United States v. Erickson

• Decision Date: 02 June 2021
• Docket Number: No. 20-1861,20-1861
• Citation: 999 F.3d 622
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Eli ERICKSON, also known as Black, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

999 F.3d 622

UNITED STATES of America, Plaintiff - Appellee

v.Eli ERICKSON, also known as Black, Defendant - Appellant

No. 20-1861

United States Court of Appeals, Eighth Circuit.

Submitted: February 18, 2021

Filed: June 2, 2021

Rehearing and Rehearing En Banc Denied July 13, 2021

Cameron J. Cook, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Pierre, SD, Connie Larson, Diana Jo Ryan, Assistant U.S. Attorneys, Sioux Falls, SD, for Plaintiff - Appellee.

Eli Erickson, Pro Se.

John Stephen Rusch, RENSCH LAW OFFICE, Rapid City, SD, for Defendant - Appellant.

Before LOKEN, BENTON, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

On November 7, 2019 a jury in the District of South Dakota convicted Eli Erickson of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and several firearm offenses. He filed two post-trial motions. The district court¹ denied both and sentenced Erickson to 188 months’ imprisonment and a five-year term of supervised release. He now appeals his conviction. We affirm.

I.

Erickson, who is Native American, has lived on the Rosebud Indian Reservation for most of his life. The Central Division of the District of South Dakota, where Erickson's trial took place, encompasses parts of the Rosebud Indian Reservation, Crow Creek Indian Reservation, and Cheyenne River Indian Reservation. Although the 2015 United States Census Bureau Population Table for the District of South Dakota states that 25% of the Central Division's population is "American Indian or Alaska Native," no Native Americans were seated on Erickson's jury.²

A.

Erickson filed a motion for new trial, asserting that the absence of Native Americans on his jury deprived him of "his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 536, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The district court denied the motion. We review this issue de novo. United States v. Reed, 972 F.3d 946, 953 (8th Cir. 2020) ; see United States v. Rodriguez, 581 F.3d 775, 789 (8th Cir. 2009) ("Allegations of racial discrimination in jury pools involve mixed questions of law and fact, and receive de novo review."). To establish a prima facie violation of the Sixth Amendment's fair cross section requirement, Erickson must show that the representation of Native Americans in the Central Division's jury pool "is not fair and reasonable in relation to the number of such persons in the community," and "that this underrepresentation is due to systematic exclusion of the group in the jury-selection process," among other elements. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

The Central Division selects potential jurors in accordance with the District of South Dakota's 2018 Plan for the Random Selection of Grand and Petit Jurors. Under the Plan, "all jurors [are] selected at random from the list of registered voters provided by the office of the South Dakota Secretary of State." Nine of the 51 qualified jurors who reported for service on the day of jury selection for Erickson's trial, or 17.6%, identified their race as American Indian or Alaska Native. The district court excused six of these potential jurors for cause, and the government exercised peremptory challenges to remove two others.³

On appeal, Erickson does not challenge the for-cause or peremptory strikes.

Although we know the number of Native Americans who showed up for jury selection in Erickson's case, the record contains no evidence about the percentage of potential jurors on the Central Division's master jury wheel who identified as American Indian or Alaska Native at the time of Erickson's trial. It is the number of Native Americans in the jury pool, not the number who showed up for jury selection in a particular case, that is relevant to assessing the merits of a fair cross section challenge. See United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (using "the percentage of [American] Indians on the list of persons eligible for petit jury service" to assess a fair cross section claim); Euell v. Wyrick, 714 F.2d 821, 823 (8th Cir. 1983) (explaining that to resolve a fair cross section challenge we examine "the percentage of [the underrepresented group] who served on venires during the time period in which the defendant was tried"); see also Berghuis v. Smith, 559 U.S. 314, 323, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010) (relying on "the percentage of [the underrepresented group] in the jury pool ... in the six months leading up to [the defendant's] trial" to evaluate a fair cross section challenge). Because Erickson has not presented evidence about the number of Native Americans in the Central Division's jury pool, he necessarily has failed to show that their representation in that pool was "not fair and reasonable in relation to the number of [Native Americans] in the community." Duren, 439 U.S. at 364, 99 S.Ct. 664.

But even assuming Native Americans are underrepresented in the Central Division's jury pool, as the district court suggests they may be, Erickson has not shown the underrepresentation "is due to systematic exclusion of the group in the jury-selection process." Id. He makes two arguments in support of his assertion that Native American are systematically excluded from the jury pool. The first is that the Central Division's use of voter registration polls to populate the master jury wheel excludes Native Americans because they register to vote in a lower proportion than the general population.

This first argument is foreclosed by our precedent. The practice of using voter registration rolls to compile the master jury wheel is expressly permitted under the Jury Selection and Service Act of 1968, which governs the manner for selecting federal jurors. See 28 U.S.C. § 1863(b)(2). And we have consistently held "that a jury selection plan based on registered voter lists withstands constitutional scrutiny unless there is [otherwise] a showing of systematic exclusion of [the underrepresented group] in the jury selection process." Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) ; see Clifford, 640 F.2d at 156 ("The mere fact that one identifiable group of individuals votes in a lower proportion than the rest of the population[, standing alone,] does not make a jury selection system illegal or unconstitutional."). To demonstrate systematic exclusion, Erickson must provide additional evidence in support of his claim, such as "a defect in the [jury selection] process itself that serves to exclude [the underrepresented group]," "that the voter registration ... requirements impose ... discriminatory qualifications on applicants," or "that the administration of the juror selection plan is discriminatory." United States v. Warren, 16 F.3d 247, 252 (8th Cir. 1994) ; see United States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998) (suggesting that systematic exclusion may be established by presenting evidence that an underrepresented group "face[s] obstacles in the voter registration process"). On this record Erickson has not provided any explanation for how the Central Division's reliance on voter registration rolls otherwise operates to systematically exclude Native Americans from criminal jury pools. As a result, he is missing another required element of his prima facie case.

Erickson's second argument concerning systematic exclusion is that "the remote, small and cohesive [nature of] Indian Reservations located in Central South Dakota" makes it impossible to empanel "a jury drawn from a fair cross section of [his] community." Taylor, 419 U.S. at 527, 95 S.Ct. 692. But this is a challenge to the final composition of the jury, rather than to the composition of the jury pool. The Sixth Amendment's fair cross section requirement applies only to the latter. In Taylor v. Louisiana, the Supreme Court was careful to "emphasize[ ] that in holding that petit juries must be drawn from a source fairly representative of the community [it] impose[d] no requirement that petit juries actually chosen must mirror the community." 419 U.S. at 538, 95 S.Ct. 692. Indeed, the Supreme Court has never used the fair cross section principle "to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large." Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Rather, Taylor requires only that "the jury wheels, pools of names, panels, or venires from which juries are drawn must not ... fail to be reasonably representative" of the community. 419 U.S. at 538, 95 S.Ct. 692. Because this claim is not cognizable under the Sixth Amendment's fair cross section principle, it was not grounds for a new trial.

B.

Erickson also argues he was entitled to a new trial in a different venue based on the fact that a disproportionate number of potential Native American jurors were stricken for cause because they either knew Erickson or a government witness, or were familiar with the alleged facts underlying the case. But Erickson agreed to each of the for-cause strikes of Native Americans, at least one of which was based on unrelated medical issues, and he did not contest the non-discriminatory reasons the government offered for its peremptory strikes of the remaining Native Americans on the jury panel. Moreover, Erickson did not seek a change of venue on these grounds at jury selection or at any other time during trial. See United States v. Cordova, 157 F.3d 587, 597 n.3 (8th Cir. 1998).

The district court denied the motion for new trial in a thorough order that addressed "the unique challenges to achieving adequate representation of Native Americans on jury panels in the Central Division." Despite those challenges, the district court described the complete...