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

Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge BOOCHEVER; Concurrence by Judge KLEINFELD.

ORDER

The opinion filed on January 30, 1996, is withdrawn.

The panel has voted to deny appellant’s petition for rehearing. Judges T.G. Nelson and Kleinfeld vote to reject the suggestion for rehearing en banc and Judge Boochever so recommends.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en bane is rejected.

OPINION

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 Esquiv-el’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 (in).

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.…

concurrence and partial dissent:

If we take judicial notice of 1990 census data showing the number of Hispanies 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 establish a Sixth Amendment violation. Es-quivel 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.

The accuracy of the census data is matter of much debate. As the Supreme Court recently noted, “[djespite consistent efforts…

concurring:

I concur in the result.

88 F.3d 722 44 Fed. R. Evid. Serv. 1390 , 96 Cal. Daily Op. Serv. 4910, 96 Daily Journal D.A.R. 7900 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 July 1, 1996. Stephen R. Scarborough, Federal Defenders of San Diego, Inc., San Diego, California, for defendant-appellant. Roger Haines and Alberto A. Arevalo, Assistant United States Attorneys, San Diego, California, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California, Judith N. Keep, Chief District Judge, Presiding. D.C. No. CR-94-00773-JNK. Before: BOOCHEVER, T.G. NELSON and KLEINFELD, Circuit Judges. 1 Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge BOOCHEVER; Concurrence by Judge KLEINFELD. ORDER 2 The opinion filed on January 30, 1996, is withdrawn. 3 The panel has voted to deny appellant's petition for rehearing. Judges T.G. Nelson and Kleinfeld vote to reject the suggestion for rehearing en banc and Judge Boochever so recommends. 4 The full court has been advised of the suggestion for…