UNITED STATES of America, Plaintiff-Appellee, v. Bertha Alicia ESQUIVEL, Defendant-Appellant

Bertha Alicia Esquivel was arrested on June 2, 1994, at the Port of Entry at San Ysidro, California, when port authorities discovered a Mexican national hidden in Esquivel’s car. A federal grand jury issued a one-count indictment against Esquivel. The indictment charged Esquivel with bringing an illegal alien into the United States, in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and (iii).

Esquivel made a motion to dismiss the indictment on the ground that the grand jury which issued the indictment was selected in an unconstitutional manner. The motion was denied, and after a two-day trial, the jury returned a guilty verdict. Esquivel appeals the district court’s denial of her motion to dismiss. We AFFIRM.

DISCUSSION

I. Jury Selection

A. Background

Under the Sixth Amendment of the United States Constitution and the Federal Jury Service and Selection Act of 1968 (“JSSA”), 28 U.S.C. §§ 1861-78 , a criminal defendant is guaranteed the right to be tried by an impartial jury drawn from a representative cross section of the community. This constitutional guarantee applies to both grand and petit juries. The Sixth Amendment provides, in relevant part: “In all criminal…

partial concurrence and partial dissent:

If we take judicial notice of 1990 census data showing the number of Hispanics eligible for jury service, which was presented to us two weeks before the oral arguments on this appeal, I would agree with the majority’s opinion holding that Esquivel has failed to make a prima facie case of a Sixth Amendment violation. Esquivel opposed the request contending that the late presentation did not afford her the opportunity to confer with experts and to place experts’ opinions before the court.

If this case merely affected Esquivel, I would have no hesitancy in joining the majority opinion, but it affects the jury representation of a “distinctive,” “cognizable” group whose numbers are between one-fourth and one-third of the residents of the Southern District of California. In order to preserve the appearance of fairness and to recognize the interest of this sizable group of residents, I believe that the better procedure is to remand the judicial notice request to the district court so that Esquivel has a full opportunity to challenge the figures.

I note that in a case from the U.S. Court of Appeals for the Second Circuit, the Supreme Court has…

75 F.3d 545 96 Cal. Daily Op. Serv. 636 , 96 Daily Journal D.A.R. 1026 UNITED STATES of America, Plaintiff-Appellee, v. Bertha Alicia ESQUIVEL, Defendant-Appellant. No. 94-50603. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 14, 1995. Decided Jan. 30, 1996. Stephen R. Scarborough, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant. Roger W. Haines, Jr. (argued), and Alberto A. Arevalo (on the brief), Assistant United States Attorneys, San Diego, California, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: BOOCHEVER, T.G. NELSON and KLEINFELD, Circuit Judges. OPINION T.G. NELSON, Circuit Judge: 1 Bertha Alicia Esquivel was arrested on June 2, 1994, at the Port of Entry at San Ysidro, California, when port authorities discovered a Mexican national hidden in Esquivel's car. A federal grand jury issued a one-count indictment against Esquivel. The indictment charged Esquivel with bringing an illegal alien into the United States, in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and (iii). 2 Esquivel made a motion to dismiss the indictment on the ground…