The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Salvador Hernandez-Estrada ("Defendant") has filed a motion to dismiss the indictment for (1) violation of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-78 ("JSSA"); (2) violation of the equal protection guarantee of the Fifth Amendment; and (3) violation of the fair cross-section requirement of the Sixth Amendment. For the reasons discussed below, Defendant's motion is DENIED.
On February 18, 2010, a grand jury returned an indictment against Defendant, charging him with being a deported alien found in the United States in violation of 8 U.S.C. §§ 1326(a) and (b). The grand jury that returned the indictment against Defendant was drawn from the Southern District of California's 2009 jury wheel.
Defendant seeks dismissal of the indictment in this case on the ground that the Southern District of California (the "Southern District" or "District") has violated the JSSA, the Fifth Amendment, and the Sixth Amendment by relying solely on registered voter lists to fill the master jury wheel. Defendant claims that the Southern District's failure to supplement its jury source list has resulted in under-representation of Hispanics and African-Americans on the Southern District's jury wheels since 1999. Defendant also contends that the Southern District has violated the JSSA by (1) misstating the legal standard regarding English proficiency in Question 4 on the Juror Qualification Questionnaire; (2) failing to return questionnaires to prospective jurors who omit race/ethnicity information from their Juror Qualification Questionnaires; and (3) failing to compile jury representativeness statistics in accordance with the procedures set forth in the statute.
As discussed below, the Court agrees that there are flaws in the District's jury selection procedures and that improvements could be made. However, the Court does not find that Defendant has established a violation of constitutional magnitude or a substantial violation of the JSSA.
A. Fair Cross-Section and Equal Protection Claim
Defendant contends that due to the District's failure to supplement its jury source list, both Hispanic and African-American citizens have been persistently underrepresented on the District's master and qualified jury wheels since 1999. Defendant alleges that this under-representation of Hispanics and African-Americans has resulted in violations of his Sixth Amendment and JSSA rights to a jury selected from a fair cross section of the community and his Fifth Amendment right to equal protection. As discussed below, Defendant's fair cross-section and equal protection claims fail because Defendant has failed to establish under-representation of Hispanics and African-Americans.
1. Right to a Representative Jury Under the Fifth Amendment, Sixth Amendment, and JSSA
The Sixth Amendment provides that a criminal defendant has the right to trial "by an impartial jury." U.S. Const. Amend. VI. Fundamental to the right to trial by an impartial jury is the requirement that a jury be selected from a fair cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 697 (1975).
The fair cross-section requirement is violated when the jury-selection process systematically excludes a distinctive group of the jury-eligible population. Duren v. Missouri, 439 U.S. 357, 364 (1979). A prima facie violation of the fair-cross-section requirement is established when the defendant shows:
(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 under-representation is due to systematic exclusion of the group in the jury-selection process.
The JSSA, 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." "The test for proving a prima-facie constitutional violation in the selection of a fair cross section is the same for challenges under both the Sixth Amendment and 28 U.S.C. § 1861." Cannady v. Ojeda, 54 F.3d 544, 546 (9th Cir. 1995). In other words, under the JSSA, supplemental source lists are required to be added to voter lists only when "the jury selection plan produced juries constitutionally infirm." United States v. Brady, 579 F.2d 1121, 1133 (9th Cir. 1978).
In order to establish an equal protection violation under the Fifth Amendment in the context of grand jury selection, the defendant must show that "the procedure resulted in substantial under-representation of his race or of the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S. 482, 494 (1977). The defendant can establish a prima facie case of an equal protection violation by (1) establishing that the group "is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied"; (2) proving the degree of under-representation "by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time"; and (3) showing that the selection procedure "is susceptible of abuse or is not racially neutral." Id.
Federal Defenders made the same fair cross-section/equal protection argument in United States v. Jose Garcia-Arellano, 08cr2876. For the most part, Federal Defenders relies on the same reasoning and the same evidence. Therefore, the Court incorporates by reference its discussion of these claims in its Order Denying Motion to Dismiss Indictment filed on June 9, 2009 in Garcia-Arellano ("Garcia-Arellano Order"). [Doc. No. 62].
Hispanics and African-Americans are "distinctive groups" in the community. Cannady, 54 F.3d at 547. Therefore, the Court turns to the issue of whether the representation of Hispanics and African-Americans in the jury pool is fair and reasonable in relation to the number of Hispanics and African-Americans in the community.
For the reasons discussed in Garcia-Arellano, the Court looks to the "absolute disparity" between (1) the percentage of Hispanics and African-Americans in the citizen population aged 18 and over; and (2) the percentage of African-Americans and Hispanics on the qualified wheel. In computing the absolute disparity between the percentage of jury-eligible Hispanics and the percentage of Hispanics on the qualified wheel, the Court does not include in its calculations the individuals who did not report their ethnicity. See United States v. Rodriguez-Lara, 421 F.3d 932, 944 n. 11 (9th Cir. 2005), Set forth below are tables comparing the percentage of Hispanics and African- Americans in the citizen population aged 18 and over to the percentage of Hispanics and African-Americans on the "qualified" wheels for the years, 1999, 2001, 2003, 2005, 2007, and 2009.*fn1 ///
Comparison of Hispanics in Citizen Population 18 and Hispanics on Qualified Wheel
Year % Citizen % on AO-12 Absolute Absolute
Population 18 Disparity Disparity
(excluding individuals not reporting ethnicity)
2009 22.5 16.26 6.24 - 2.07 2007 20.9 14.99 5.91 - 2.15 2005 19.7 13.41 6.29 - .79 2003 18.8 14.49 4.31 - 2.97 2001 17.8 5.76 12.04 - .14 1999 17.8 10.37 7.43 4.08
Comparison of African-Americans in Citizen Population 18 and African-Americans on Qualified Wheel
Year % Citizen % on AO-12 Absolute Absolute
Population 18 Disparity Disparity
(excluding individuals not reporting race)
2009 5.2% 3.09 2.11 1.71 2007 5.3% ...