United States v. Hernandez–Estrada

• Decision Date: 05 December 2012
• Docket Number: No. 11–50417.,11–50417.
• Citation: 704 F.3d 1015
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Salvador HERNANDEZ–ESTRADA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 1015

UNITED STATES of America, Plaintiff–Appellee,

v.Salvador HERNANDEZ–ESTRADA, Defendant–Appellant.

No. 11–50417.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 6, 2012.

Filed Dec. 5, 2012.

Michele A. McKenzie, Federal Defenders, San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter, David Curnow, and Victor P. White (argued), Assistant United States Attorneys, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding. D.C. No. 3:10–cr–00558–BTM–1.

Before: ALEX KOZINSKI, Chief Judge, PAUL J. WATFORD and ANDREW D. HURWITZ, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

The question in this appeal is whether the United States District Court for the Southern District of California violated the Jury Selection and Service Act of 1968 (“JSSA”) or the Constitution in compiling its 2009 master jury wheel. Although the Southern District departed from the requirements of the JSSA in several respects,we find no reversible error in the underlying conviction.

I.

Salvador Hernandez–Estrada was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Hernandez filed a motion to dismiss the indictment, arguing that the Southern District violated the JSSA and the Fifth and Sixth Amendments by using a juror source list consisting only of registered voters. He argued that the list underrepresented African–Americans and Hispanics. Hernandez also alleged that the Southern District violated the JSSA by (1) improperly disqualifying jurors for having insufficient English-language abilities based on their answers on the juror questionnaire; (2) improperly disqualifying jurors whose levels of English-language abilities were unclear; (3) failing to return questionnaires that omitted information on race and/or ethnicity; and (4) failing to keep jury representativeness statistics.

In response, the Government conceded that the Southern District had violated the JSSA, but disputed that any of the violations were substantial enough to warrant relief. See28 U.S.C. § 1867(a) (providing for relief only for a “substantial failure to comply” with the JSSA). The Government also disputed that the Southern District had violated the Constitution.

The district court denied Hernandez's motion to dismiss, finding no constitutional violation and that any JSSA violations were technical, not substantial, and so did not warrant dismissal. The district court nevertheless recommended that the Southern District make significant changes to its jury selection practices. Hernandez was convicted as charged.

Hernandez's appeal challenges only the denial of the motion to dismiss. “We review independently and non-deferentially a challenge to the composition of grand and petit juries,” including challenges under the JSSA. United States v. Sanchez–Lopez, 879 F.2d 541, 546 (9th Cir.1989).

II.

A.

Ordinarily, we would consider statutory claims before reaching constitutional arguments. See Califano v. Yamasaki, 442 U.S. 682, 692, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). But here Hernandez's constitutional arguments are intertwined with his JSSA claims. The JSSA contains a fair cross section guarantee, 28 U.S.C. § 1861, which is coextensive with the fair cross section requirement of the Sixth Amendment. United States v. Miller, 771 F.2d 1219, 1227 (9th Cir.1985). Accordingly, it makes more sense to address Hernandez's constitutional claims first.

1.

The JSSA provides that prospective jurors “shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division.” 28 U.S.C. § 1863(b)(2). Consistent with this requirement, the Southern District selects prospective jurors at random from the list of registered voters in the district. The JSSA further provides, however, that districts “shall prescribe some other source or sources of names in addition to voter lists where necessary to” ensure a fair cross section, afford all citizens the opportunity to be considered for jury duty, and ensure that individuals are not excluded on the basis of “race, color, religion, sex, national origin, or economic status.” 28 U.S.C. §§ 1861, 1862, 1863(b)(2). The Southern District does not supplement its source list. Hernandez argues that its failure to do so violates the Fifth and Sixth Amendments.

“The test for a constitutionally selected jury is the same, whether challenged under the Sixth Amendment of the Constitution or under the Jury Selection and Service Act.” Miller, 771 F.2d at 1227.

In order to establish a prima facie violation of the fair-cross-section requirement, 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, 58 L.Ed.2d 579 (1979). Hispanics and African–Americans are each distinctive groups under the first prong of this test. United States v. Cannady, 54 F.3d 544, 547 (9th Cir.1995).

“The second prong of the Duren test requires proof, typically statistical data, that the jury pool does not adequately represent the distinctive group in relation to the number of such persons in the community.” United States v. Esquivel, 88 F.3d 722, 726 (9th Cir.1996). In analyzing the second prong, we use the absolute disparity test, which requires us to measure underrepresentation “by taking the percentage of the group at issue in the total population and subtracting from it the percentage of that group that is represented on the master jury wheel.” Sanchez–Lopez, 879 F.2d at 547;see also United States v. Rodriguez–Lara, 421 F.3d 932, 942–943 (9th Cir.2005) (re-affirming our commitment to the absolute disparity test); Berghuis v. Smith, 559 U.S. 314, 130 S.Ct. 1382, 1393–94, 176 L.Ed.2d 249 (2010) (neither requiring nor prohibiting the use of any particular test in addressing claims of underrepresentation).¹ Although we have never drawn an exact line, we have held that a disparity of 7.7% is acceptable. Rodriguez–Lara, 421 F.3d at 943–44.

We “must rely on the statistical data that best approximates the percentage of jury-eligible [members of the group] in the district.” United States v. Torres–Hernandez, 447 F.3d 699, 704 (9th Cir.2006). In 2009, 22.5% of the Southern District's citizen population 18 and over was Hispanic and 5.2% was African–American.

We compare those percentages to the percentages of Hispanics and African–Americans in the wheel. Sanchez–Lopez, 879 F.2d at 547. In determining the percentage of Hispanics in the jury wheel we exclude those who did not identify their ethnicity on the questionnaire; and in determiningthe percentage of African–Americans we exclude those who did not identify their race. Rodriguez–Lara, 421 F.3d at 944 n. 11. Excluding these individuals, Hispanics made up 24.6% of the wheel and African–Americans made up 3.5%. Thus, Hispanics were overrepresented by 2.1% and African–Americans were underrepresented by 1.7%. Since these percentages do not begin to approach 7.7% underrepresentation, Hernandez's Sixth Amendment claim fails.

Hernandez urges that we instead include in our calculations individuals who failed to identify their race and/or ethnicity. As an initial matter, there is no way to know that those who failed to identify their race or ethnicity were not members of a minority group—after all, they did not reveal their race or ethnicity. But even if we included them, Hernandez's claim still fails. There were 40,743 persons in the qualified jury wheel, including non-responders to the race and/or ethnicity questions. Of these, 1,257 identified themselves as African–American and 6,625 as Hispanic. Thus, even if we assume that there was not a single African–American or Hispanic among the non-responders, African–Americans constituted 3.1% and Hispanics 16.3% of the qualified jury wheel. Using these numbers, African–Americans were underrepresented by 2.1% and Hispanics by 6.2%. Neither clears the 7.7% threshold.

2.

To establish a violation of the equal protection guarantee of the Fifth Amendment, a defendant must show not only substantial underrepresentation of a protected group but also “discriminatory intent.” Esquivel, 88 F.3d at 725 (citing Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)). Even assuming that Hernandez could prove substantial underrepresentation, he has neither alleged nor shown discriminatory intent, so his Fifth Amendment claim also fails.

III.

Because our rejection of Hernandez's constitutional claims dooms his fair cross section claim under the JSSA, Miller, 771 F.2d at 1227, we now turn to his remaining statutory claims.

A.

Congress enacted the JSSA as a response to concerns that racial discrimination frequently infected the jury selection process. See Esquivel, 88 F.3d at 725. In order to combat such discrimination, the JSSA prescribes a variety of procedures in compiling lists of prospective jurors. See28 U.S.C. §§ 1861–69. “Congress, recognizing that there would undoubtedly be error in the jury selection process that should not result in the dismissal of an indictment, left room for harmless error by providing that dismissal should lie only when there was a substantial failure to comply with the Act.” United States v. Evans, 526 F.2d 701, 705 (5th Cir.1976). Thus, we will only dismiss Hernandez's indictment if he shows a “substantial” violation of the JSSA. 28 U.S.C. § 1867(a).

“Technical violations are insubstantial where they do not frustrate the Act's goals.” United States v. Nelson, 718 F.2d 315, 318 (...