Appeal from the United States District Court for the Southern District of California D.C. No. 3:10-cr-00558-BTM-1 Barry T. Moskowitz, District Judge, Presiding
The opinion of the court was delivered by: Hurwitz, Circuit Judge:
Argued and Submitted September 6, 2012-Pasadena, California
Before: Alex Kozinski, Chief Judge, Paul J. Watford and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz;
Concurrence by Chief Judge Kozinski
The panel affirmed an illegal re-entry conviction in a case in which the defendant argued that in compiling its 2009 master jury wheel, the Southern District of California violated the Jury Selection and Service Act of 1968 and the Constitution.
Applying the absolute disparity rule, the panel held that because a juror source list consisting only of registered voters did not substantially underrepresent African-Americans or Hispanics in the community, the Southern District's failure to supplement that list did not violate the Sixth Amendment. The panel also held that because the defendant neither alleged nor showed discriminatory intent, there was no Fifth Amendment equal-protection violation.
The panel wrote that the Southern District Clerk's Office should not automatically disqualify individuals who express doubt about their English skills, and should not put off preparing statistical jury-representativeness forms required by the Act, but that these technical violations did not frustrate the Act's goals and do not warrant merits relief in this case.
The panel held that the Southern District's dismissal of prospective jurors based solely on a "no" answer to a question whether jurors "read, write, speak and understand the English language" was not a substantial violation of the Act because it did not interfere with the Act's key goals of randomness and objectivity. The panel also held that the defendant did not demonstrate that the Southern District substantially departed from the requirements of the Act by failing to return questionnaires to prospective jurors who failed to answer questions on race and/or ethnicity.
The panel cautioned the Southern District to take note of the statutory violations identified and amend its practices in the future.
Chief Judge Kozinski (joined by Judge Watford) concurred without enthusiasm because the rule the panel is bound to apply -- i.e., measuring disparity for fair cross section purposes by looking at absolute disparity, and accepting up to 7.7% of the total jury pool as a permissible deviation -- is clearly wrong.
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.
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. See 28 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 nondeferentially a challenge to the composition of grand and petit juries," including challenges under the JSSA. United ...