United States v. Nordwall, CR-R-82-14-ECR.

• Decision Date: 01 October 1982
• Docket Number: No. CR-R-82-14-ECR.,CR-R-82-14-ECR.
• Citation: 555 F. Supp. 37
• Parties: UNITED STATES of America, Plaintiff, v. Adam NORDWALL, aka Adam Fortunate Eagle, Defendant.
• Court: U.S. District Court — District of Nevada

555 F. Supp. 37

UNITED STATES of America, Plaintiff, v. Adam NORDWALL, aka Adam Fortunate Eagle, Defendant.

No. CR-R-82-14-ECR.

United States District Court, D. Nevada.

October 1, 1982.

Lamond R. Mills, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., for plaintiff.

Lawrence Semenza, Reno, Nev., for defendant.

ORDER

EDWARD C. REED, Jr., District Judge.

Defendant Nordwall has moved to dismiss the indictment in this case based upon the assertion that both grand jurors and petit jurors in this district have been selected in violation of 28 U.S.C. §§ 1861, 1862, 1863, 1868 as well as "the Equal Protection clause of the Fifth Amendment." While the Fifth Amendment contains no Equal Protection clause, traditional equal protection analysis is permissible pursuant to the Due Process clause of the Fifth Amendment. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976).

The policy behind the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., enacted in 1968 is that "... all litigants in Federal Courts entitled to a trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." Under 28 U.S.C. § 1863 the district court must formulate a random jury selection plan which may provide for selection of prospective jurors from voter registration lists. Supplementation of voter registration lists may be allowed, if necessary, to promote the policy of 28 U.S.C. § 1861.

The United States District Court for the District of Nevada uses voter registration lists as the sole means for selection of potential jurors. The thrust of defendant's motion is that due to substantial under-representation of various minority groups, most specifically American Indian, defendant was denied the right to indictment by a grand jury and prospectively trial by petit jury, reflecting an adequate cross-section of the community.

The burden is on the defendant to show either a systematic exclusion of an identifiable class or "substantial deviation" between identifiable groups. United States v. Brady, 579 F.2d 1121 (9th Cir.1978). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) the Supreme Court stated that:

"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."

The Court notes at the outset that the practice of using voter registration lists as the exclusive means of selecting prospective jurors has been consistently upheld in the Ninth Circuit against both statutory and constitutional challenges. United States v. Potter, 552 F.2d 901 (9th Cir.1977); United States v. Brady, supra; United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977).

The defendant here is apparently not contending that the present juror selection plan utilized in this district results in systematic exclusion of any identifiable class. Rather, he relies instead on the position that alleged statistical gross underrepresentation of certain identifiable groups constitutes substantial deviation and in some cases effectively sanctions total exclusion of such groups from both grand and petit jury panels. Based on the materials presented by defendant and the applicable law of this circuit, the Court finds that defendant has not presented a prima facie case of underrepresentation of cognizable groups in the juror selection process used here.

According to the 1980 census 2.49 percent of the population aged 18 or over residing in Northern Nevada, the area from which potential jurors in the unofficial Northern Division of the United States District Court for the District of Nevada are selected, are American Indian. In determining whether a "substantial deviation" in representation of such an undisputedly cognizable group exists in the composition of the potential juror group in this division, the Court is required to "consider the effect of the deviation on the absolute numerical composition" of juries. United States v. Potter, supra, 552 F.2d at 906.

In Potter, blacks comprised 8.5% of the population but only 5.8% of the potential jurors in the jury wheel. This constituted an absolute disparity of 2.7% and a comparative disparity indicating underrepresentation by 31.9%. The Potter court stated that comparative disparity is "misleading" in this context and that to rely on that percentage figure alone "is to focus on a misleading statistic." That is:

"Reliance solely on percentages may produce disproportionately high figures which distort the actual effect of the deviation. In the instant case, appellant's figures tended to show that whereas blacks represented 8.5% of the population, their representation on the jury wheel was only 5.8%. Thus, superficial analysis suggests that blacks are underrepresented by 31.9%, which by itself seems substantial.... While 2.7 is 32% of 8.5, it is still only 2.7% of 100. Correction of this deviation would result, on the average, in the addition of less than one person on a grand jury of 23, and would add just one black to an array of 50. The absolute percentage disparity would have to be approximately 4.3% to result in the addition of one black to the average grand jury. Here the deviation is only 2.7%. This is not substantial." Id.

The Ninth Circuit has not since deviated from this view.

Despite this, defendant nonetheless urges this Court to adopt the comparative disparity analysis in this case because in a district such as this "... where the percentage of minorities is very small, use of the absolute disparity standard could, in effect, validate almost all underrepresentations of small and medium sized minorities." The underlying basis to this argument is that there can never be a...