United States v. Gaona

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: Following these precedents we deny both the constitutional and statutory claims of defendant
• Citation: United States v. Gaona, 445 F.Supp. 1237 (W.D. Tex. 1978)
• Decision Date: 14 February 1978
• Docket Number: Crim. No. SA-76-CR-202.
• Parties: UNITED STATES of America v. Raul Efrain GAONA.

445 F. Supp. 1237

UNITED STATES of America v. Raul Efrain GAONA.

Crim. No. SA-76-CR-202.

United States District Court, W. D. Texas, San Antonio Division.

February 14, 1978.

Jamie C. Boyd, U.S. Atty., San Antonio, Tex., for the Government.

Walter J. Bonner, Washington, D.C., Ruben Sandoval, San Antonio, Tex., David Kairys, Philadelphia, Pa., for defendant.

MEMORANDUM RULING

EDWIN F. HUNTER, Jr., Senior District Judge:^*

On January 12, 1978, Dr. Gaona, through counsel, requested a hearing pursuant to 28 U.S.C. § 1867 concerning his motion challenging the jury selection system in the San Antonio Division of the Western District of Texas. The request was granted. An evidentiary hearing was held on January 23, 1978. The motion is predicated on the allegations that jurors selected under the plan are not drawn from "a fair cross section of the community" as required under the Jury Selection and Service Act of 1968. 28 U.S.C. § 1861, et seq., as amended.

The Act allows for flexibility by relegating the task of formulating plans to the judicial district-division level. Under § 1863, each district or division is required to adopt a formal written plan, to be scrutinized by a reviewing panel comprised of the appropriate judicial council and either the Chief Judge of the appropriate district or some other active judge designated by the Chief Judge. The plan under attack here has been so reviewed and approved. As required by section 1863(b)(2) of the Act, the San Antonio plan utilizes voter registration lists as the initial source of names for potential jurors. Names are selected from these lists at fixed intervals and placed into a master jury wheel from which a qualified jury wheel is in turn selected at random. Defendant concedes this selection process is mathematically random and that the demographic composition of the master jury wheel accurately reflects the composition of the voter registration lists.

The major thrust of defendant's challenge is that there exists a substantial disparity between the representation of a cognizable class (Mexican-Americans) in the population and the voter registration lists. This disparity, it is contended, requires that "some other source or sources of names in addition to voter lists" be utilized. 28 U.S.C. § 1863(b)(2). (See Jury Representativeness, pp. 816-26, by David Kairys, et al., reprinted from California Law Review, Vol. 65, No. 4, July 1977).

We are aware of no case in which exclusive reliance on voter registration lists has been invalidated. Nevertheless, Congress saw fit to enunciate a duty to supplement the source lists where necessary to protect the rights secured by § 1861 and § 1862. Senate Report No. 891, 90th Congress (1967), notes:

The voting list need not perfectly mirror the percentage structure of the community. But any substantial deviations must be corrected by use of supplemental sources. Your committee would leave the definition of substantial to the process of judicial decision.

The sole, additional guidance is furnished by the observation that the disparity must be "great" or "pronounced,"¹ and the suggestion that substantiality be tested by the ease or difficulty by which the disparity may be eliminated.²

THE CONSTITUTIONAL CLAIM

What is guaranteed by the Sixth Amendment and Due Process clauses of the Fifth Amendment are juries selected from source lists, and by procedures which are free from discrimination. It follows that a successful constitutional challenge to a jury plan requires evidence that a cognizable group has been purposely and systematically excluded. The precise meaning of "purposely and systematically excluded" has been the subject of considerable controversy. The necessary exclusion may be established without proof of specific intent. There are two ways that defendant could sustain his constitutional challenge of this voter registration jury plan.³ First, by proving that there are affirmative barriers to voter registration by Mexican-Americans. Second, if, during the process of qualifying jurors drawn from the registration lists, there is a "progressive decimation or dilution" of the proportion of Mexican-Americans available for jury service. There is no evidence of affirmative barriers. The limited evidence as to dilution just does not suffice.⁴ Defendant has failed to make a prima facie showing that the Jury Selection Plan of this division violates the guarantees of the Fifth and Sixth Amendments.

Mexican-Americans, as such, are a cognizable group, but neither the Act nor the Constitution require that a supplemental source of names be added to voter lists simply because an identifiable group registers to vote in a proportion lower than the rest of the population. While a fairer cross section may have been produced by the use of "other sources," the plan's sole reliance on voter registration lists was constitutionally permissible. United States v. Evans, 542 F.2d 805 (10th Cir., 1976); United States v. James, 528 F.2d 999 (5th Cir., 1976); United States v. Lewis, 472 F.2d 252 (3rd Cir. 1972).

THE STATUTORY CLAIM

It is defendant's position that in enacting the Jury Selection and Service Act, Congress established statutory standards for judging the legality of jury plans which are more rigorous than the constitutional standard of "systematic exclusion." Specifically, they contend that under 28 U.S.C.A. § 1863(b)(2), "voter registration lists or the lists of actual voters" are to be the primary source, and that each district "shall prescribe some other source or sources of names * * * where necessary to foster the policy of representation of a cross section of the community." Further, they argue that a "statistically significant underrepresentation" of cognizable groups constitutes a "substantial failure to comply" with the "fair cross section" requirement, irrespective of the cause of such under-representation.⁵

The language of this provision appears to mandate supplementation where there is a substantial statistical disparity, but only two districts supplement voter lists. No court has required multiple lists or supplemented a primary list on constitutional or statutory grounds.⁶ The failure to implement is not because of a lack of challenges.⁷

The Supreme Court has not directly considered the issue, but the majority of lower federal courts have responded to the congressional mandate by construing the statutory "fair cross section" standard as the functional equivalent of the constitutional "reasonably representative" standard. United States v. Test, D.C.1975, 399 F.Supp. 683, 691, and cases cited therein. It is highly pertinent that under-representation of Mexican-Americans in the instant case has no proven cause other than failure to register to vote in the same proportions as Blacks and Anglos. The law in the Fifth Circuit is:

"A group of persons who choose not to register do not constitute a cognizable group." Camp v. United States, 413 F.2d 419 (5th Cir., 1969); Grimes v. United States, 391 F.2d 709 (5th Cir., 1968); United States v. Dangler, 422 F.2d 344 (5th Cir., 1970); United States v. James, 528 F.2d 999 (5th Cir., 1976). See also United States v. Lewis, 472 F.2d 252 (3rd Cir., 1973).

Following these precedents we deny both the constitutional and statutory claims of defendant.

However, it is appropriate to review the testimony of defendant's experts. Defendant offered proof that 56.8% of the 18 years and over population in the fourteen counties comprising the San Antonio Division is Mexican-American, but that only 37.8% of the source list is Mexican-American. Defendant's expert demographers were Dr. Jose Hernandez, Professor and Head of the Department of Sociology at the University of Wisconsin, who is an advisor to the Census Bureau and whose primary work has been devoted to the demography of Spanish origin people, and Dr. Harley Browning, Professor of Sociology at the University of Texas at Austin, who was Director of the Population Research Center at the University of Texas from 1964-1977. Dr. Browning has done extensive research and writing concerning the demography of Mexican-Americans in Texas.

Dr. Hernandez prepared a report (Defendant's Exh. 3, See Appendix) is which he presented a precise analysis of how he projected the Mexican-American proportion of the population. In his report and testimony, Dr. Hernandez indicated where and on what basis estimates were made. His first task was to estimate the Spanish surname population, 18 years and older, in 1978. The 1970 U.S. Census revealed the primary racial ethnic division of the population to have been: 330,831 Spanish surname; 428,981 Anglo surname; and 59,252 Black and other non-white.⁸ He then made an adjustment of 12.5% for an estimated undercount in Spanish-American names. The adjusted totals were updated to 1978, according "natural" increase factors (birth rate in each group minus death rate in each group). With these adjustments, the estimate was that the Spanish surname population had risen to 45.4%. Dr. Hernandez proceeded to convert the Spanish surname date to "Mexican-American" estimates. It was estimated that 24% of Mexican-Americans have non-Spanish surnames. On the basis of this conversion, the updated Spanish surname total of 444,922 was increased by 111,230 and resulted in a total of 56.8% percentage of the population. See Defendant's Exh. 3, See Appendix for details. If we accept these estimates we have an absolute disparity of 19%.⁹

This pronounced statistical disparity (if accepted as to relevant starting point and fact) would require this court to question seriously whether the selection process has produced the statutory "fair cross section." But, defendant's approach ignores completely the eligibility requirements for jury service set forth at 28 U.S.C. § 1865,¹⁰ the constitutionality of which no one attacks:

"Common sense demands that eligible population statistics, not gross population figures, provide the relevant starting

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