US v. Irurita-Ramirez

• Decision Date: 24 November 1993
• Docket Number: No. CR 92-814(A)-GLT.,CR 92-814(A)-GLT.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Sylvia IRURITA-RAMIREZ, et al., Defendants.

838 F. Supp. 1385

UNITED STATES of America, Plaintiff, v. Sylvia IRURITA-RAMIREZ, et al., Defendants.

No. CR 92-814(A)-GLT.

United States District Court, C.D. California.

November 24, 1993.

Thomas P. Sleisenger, Asst. U.S. Atty., Narcotics Section, Los Angeles, CA, for plaintiff.

Raymond G. Hernacki, Laguna Beach, CA, Donald C. Randolph, Randolph & Levans, Santa Monica, CA, Malcolm M. Guleserian, Huntington Beach, CA, for Jesus Monsalve.

Mark Beck, Earl Hanson, Los Angeles, CA, for Osbaldo Montalvo-Dominguez.

Michael Garey, Santa Ana, CA, Elliot R. Stanford, Los Angeles, CA, for Mario Saide Aguilera Ramirez.

Morton H. Boren, Los Angeles, CA, for Bernardo Casas.

Ron Cordova, Newport Beach, CA, Terrence P. Goggin, Beverly Hills, CA, James M. Hodges, Long Beach, CA, for Art L. Romo.

Gilberto R. Geilim-Morales, Law Offices of Gilberto R. Geilim-Morales, Los Angeles, CA, for Larry Hustad.

Robert Ramsey, Richard E. Nahigian, Los Angeles, CA, for Jorge Santamaria Rendon.

Angela M. Berry, Los Angeles, CA, for Alfredo Romero.

Errol H. Stambler, Los Angeles, CA, Ralph Bencangey, Beverly Hills, CA, for Jose Solario.

Howard E. Beckler, Hollywood, CA, for Jorge Tapia.

William L. O'Bryan, Los Angeles, CA, for Betty Velez.

Harvey E. Byron, Los Angeles, CA, Stephen M. Garcia, Manhattan Beach, CA, for Jorge Bonilla.

ORDER ON DEFENDANTS' MOTION OBJECTING TO JURY VENIRE

TAYLOR, District Judge.

This case evaluates General Order 336, the new jury selection plan used in the Central District of California, and concludes it is constitutional.

I. BACKGROUND

The Central District of California is composed of the counties of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura. For many years cases in the Central District were tried in Los Angeles before a jury drawn from all seven counties. In the 1980's, Congress established Santa Ana, in Orange County, as an additional place of holding court, and cases from the tri-counties area of Orange, San Bernardino, and Riverside Counties were thereafter eligible for hearing in Santa Ana. In 1992, Congress divided the Central District into three divisions. 28 U.S.C. § 84(c). The Western Division contains Los Angeles, San Luis Obispo, Santa Barbara and Ventura counties; the Southern Division contains Orange County; and the Eastern Division contains Riverside and San Bernardino counties.

On August 11, 1993, the Central District promulgated General Order 336, a new jury selection plan for the District. The plan was approved by the Judicial Council of the Ninth Circuit on August 16, 1993. 28 U.S.C. 1863(a). The plan provides that juries for the federal courthouse in Santa Ana will be drawn from the Southern and Eastern Divisions, and juries for the federal courthouse in Los Angeles will be drawn from the Western Division.

Defendants Aguilera, Camacho, Casas, Hustad, Montalvo-Dominguez and Romo challenge the constitutionality of the plan established under General Order 336. They contend the jury selection procedure deprives them of a jury selected from a fair cross-section of the community, in violation of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, the Sixth Amendment, and the equal protection guarantee of the Fifth Amendment's due process clause. Defendants have standing to raise this issue, and the matter is properly before the court for decision.¹

II. DISCUSSION

The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, provides that "all litigants ... 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." (emphasis added). By its terms, section 1861 permits juries to be selected from divisions.

Courts have repeatedly held that there is no constitutional right to a jury drawn from an entire judicial district. A petit jury may be drawn constitutionally from only one division rather than the whole district. Ruthenberg v. United States, 245 U.S. 480, 482, 38 S.Ct. 168, 169, 62 L.Ed. 414 (1918); United States v. Herbert, 698 F.2d 981, 984 (9th Cir.1983); United States v. Cates, 485 F.2d 26, 29 (1st Cir.1974). See also, United States v. Young, 618 F.2d 1281, 1287-88 (8th Cir.1980) (no constitutional right to a jury drawn from an entire district despite differences in the ratio of urban to rural jurors in the district's divisions); Zicarelli v. Dietz, 633 F.2d 312, 316-18 (3d Cir. 1980) (no constitutional right to a jury chosen from the entire district despite demographic differences between divisions). Because a jury drawn from the division "community" is constitutional, the issue is whether the division venire (or "master jury wheel") represents a cross section of the community.

The right to a fair cross section does not mean proportional representation, or that the venire should be "a perfect mirror of the community." Swain v. Alabama, 380 U.S. 202, 205-206, 85 S.Ct. 824, 827-828, 13 L.Ed.2d 759 (1965). Such precision would be impossible.

In order to show a prima-facie constitutional violation in the selection of a fair cross section, a defendant must meet the requirements of the three-part test stated in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Under Duren, 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 the 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, 439 U.S. at 364, 99 S.Ct. at 668.

The Duren test applies to challenges under the Fifth and Sixth amendments as well as those brought under 28 U.S.C. § 1861 et seq. United States v. Sanchez-Lopez, 879 F.2d 541, 546-47 (9th Cir.1989); United States v. Herbert, 698 F.2d at 984.²

First Duren Requirement: Distinctive Group

The United States Supreme Court and the Ninth Circuit have held that the types of ethnic groups under consideration in this case are distinctive and identifiable groups in the community. Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977); Peters v. Kiff, 407 U.S. at 503, 92 S.Ct. at 2169; U.S. v. Sanchez-Lopez, 879 F.2d at 547. The first requirement of the Duren test is met.

Second Duren Requirement: Absolute Disparity

The second part of the Duren test requires a statistical evaluation. Defendants must show that the representation of distinctive groups in the venire from which juries are selected is not fair and reasonable in relation to the number of those distinctive groups in the community. Sanchez-Lopez, 879 F.2d at 547. Because a general class of all minorities is not recognized as a distinctive group, United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir.1982), each distinctive group must be considered separately, comparing the percentage of the group in the community to the percentage of the group in the venire.

The Ninth Circuit uses an absolute disparity analysis to determine the underrepresentation of a particular group in the jury venire. Sanchez-Lopez, 879 F.2d at 547. See also, United States v. Suttiswad, 696 F.2d at 648-49; United States v. Armstrong, 621 F.2d 951, 955-56 (9th Cir.1980); United States v. Kleifgen, 557 F.2d 1293, 1296-97 (9th Cir.1977); United States v. Potter, 552 F.2d 901, 905-06 (9th Cir.1977). An absolute disparity is calculated 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 547.³

The law requires that jurors must be United States citizens and at least 18 years of age. 28 U.S.C. § 1865(b)(1) and § 1861. In compiling statistics on the percentage numbers of such juror-eligible persons, the court makes use of the most reliable information available. The parties and the courts may use total population figures if no more accurate jury-eligible population statistics are at hand. U.S. v. Sanchez-Lopez, 879 F.2d at 547. However, if more precise jury-eligible statistics are available, as they are here, the court will use them. See, for example, Duren v. Missouri, 439 U.S. at 365, 99 S.Ct. at 669; U.S. v. Suttiswad, 696 F.2d at 648 n. 3.

There are several sources of reliable population statistics provided by the parties for calculating absolute disparity. 1990 U.S. Census figures set forth the total population by ethnic group, but without adjustment for age or citizenship. Additionally, there are partially-adjusted 1990 Census Bureau figures, stating the ethnic percentage of jury age (over 18) persons. Finally, the California State Census Data Center maintains adjusted statistics of the jury-eligible group: citizens who are at least 18 years of age. The data from the Census Data Center most correctly reflects the jury-eligible population, and is here used by the court.

Additionally, there are two sources of reliable statistics for the ethnic make-up of the jury venire. The Central District maintains a demographic breakdown of the master jury wheel in use between August 1993 and March 1994. Additionally the district's Jury Commissioner conducted a 1993 questionnaire of the venire. Both sources are considered by the court to establish a disparity range.

Using this best information available, the absolute disparity range calculations are as shown in the Appendix. Based on this information, the absolute disparity ranges in the Southern-Eastern Divisions jury venire under General Order 336 are from 0.3 to 1.0% for Blacks, from negative 0.7⁴ to 0.2% for Asians, and from 2.2 to 3.1% for Hispanics. In the Western Division the absolute disparity ranges under General Order 336 are from negative 0.1 to 0.2% for Blacks, from negative 0.2 to 0.2% for Asians, and from 4.4 to 4.7% for Hispanics.

The...