Footracer
United States v. Footracer
Opinion
Lead Opinion
Wiggins, J.
Opinion by Judge WIGGINS; Dissent by Judge PREGERSON.
Johnny Roy Footracer, a Native American, claims that he was denied his Sixth Amendment right to a jury venire reflecting a fair cross-section of the community because his criminal trial was transferred from the District of Arizona’s Prescott Division, the division in which the alleged crimes were committed, to the Phoenix *1060 Division, which contains a much smaller percentage of Native Americans. We affirm Footracer’s conviction.
I.
In September 1996, a federal grand jury indicted Johnny Roy Footracer on seven counts of various sex offenses allegedly committed against minor girls on the Navajo Indian Reservation in Arizona. The Reservation lies within the Prescott Division of the District of Arizona, and Footracer’s case originally was set for trial in the Prescott Division. The district court, however, sua sponte transferred the trial to the U.S. Courthouse in Phoenix, Arizona. 1 Footracer moved to have his trial returned to Prescott, where Native Americans constitute a much larger percentage of the population than they do in Phoenix, but the district court denied the motion and held the trial in Phoenix. The jury…
Dissenting Opinion
Pregerson, J.
dissenting:
Given the disparity between the racial and ethnic composition of the Phoenix Division jury pool and that of the communities comprising the Prescott Division, 1 I think justice would have been better *1067 served if Footracer’s trial had been returned to Prescott. In light of the serious constitutional concerns that Footracer’s motion to return raised, I would find that the district court acted outside its discretion by refusing to return the trial to Prescott.
This court has previously warned that the systematic transfer of cases from the Prescott Division to the Phoenix Division would raise serious Sixth Amendment concerns. See United States v. Etsitty, 130 F.3d 420, 425 (9th Cir.1997), amended by 140 F.3d 1274 (1998). The majority disagrees that the Sixth Amendment would be violated by this systematic transfer, but reaches its decision by importing the equal protection concept of discriminatory intent into what is a straightforward Sixth Amendment fair cross-section challenge. Because I believe that this court’s warning in Etsitty was well-founded, and because the majority’s approach is directly contrary to Duren and its progeny, I respectfully dissent.