U.S. v. Verdugo-Munoz

Full title: United States of America, Plaintiff, v. Jose Verdugo-Munoz, Defendant

Court: United States District Court, D. Arizona

Date published: Oct 12, 2005

CR-03-1161-PHX-SRB (D. Ariz. Oct. 12, 2005)

Opinion

CR-03-1161-PHX-SRB.

October 12, 2005

ORDER

SUSAN BOLTON, District Judge

At issue is a motion filed by Defendant Jose Verdugo-Munoz to dismiss his indictment (Doc. 87). The motion challenges the grand jury selection process under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. ("JSSA").

I. BACKGROUND

In November 2003, Defendant was indicted by a Phoenix, Arizona grand jury for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii).¹ On August 9, 2005, Defendant filed the instant motion to dismiss, arguing that the process employed to select the grand jury that returned his indictment violated his right to equal protection of the laws under the Fourteenth Amendment, his right to an impartial jury under the Sixth Amendment, his right to an indictment under the Fifth Amendment, and his right to a grand jury selected from a fair cross-section of the community under the JSSA, 28 U.S.C. § 1861 et seq. The parties completed briefing on Defendant's motion prior to the Ninth Circuit's decision in United States v. Rodriguez-Lara, 2005 WL 2045777 (9th Cir. Aug. 26, 2005).

1 The parties dispute which grand jury panel actually indicted Defendant. The government claims that "Grand Jury 04-1" returned the indictment, whereas Defendant claims it was "Grand Jury 202-1." Ultimately, that dispute is immaterial, as the Court's ruling is the same regardless of which party is correct.

II. LEGAL STANDARDS AND ANALYSIS

A. Sixth Amendment JSSA

The Sixth Amendment entitles criminal defendants to an impartial jury drawn from a fair cross-section of the community. U.S. Const. amend. VI; see Taylor v. Louisiana, 419 U.S. 522, 536, 95 S. Ct. 692, 700 (1975). The term "impartial jury" encompasses both grand and petit juries. See, e.g., United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989). The JSSA helps to ensure jury impartiality by requiring that all juries in federal court (both grand and petit) be "selected at random from a fair cross section of the community," and free from discrimination "on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. §§ 1861- 1862. The JSSA requires each United States district court to "devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862." 28 U.S.C. § 1863.

"The test for a constitutionally selected jury is the same whether challenged under the Sixth Amendment of the Constitution or under the Jury Selection and Service Act." United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989) (quoting United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985)). That test, which also applies in the context of grand juries, see United States v. Artero, 121 F.3d 1256, 1260 (9th Cir. 1997), places the initial burden on the defendant to 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; (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 671 (1979). If a defendant makes this prima facie showing, the burden shifts to the government to prove that "a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process . . . that result in the disproportionate exclusion of a distinctive group." Id. at 367-68, 99 S. Ct. at 674.

There is no dispute that Defendant satisfies the first prong of Duren, as Hispanics are a "distinctive group in the community." Rodriguez-Lara, 2005 WL 2045777, at *4 (citing Sanchez-Lopez, 879 F.2d at 547 (citations omitted)); Castaneda v. Partida, 430 U.S. 482, 495, 97 S. Ct. 1272, 1280 (1977).

The second prong of Duren requires a defendant to do more than simply show that in his particular venire, his "distinctive group" was underrepresented. Rather, because of the Supreme Court's use of the plural in describing the second prong of Duren, a defendant must proffer evidence that the underrepresentation has occurred in multiple venires. See Miller, 771 F.2d at 1228. Here, even assuming that Defendant has shown that his own venire was impermissibly monochromatic, he offers no evidence that other venires in this district have suffered a similar problem. On this basis alone, Defendant's indictment cannot be dismissed.

Defendant also fails to satisfy the third prong of Duren, which, while it does not require a showing that the disproportionate exclusion be intentional, the exclusion must be "systematic."² Rodriguez-Lara, 2005 WL 2045777, at *7 (citing Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004)). For example, in Duren, the Court found that women were systematically excluded from venires because, unlike men, they were permitted to opt out of jury service either by filling out a paragraph on their jury questionnaire or simply by not returning the jury questionnaire to the court. Duren, 439 U.S. at 361-62, 99 S. Ct. at 667. The underrepresentation of women was "systematic," because it arose from a flaw "inherent in the particular jury-selection process utilized." Id. at 366, 99 S. Ct. at 669.

2 Given the absence of any evidence of underrepresentation in grand jury venires beyond that which returned Defendant's indictment, it becomes very difficult to analyze the third prong of Duren, because even assuming that Defendant can point to a systemic flaw in the selection process, there is no evidence of the actual effect that the flaw may have had on the presence of particular distinctive groups in grand jury venires.

Defendant argues that the flaw in the system lies in the method used to select the 179,990 members of the grand jury master wheel from the total population of the five included counties, which is about 3.8 million people. According to Defendant, those 179,990 people are chosen by "using a ratio of the total number of voters to the total population for each of the five counties." (Def.'s Mot. at 2.) Defendant argues that this process is deficient because "it requires a lower percentage of Hispanics for a target percentage," and because it excludes certain eligible citizens who are not registered voters. (Def.'s Mot. at 3.)

Defendant's motion falls short on several levels. First, the portion of Defendant's motion where he sets forth his theory is not supported by a single exhibit, so the Court cannot evaluate whether that method was actually employed to select the grand jury master wheel. See Rodriguez-Lara, 2005 WL 2045777, at *7 (noting that a hypothesis as to the cause of underrepresentation without evidence to support it fails to satisfy the third prong of Duren); see also Randolph, 380 F.3d at 1141 (same).

Second, even assuming that the underrepresentation in grand jury venires has been unreasonable, Defendant has offered no evidence connecting the allegedly defective selection method to that unreasonable underrepresentation. See Rodriguez-Lara, 2005 WL 2045777, at *7 (concluding that the defendant had not shown systematic exclusion of Hispanics despite evidence from a sociology professor that underrepresentation of Hispanics occurred in judicial division where jury selection plan relied exclusively on voter registration lists, as there was no evidence connecting that reliance to the underrepresentation).

Third, as a general matter, the use of voter registration lists as the sole source for selection of grand jurors is not, on its face, problematic. The JSSA directs that, in formulating a "written plan for random selection of grand and petit jurors," district courts should look first to either voter registration lists or "the lists of actual voters of the political subdivisions within the district or division." 28 U.S.C. § 1863(a), (b)(2). Only "where necessary to foster the policy and protect" the legislative goals outlined in 28 U.S.C. § 1861 and 28 U.S.C. § 1862 are district courts ordered to prescribe "some other source or sources of names." 28 U.S.C. § 1863(b)(2). Here, where Defendant has offered no significant evidence of pervasive underrepresentation of certain distinctive groups, it does not appear that the jury administrator can be faulted for failing to employ a different method for selecting people for the grand jury master wheel. See United States v. Brady, 579 F.2d 1121, 1131 (9th Cir. 1978) (noting that "the legislative history [of the JSSA] indicates that the use of supplemental sources should be used only when the voter lists deviate substantially from the makeup of the local community"); see, e.g., United States v. Esquivel, 88 F.3d 722 (9th Cir. 1996) (approving use of random drawing from voter registration lists as a proper method of grand jury selection).

Finally, the process of selecting jurors from each county by allegedly "using a ratio of the total number of voters to the total population for each of the five counties" does not appear constitutionally problematic, but seems to be a fair way of ensuring that each county is properly represented in the grand jury master wheel. Defendant cites no authority that suggests otherwise.

As Defendant has failed to satisfy both the second and third prong of Duren, his indictment passes constitutional muster under the Sixth Amendment and the JSSA.

B. Fourteenth Amendment ³

3 Technically, Defendant's equal protection argument should have been made under the Fifth Amendment's Due Process Clause, as the Equal Protection Clause, by its terms, applies only to the states. U.S. Const. amend. XIV ("[N]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."). However, the Equal Protection Clause is made applicable to the federal government through the Fifth Amendment's Due Process Clause. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693 (1954).

"It is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of race or color, been excluded by the State." Castaneda, 430 U.S. at 492, 97 S. Ct. at 1279 (quotations and citations omitted). A defendant seeking to show that an equal protection violation has occurred in the context of grand jury selection must initially satisfy the following three elements:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the population called to serve as grand jurors, over a significant period of time. Finally, . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

Id. at 494, 97 S. Ct. at 1280.

Here, while Defendant satisfies the first element, he comes up short on the second and third. He has made no statistical showing of underrepresentation of Hispanic people "over a significant period of time," nor has he offered any evidence that the selection procedure is susceptible of abuse or is not racially neutral. Accordingly, Defendant's indictment was constitutionally sufficient under the Fourteenth Amendment.

C. Fifth Amendment

Defendant also charges that the grand jury selection process violated his Fifth Amendment right to an indictment. No court ever appears to have separately analyzed a grand jury selection process under this clause of the Fifth Amendment, and this Court will not be the first. To the extent that Defendant wishes to challenge his indictment under the Fifth Amendment's Due Process Clause, that argument fails for the reasons discussed in the previous section.

IT IS ORDERED denying Defendant's Motion to Dismiss (Doc. 87).