 859, 861 (W.D. Tex.1980), aff'd, 665 F.2d 521, 529 (5th Cir. 1981), c......
-
Bailey v. State
...smaller the allegedly excluded group, the less appropriate is comparative disparity analysis). Compare United States v. Duran De Amesquita, 582 F.Supp. 1326, 1330-31 (S.D.Fla.1984) (comparative analysis will be inappropriate if the group comprises more than 10% of the community population) ......