Opinion
SA-05-CR-108-RF.
May 12, 2006
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
BEFORE THE COURT is Defendant's Motion to Dismiss the Indictment Because the Grand Jury Which Returned the Indictment in this Cause was Not Drawn from a Fair Cross-Section of the Community (Docket No. 26), filed March 10, 2006, United States' Response to Defendant's Motion (Docket No. 27), filed March 29, 2006, and Defendant's Reply (Docket No. 30), filed May 3, 2006. After due consideration of the material submitted by the parties, the Court is of the opinion that Defendant's Motion (Docket No. 26) should be DENIED.
STANDARD OF REVIEW
The parties agree that this case is governed by the standard set forth in Duren v. Missouri. In that case the United States Supreme Court stated that in order to establish a prima facie violation of the fair cross-section requirement, 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 under-representation is due to systematic exclusion of the group in the jury-selection process." The parties agree that Defendant is able to satisfy the first prong of his prima facie case. However, whether he can meet the second and third prongs is disputed.
439 U.S. 357 (1979).
Id. at 364.
DISCUSSION
Defendant argues that dismissal of the indictment is warranted based on the jury selection plan in the San Antonio Division of the Western District of Texas that was operating when the jury in this matter was selected. Defendant argues that the San Antonio Division selection process excludes Hispanics and Blacks, in violation of the Sixth Amendment and the Jury Selection and Service Act.
The Sixth Amendment guarantees a criminal defendant the right to a trial by a jury selection from a fair cross-section of the community. Thus, jury pools or panels from which jurors are drawn must not systematically exclude distinctive groups in the community and fail in this regard to be reasonably representative of the community. The Jury Selection and Service Act provides that litigants in federal courts are entitled to juries selected at random from a fair cross section of the community. Defendant submits briefing to show that in the San Antonio area, the population of jury-eligible persons was 43.5 percent Hispanic, while the wheel from which juries were chosen was only 33.9 percent Hispanic. Defendant's briefing also shows that the percentage of Blacks on the 2004-2005 jury wheel is 3.8 percent compared to 6.3 percent of Blacks who are jury-eligible. Thus, the "absolute disparities" are 9.6 percent and 2.5 percent, respectively. Defendant alleges that these disparities violated his constitutional and statutory rights just described.
Taylor v. Louisiana, 419 U.S. 522 (1975).
Id. at 538.
In his Reply Brief, Defendant submits the affidavits and reports of two experts, Richard J. Harris and Don R. Warren. Mr. Harris, a professor of sociology, reports that 46.19% of the voting age population in San Antonio identify themselves as Hispanic. Mr. Harris asserts that "there is a statistically significant under-representation of Hispanics in the current jury wheel," and that "the underrepresentation is primarily due to the use of voter-registration lists as the sole source of potential members of the jury wheel." Don Warren's report argues that the measure used by federal courts, absolute disparity, "is inherently inequitable because it doesn't adjust for the base percentage of the group." However, Mr. Warren, a statistics professor at the University of Texas at San Antonio, notes that the stated advantage of using relative disparity as a measure is as much a disadvantage for a group that represents a small base percentage. In his report, Dr. Warren rejects the use of traditional measures of jury-wheel disparity and instead proposes a non-traditional measure he calls the statistical disparity scale. This scale purportedly addresses and cures the shortcomings of the other measures, such as treating groups unequally, being too reactive to small base percentage values, and failing to have the needed scaling properties.
D's Reply to the Government's Response to His Motion to Dismiss the Indictment (Docket No. 30), Exhibit A, at ¶¶ 2-3.
D's Reply to the Government's Response to His Motion to Dismiss the Indictment (Docket No. 30), Exhibit B, at p. 3.
Id.
This Court has faced this exact issue previously and has already ruled on multiple occasions that jury selection comported with the Jury Selection and Service Act. In any event, the Sixth Amendment and the federal jury selection statute both require that the jury venire from which the actual jury is selected represents a fair cross-section of the community. The jury ultimately seated need not represent such a cross-section. The test used by courts to determine whether there has been a prima facie violation of the constitutional and statutory "fair cross section" requirement is the "absolute disparity" test. In Olaniyi-Oke, the Fifth Circuit confronted a situation similar to that before this Court. Mr. Olaniyi-Oke had no evidence with which to challenge the selection process, which is what the relevant provision of the jury selection act provides. Rather, Mr. Olaniyi-Oke-like Mr. Cruz-Escobar here-sought to investigate the jury selection process solely because his venire had "too few" minorities.
Taylor, 419 U.S. at 527; Holland v. Illinois, 439 U.S. 474, 480-84 (1990).
United States v. Olaniyi-Oke, 199 F.3d 767, 769 (5th Cir. 1999).
The Court recognizes that unlike Mr. Olaniyi-Oke, Mr. Cruz-Escobar has provided two expert reports as evidence with which he challenges the jury selection process. However, as discussed below, notwithstanding these reports, the Court is bound to follow precedent.
Olaniyi-Oke, 199 F.3d at 772.
However, to obtain relief under the Jury Selection Act, the defendant must prove a "substantial failure to follow the Act's provisions, a substantial failure being one that destroys the random nature or objectivity of the selection process." Olaniyi-Oke, like Mr. Cruz-Escobar, failed to understand the nature of statistics. In a truly random system, minorities will be under-represented on some panels and over-represented on others; this is the essential nature of a random system. Requiring that every venire match the exact proportion of minorities in the community would fail to be random given the size of the sample. Further, a jury venire that is made up of too many Caucasian members is simply not a cognizable harm under the Jury Act: "The happenstance of disproportionately white jury is simply not enough to prevail under the Act."
Id.
Id.
Id. (citing United States v. McKinney, 53 F.3d 664, 671 (5th Cir. 1995)).
Olaniyi-Oke, 199 F.3d at 772 (citing United States v. Hemmingson, 158 F.3d 347, 358-59 (5th Cir. 1998)).
The Defendant failed to show that the San Antonio Division's process for selecting jury venires and empaneling juries violates the Jury Selection and Service Act. In this case, the Jury Administrator for the Western District of Texas filed an affidavit explaining that the master and qualified jury wheels are drawn at random from voter registrations. The affidavit showed that the plan for selecting grand and petit juries in the Western District used in this matter was not susceptible to systematic exclusion of any distinctive group. Defendant does not dispute that the process by which the jury wheel is built includes random selection. Instead, Defendant argues that because the jury wheel only selects from voter registration lists, it is always going to be under-representative.
The administrator also submitted evidence that the 2000 Census revealed that while 43.5 percent of the population in the San Antonio Division was Hispanic, the percent qualified for jury service was only 33.9 percent, leaving an absolute disparity of 9.6 percent. This evidence also revealed that 6.3 percent of the population in San Antonio Division was Black, but only 3.8 percent qualified for jury service, resulting in an absolute disparity of 2.5 percent. Courts addressing this issue have uniformly held that an absolute disparity of less than 10 percent is constitutional and falls well short of systematic exclusion. The Government also notes that there is an additional category ("unknown") on the jury-wheel break down that is not part of the census breakdown. The Government provides evidence that the "Unknown" category of the jury wheel breakdown represents 18.4 percent of the jurors. The Government asserts that common sense dictates that at least some of those 18.4 percent are minorities, therefore, the absolute disparity is likely even less than it 9.6 and 2.5 percent.
See Swain v. Alabama, 380 U.S. 202, 208-09 (1965) (10 percent absolute disparity survives constitutional scrutiny); Newberry v. Willis, 642 F.2d 890 (5th Cir. 1981) (6.5 percent absolute disparity negligible); United States v. Weaver, 267 F.3d 231 (3rd Cir. 2001) (collecting cases on this issue).
The Court appreciates the good briefing of both parties in this case. Defendant notes that the absolute disparity measure has been criticized by both scholars and jurists as being a poor standard for determining if there is a legally intolerable under-representation. However, this Court is bound by both Fifth Circuit and United States Supreme Court precedent. Defendant has not cited, and the Court cannot find, an instance in which another method was employed to determine if there has been a fair cross-section requirement violation.
Viewed in light of the clear standards and the facts of this case, Defendant's arguments that his indictment should be dismissed based upon the alleged systematic exclusion of Hispanics and Blacks from the jury venire are untenable. As a result, the Court finds that there has been neither an under-representation of Hispanics and Blacks in the jury venire or an under-representation stemming from a systematic exclusion of Hispanics and Blacks in the jury selection process.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant's Motion to the Indictment is without merit. It is therefore ORDERED that Defendant's Motion to Dismiss (Docket No. 26) is hereby DENIED.