United States v. Rodriguez

• Decision Date: 11 January 2013
• Docket Number: Case No. SACR 05–107 JVS.
• Citation: 924 F.Supp.2d 1108
• Parties: UNITED STATES of America, Plaintiff, v. Francisco RODRIGUEZ, Defendant.
• Court: U.S. District Court — Central District of California

924 F.Supp.2d 1108

UNITED STATES of America, Plaintiff,

v.Francisco RODRIGUEZ, Defendant.

Case No. SACR 05–107 JVS.

United States District Court, C.D. California.

Jan. 11, 2013.

Andrew D. Stolper, Gregory W. Staples, Ivy A. Wang, AUSA–Office of U.S. Attorney, Criminal Division, Santa Ana, CA, for Plaintiff.

Craig Wilke, Law Office of Craig Wilke, Fullerton, CA, Cuauhtemoc Ortega, Federal Public Defenders Office, Santa Ana, CA, Davina T. Chen, Sean K. Kennedy, Federal Public Defenders Office, Los Angeles, CA, for Defendant.

ORDER RE: MOTION TO DISMISS INDICTMENT OR GRANT A NEW TRIAL & ALTERNATIVE MOTION FOR DISCOVERY

JAMES V. SELNA, District Judge.

Defendant Francisco Rodriguez (“Rodriguez”) moves the Court to dismiss the indictment or grant a new trial pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A) and 28 U.S.C. § 1867(a). (Motion, Docket No. 1190.) The United States (“the Government”) timely opposed. (Government Opposition, Docket No. 1212.) Alternatively, Rodriguez moves to compel the Clerk of the Court for the United States District Court for the Central District of California (“CDCA”), Terry Nafisi (“the Clerk”), to produce additional discovery relating to the adoption and management of the Central District's Jury Selection Plan. (Motion, Docket No. 1190.) The Clerk timely opposed. (Clerk Opposition, Docket No. 1199.) Rodriguez timely replied. (Reply, Docket No. 1233.) For the following reasons, the Court DENIES the motions.

I. BACKGROUNDA. Procedural Background

This is a criminal prosecution for alleged conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), and conspiracy to violate the Violent Crimes in Aid of Racketeering Statute (“VICAR”), 18 U.S.C. § 1959(a)(5). The October 2004 Grand Jury for the Southern Division of CDCA ¹ indicted Rodriguez on May 18, 2005. (Indictment, Docket No. 1.) The third trial in the matter commenced on August 10, 2011, and the petit jury found Rodriguez guilty.² (Jury Verdict, Docket No. 1136.)

Rodriguez first indicated his intent to challenge the petit jury venire orally on August 12, 2011. (Reporter's Transcript (8/12/11), Docket No. 1214, at 23–24.) The Court informed Rodriguez that he must file a written motion and suggested waiting until additional individuals were summoned as jurors the next week. ( Id. at 24.) On August 22, 2011, Rodriguez filed his initial motion challenging the petit jury venire. (Motion to Strike Venire, Stay Proceedings, and Order Discovery of Jury Information, Docket No. 1073.) In response, the Government argued, inter alia, that Rodriguez's motion was untimely under 28 U.S.C. § 1867(a).³ The Court disagreed. It reasoned that “the circumstance[s] which brought into play Rodriguez'[s] duty of diligence were the results of the questionnaires for the current trial and the availability of 2010 Census data,” so “Rodriguez acted diligently and within the time requirements of Section 1867(a).” ⁴ (Order re: Motion to Strike Venire and Other Relief, Docket No. 1080, at 7.)

The Court never addressed the timeliness of the challenge to the grand jury composition. During a hearing on August 26, 2011, the Government noted that “the grand jury was selected in 2004” and “[t]here is no record of anything relating to that prima facie case or otherwise,” and asked if the Court is still “leaving that open.” (Reporter's Transcript (8/26/11), Docket No. 1088, at 39.) The Court responded, “If we are going to talk about one, we might as well talk about both,” and suggested seeking out any available data. ( Id.)

Rodriguez moves to dismiss the indictment, for a new trial, or for additional discovery. He argues that by adopting and maintaining a jury selection plan that systematically underrepresents Hispanics on grand and petit juries, the Southern Division has violated his rights under the Jury Selection and Service Act of 1963 (“JSSA”), 28 U.S.C. §§ 1861–78, and the Fifth and Sixth Amendments.⁵ ( See generallyMotion.) The following factual summary details the available, relevant data on the Southern Division's Hispanic population and Jury Selection Plan.B. Population Data⁶1. U.S. Census Bureau Data

Table 1: Citizenship & Voter Registration Data—California⁷

Table 2: Hispanic Population Data—Orange County⁸

2. ACS: Age–Eligible Citizens by Ethnicity in Orange County

Table 3: Citizenship & Ethnicity Status—Orange County

+----------------------------------------------------------------------------+
                ¦      ¦Population ¦         ¦% Population ¦Citizens ¦Hispanic   ¦% Citizens ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦Year  ¦(18+)      ¦Hispanic ¦—Hispanic    ¦(18+)    ¦Citizens   ¦—Hispanic  ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2005  ¦2,144,727  ¦602,199  ¦28.01%       ¦1,706,257¦305,465    ¦17.90%     ¦
                ¦11    ¦           ¦         ¦             ¦         ¦           ¦           ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2007  ¦2,230,800  ¦640,658  ¦28.72%       ¦1,777,750¦326,940    ¦18.39%     ¦
                ¦12    ¦           ¦         ¦             ¦         ¦           ¦           ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2008  ¦2,245,108  ¦654,045  ¦29.13%       ¦1,799,668¦345,701    ¦19.21%     ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2009  ¦2,271,237  ¦671,359  ¦29.56%       ¦1,833,803¦379,091    ¦20.67%     ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2010  ¦2,280,716  ¦673,441  ¦29.53%       ¦1,863,822¦391,542    ¦21.01%     ¦
                +------+-----------+---------+-------------+---------+-----------+-----------¦
                ¦2011  ¦2,318,625  ¦693,633  ¦29.92%       ¦1,891,999¦404,433    ¦21.38%     ¦
                +----------------------------------------------------------------------------+
                

According to the Clerk, in Orange County, there were 1,554,792 registered voters in 2009, and 1,589,950 registered voters in 2010. (Terry Nafisi, Memorandum re: Status of Jury Representation Issue, Wilke Decl. Ex. U, at 1.) Thus, 84.79% of eighteen-and-over citizens in Orange County were registered in 2009, and 85.31% of eighteen-and-over citizens were registered in 2010.

C. The Jury Selection Plan and the Jury Pool in Southern Division1. Jury Selection Plan

The Jury Selection Plan adopted by the Article III judges in CDCA and approved by the Judicial Council of the Ninth Circuit governs the selection of grand and petit jury venires. See28 U.S.C. § 1863(a); 28 U.S.C. § 132(b). The Clerk does not participate in the decision to approve or reject the Jury Selection Plan. (Clerk Opposition, at 1.) The Jury Selection Plan, in accordance with 28 U.S.C. § 1863(b)(2), requires the Southern Division to use voter registration lists to select the names of prospective jurors. (General Orders 99–08, 07–10, 11–08 § 4, Wilke Decl. Exs. A–C.) The Plan ¹³ provides that “[a] random selection of a fair cross section of the citizens residing in the counties of the Divisions of the District can be made from the lists of registered voters” in the Divisions. (General Order 11–08 § 4.) According to the Plan, “[t]o foster the policy and protect the rights secured by §§ 1861 and 1862 of the Act, it is not necessary to use sources other than the voter registration lists.” ¹⁴ ( Id.) The 2004 grand jury that indicted Rodriguez was selected under General Order 99–08, and the 2011 petit jury that convicted Rodriguez was selected under General Order 11–08. (Motion, at 4 n. 1.)

The Plan instructs the Clerk to send a questionnaire (a juror qualification form) to prospective jurors, whose names are drawn randomly from the voter registration lists. (General Order 11–08 § 8.) The questionnaire asks the prospective juror for her race and ethnicity. ( See Sample Juror Questionnaire, Wilke Decl. Ex. P.) Question 10(b) specifically asks if the juror is Hispanic or Latino. ( Id.) Any person eighteen-and-over who has resided for at least one year within the district is qualified to serve on a grand or petit jury unless she is unable to read, write, or understand English enough to satisfactorily complete the questionnaire; is unable to speak English; is incapable of performing jury service due to mental or physical infirmity;or has a pending felony charge or felony conviction. (General Order 11–08 § 9 (citing 28 U.S.C. § 1865(b).)). In 2009 and 2010, the Southern Division's master jury wheel source list—the list of names to be called as potential jurors—consisted of approximately 35,000 persons per year. (Jury Representation Memorandum, Wilke Decl. Ex. U.)

2. Procedures in the Southern Division

To monitor the Plan and ensure jurors are selected from a fair cross section of the community, the Clerk's Office generates a yearly JS12 Race Ethnicity Report that details the racial and ethnic composition of CDCA's jury pools and the juror-eligible population. (Clerk Opposition, at 2–3; see, e.g., JS12 Race Ethnicity Reports, Wilke Decl. Ex. J; JS12 Race Ethnicity Reports, Wagstaffe Decl. Ex. J.) According to the Judicial Conference of the United States, courts should use age-eligible citizen data when generating such reports, not age-eligible general population data. (Report of the Proceedings of the Judicial Conference of the United States—March 13, 2002, Wagstaffe Decl. Ex. A, at 15.) The Administrative Office of the U.S. Courts (“AO”) provides this data to the federal districts approximately every ten years in conjunction with the U.S. Census Bureau's reporting of decennial population figures. (Clerk Opposition, at 3; Judge Thomas F. Hogan, Memorandum re: 2010 Population Tables, Wagstaffe Decl. Ex. B, at 1.) The Clerk's Office received the 2010 data in March 2012, after Rodriguez filed this challenge. ( See Hogan Memorandum, Wagstaffe Decl. Ex. B; Declaration of Terry Nafisi (“Nafisi Decl.”) ¶ 3, Docket No. 1199–1.)

Before October 2011, the JS12 Race...