United States v. Salvador Hernandez-Estrada

The question in this appeal is whether the United States District Court for the Southern District of California violated the Jury Selection and Service Act of 1968 (“JSSA”) or the Constitution in compiling its 2009 master jury wheel. Although the Southern District departed from the requirements of the JSSA in several re- *1019 speets, we find no reversible error in the underlying conviction.

I.

Salvador Hernandez-Estrada was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . Hernandez filed a motion to dismiss the indictment, arguing that the Southern District violated the JSSA and the Fifth and Sixth Amendments by using a juror source list consisting only of registered voters. He argued that the list underrepresented African-Americans and Hispanics. Hernandez also alleged that the Southern District violated the JSSA by (1) improperly disqualifying jurors for having insufficient English-language abilities based on their answers on the juror questionnaire; (2) improperly disqualifying jurors whose levels of English-language abilities were unclear; (3) failing to return questionnaires that omitted information on race and/or…

with whom Judge WATFORD joins, concurring:

I join Judge Hurwitz’s opinion (except footnote one) because it faithfully applies the law of our circuit. See United States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir.2005). But I do so without enthusiasm because the rule we are bound to apply is clearly wrong. It makes no sense to measure disparity for fair cross section purposes by looking at absolute disparity, and accept up to 7.7 percent of the total jury pool as a permissible deviation. See United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir.1982) (holding that 7.7 percent absolute disparity is acceptable). The absurdity of this number is brought home by observing that a group that is less than 7.7 percent of the total population can never be underrepresented, no matter how far the jury pool percentage deviates from that in the total population. See Rodriguez-Lara, 421 F.3d at 943 n. 10.

This anomaly disappears for larger groups. A group that is 75 percent of the total population could register a cognizable disparity if it were only 67 percent of the jury pool, while a group that is 7.5 percent could never register a disparity, even if entirely absent from the pool. I have…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50417 Plaintiff-Appellee, D.C. No. v. 3:10-cr-00558-

BTM-

SALVADOR HERNANDEZ-ESTRADA ,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted September 6, 2012—Pasadena, California

Filed December 5, 2012

Before: Alex Kozinski, Chief Judge, Paul J. Watford and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz; Concurrence by Chief Judge Kozinski UNITED STATES V . HERNANDEZ-ESTRADA

SUMMARY*

Criminal Law

The panel affirmed an illegal reentry conviction in a case in which the defendant argued that in compiling its 2009 master jury wheel, the Southern District of California violated the Jury Selection and Service Act of 1968 and the Constitution.

Applying the absolute disparity rule, the panel held that because a juror source list consisting only of registered voters did not substantially underrepresent African-Americans or Hispanics in the community, the Southern District’s failure…