Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

1 JOHN M SEARS

2 107 North Cortez Street, Suite 104 3 Telephone: (928) 778-5208 4 PETER SCHOENBURG
Prescott, Arizona 86301-3000

Arizona State Bar No. 005617

5 500 Fourth Street NW, Suite 400 6 Telephone: (505) 243-1443 8 9 10 11 12 13 14 15 16 17 19
-vsLuis A. Cisneros, et. al. United States of America, Plaintiff,

New M exico State Bar No. 2397

Albuquerque, New Mexico 87102

7 Attorneys for Defendant Luis Cisneros
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR 03-730-PHX SRB DEFENDANTS' MOTION TO DISMISS THE INDICTMENT BECAUSE THE GRAND JURY SELECTED IN THE CASE FAILED TO REPRESENT A FAIR CROSSSECTION OF THE COMMUNITY, AS W ILL THE FUTURE PETIT JURY

Defendants.

Excludable delay under 18 U.S.C. §3161 (h)(1)(F) will occur as a result of this

18 motion or of an order based thereon.
COM ES NOW Defendant Luis Cisneros, by and through counsel, and on behalf of

20 all of the Co-Defendants participating in the Joint Defense Agreement, and hereby moves 21 the Court to dismiss the Indictment filed in this case because the grand jury that indicted 22 Defendants failed to represent a fair cross-section of the community as will the petit jury 23 that will be selected to hear the case. As grounds, Defendants state: 24 I. 25
BACKGROUND The grand jury which indicted Defendants on October 4, 2005 was selected from

26 state voter registration rolls under the Court's General Order 99-14, hereinafter referred to 27 as the "Jury Plan." The Court's Jury Plan was developed as a requirement of the Jury 28 Selection of Service Act of 1968, 28 U.S.C. § 1861 et seq. The Jury Plan divides the
federal District of Arizona into three jury divisions, the Phoenix Division, the Prescott

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1 Division and the Tucson Division.1 Although the Tucson Division selects its grand juries 2 solely from the qualified jury wheel for the Tucson Division, any grand jury for the 3 Phoenix Division is selected on a pro-rata basis from the qualified jury wheels of both the 4 Phoenix Division and the Prescott Division.2 5
To select a Phoenix grand jury, the Court must first create two master jury wheels;

6 one for the Phoenix Division and one for the Prescott Division. The master wheel for 7 each division is formed by selecting a pre-determined number of names from the voter 8 registration rolls for each county within that division. The names for the master jury 9 wheel are selected so that each county is proportionately represented; that is "as the 10 number of names on that county's voter registration list bears to the total number of 11 names on the voter registration list for all counties within that division." Jury Plan, p. 3. 12
Once the master wheel for each division has been compiled, a qualified jury wheel

13 for the division is created from the master jury wheel. The qualified jury wheel is made 14 to screen out those jurors who are either ineligible or otherwise exempt from performing 15 jury service. To create a qualified jury wheel, a predetermined number of juror 16 questionnaires are mailed to randomly selected individuals from the master jury wheel. 17 The juror questionnaires are sent in a manner to "insure that the mathematical odds of any 18 single name being picked are substantially equal." Jury Plan, p. 4. Hence, juror 19 qualifications should be sent to individuals in a manner that mirrors the county-by-county 20 proportionate representation of the master jury wheel. After the qualification 21 questionnaires are returned, all registered voters who are determined to be qualified for 22 service are then placed in the division's qualified jury wheel. 23 24 25 26 27
The Phoenix Division consists of Maricopa, Pinal, Yuma, La Paz and Gila Counties; the Prescott Division consists of Apache, Coconino, Mohave, Navajo and Yavapai Counties; and the Tucson Division consists of Pima, Cochise, Santa Cruz, Graham and Greenlee Counties.
2 1

28 Plan, p. 8.

By design, the Jury Plan does not provide for grand juries in the Prescott Division. Jury 2

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1

When the jury clerk selects individuals for a grand jury array to meet at Phoenix,

2 the jury clerk summons "a proportionate share of names . . . from the Phoenix Division 3 and Prescott Division qualified wheels . . . . The pro-rata share shall be based on the total 4 number of persons on the Voter Registration List of each division as compared to the total 5 number of persons on the Voter Registration List of both divisions." Jury Plan, p. 8. 6 Once the grand jury array meets at the Courthouse, names are drawn by lot for the 7 "required number of Grand Jurors to serve." Id. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 II. THE INDICTMENT MUST BE DISMISSED BECAUSE THE GRAND JURY THAT ISSUED IT WAS NOT "SELECTED AT RANDOM FROM A FAIR CROSS SECTION OF THE COMMUNITY" AS REQUIRED BY THE JURY SELECTION AND SERVICE ACT, THE SIXTH AMENDMENT AND THE FIFTH AMENDMENT. The Jury Selection and Service Act declares that every criminal defendant in federal court has the right to have his grand and petit jury "selected at random from a fair cross-section of the community." 28 U.S.C. § 1861. In order to fulfill the random selection obligation, the Jury Plan for Arizona requires the jury clerk to summons individuals from the Phoenix Division and the Prescott Division in numbers equal to each division's proportionate share of voter registration rolls. Once the array of potential grand jurors convenes at the Courthouse in Phoenix, Arizona, names are drawn by lot to determine who will actually serve. Given the language of Arizona's Jury Plan, one would expect that any grand jury array summoned to the Phoenix Courthouse would approximate the proportionate representation of the Phoenix and Prescott Divisions. In other words, the voter registration lists of the respective divisions would dictate that roughly 15.95% of grand jurors would arrive from the Prescott Division and 84.05% would hail from the Phoenix

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1 Division. As the attached affidavit of demographer Brian Sanderoff 3 reflects, however, 2 the ratio of persons who appear for grand jury service at the Phoenix Courthouse does not 3 reflect the pro-rata shares for each division. See Exhibit A (hereinafter referred to as the 4 Sanderoff Affidavit). After analyzing the data provided thus far by the Jury Clerk for the 5 District of Arizona, it is apparent that over 29% of the grand jurors appearing for grand 6 jury service at the Phoenix Courthouse are from the Prescott Division. In terms of actual 7 statistical disparity, the Prescott Division is over represented on grand jury arrays by 8 13.08%, which is a substantial, constitutionally-cognizable deviation from the pro-rata 9 composition expressly contemplated by the Jury Plan. Cf. Hernandez v. Texas, 347 U.S. 10 475, 480-81 (1954) (holding that a race-based disparity of 14% was constitutionally 11 deficient). Of course, the individuals who appear for the grand jury array from the 12 Phoenix Division are, therefore, under-represented by the same amount. 13
This imbalance creates significant statutory and constitutional problems. Under

14 the statutory scheme, any federal jury plan must protect the right of each citizen to be 15 chosen for grand jury service. 28 U.S.C. § 1861 (stating that "all citizens shall have the 16 opportunity to be considered for service on grand and petit juries"). This ideal of equality 17 is embodied in the District of Arizona's Jury Plan, which expressly states that the 18 selection of juror "names from the source list and the master wheel must also insure that 19 the mathematical odds of any single name being picked are substantially equal." Jury 20 Plan, p. 4. The Jury Plan's mathematical fairness principle--that each potential juror has 21 an equal right to be called upon for service--is mirrored for the selection of grand jury 22 arrays. That is, in "selecting the names for a Grand Jury array to serve at Phoenix, a 23 proportionate share of names shall be drawn from the Phoenix Division and Prescott 24 Division qualified wheels in accordance with the random selection method described in 25 this plan." Jury Plan, p. 8 (emphasis added). The italicized language indicates that under 26 27 28
Brian Sanderoff's Affidavit is attached as Exhibit A. For the Court's edification, Brian Sanderoff's curriculum vitae is attached as Exhibit B. To conserve print, Mr. Sanderoff's curriculum vitae does not include all of his publications beyond page 4. 4
3

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1 the Jury Plan the method of random selection for grand jury arrays must "insure that the 2 mathematical odds of any single name being picked are substantially equal." Jury Plan, p. 3 4; United States v. Green, 389 F. Supp. 2d 29, 66 (D. Mass. 2005) (holding that a jury 4 plan violated the Jury Selection and Service Act because "the `mathematical odds' that 5 any given name will be picked are not `substantially equal' across the region"). 6
From the statistical analysis of individuals who appeared for the grand jury arrays,

7 however, it is evident that the method employed to call prospective grand jurors does not 8 substantially comply with the either the language of the Jury Plan or the statutory 9 directive of 18 U.S.C. § 1861.4 For that reason alone, the Indictment should be dismissed 10 under 18 U.S.C. § 1867(d) because the manner in which the grand jury array was selected 11 is an unauthorized modification of the Jury Plan under the Jury Selection and Service Act. 12 18 U.S.C. § 1863(c); Savino v. County of Suffolk, 774 F. Supp. 756 (E.D.N.Y. 1991) 13 (holding that once a jury plan is approved, the district court loses the authority "to amend 14 or alter the plan in any way"); In re United States, 426 F.3d 1 (1st Cir. Oct. 7, 2005) 15 (same). 16
The statistical evidence shows that the grand juror selection process is

17 impermissibly weighted in favor of the Prescott Division, where the population of Native 18 Americans is high, which favorably offsets the under-representation of Native Americans 19 in the source lists used to create the jury wheels, i.e. the voter registration rolls. This kind 20 of adjustment to the qualified jury wheels to compensate for the under-represented groups 21 on the source list used to select jurors was condemned in United States v. Ovalle, 136 22 F.3d 1092, 1099 (6th Cir. 1998). In Ovalle, the jury plan for the Eastern District of 23 Michigan accommodated the under-representation of African-Americans on the master 24 jury wheel by removing a sufficient number of all persons aside from African-Americans 25 from the master wheel until the number of African-Americans on the master wheel 26 27 28
The Court should note that a jury composition challenge under the Jury Selection and Service Act employs the same standard and is practically equivalent to a Sixth Amendment challenge. United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985). 5
4

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1 reflected the population at large. The Sixth Circuit concluded that by manipulating the 2 master wheel to exclude races other than African-Americans, the plan violated the Jury 3 Selection and Service Act, the Sixth Amendment, and the Fifth Amendment. Ovalle did 4 not have to resort to the traditional three-part constitutional tests for analyzing fair-cross 5 section and equal protection violations because the evidence directly showed that the 6 individuals who were eliminated from consideration were excluded on the basis of their 7 race, which is a per se violation of 28 U.S.C. § 1982 and the federal constitution. 8
The jury data disclosed to counsel indicates that shifting the representation of the

9 grand jury arrays away from the Phoenix Division to the Prescott Division bolstered the 10 Native American representation within the Prescott Division while at the same time 11 denying all other groups in the Phoenix Division the opportunity to participate. Given 12 that the source lists for jurors does not adequately represent Native Americans in the first 13 place, the participation of the Prescott Division is favored in order for the Native 14 American population of Northern Arizona to be adequately represented in the Phoenix 15 grand jury arrays. It is no defense to a jury composition challenge to argue that a racial 16 manipulation is for a benign or remedial purpose. Any selection method that sorts 17 "individuals on racial grounds fall[s] within the core of the Equal Protection Clause's 18 prohibition" and obviates the need to resort to the three-factor discrimination test. 5 19 Ovalle, 136 F.3d at 1105 (internal punctuation omitted) (noting that when the "disparity is 20 sufficiently large over a significant period of time, then it is unlikely that the disparity is 21 due solely to chance or accident, and in the absence of evidence to the contrary, a court 22 should conclude that racial or other class-related factors entered into the selection 23 process"). 24 25 26 27 28
Defendants are not waiving their right to argue that they have met the constitutional analysis under either Duren v. Mississippi, 439 U.S. 357, 363 (1979)(addressing the Sixth Amendment), or Castaneda v. Partida, 430 U.S. 482, 494 (1977) (addressing the Fifth Amendment). Defendants' contention here is that the method of selection is fatally flawed because it violates the random selection requirement in order to achieve a racially balanced result, which, in fact, is an impermissible exclusion of non-Native Americans under Ovalle. While the jury wheel manipulation here may be subtler than in Ovalle, it is still demonstrably race-based. 6 Case 2:03-cr-00730-SRB Document 1364 Filed 11/16/2005 Page 6 of 15
5

1

In the next few days, Defendants will request additional jury data and information

2 to further explore these preliminary results. Defendants expressly reserve the right to 3 examine other factors that may highlight problems with other distinctive groups based on 4 age, educational level, and income level as that information is made available to them. 5 E.g., In re United States, 426 F.3d 1 (1st Cir. Oct. 7, 2005). Additional data, not yet 6 disclosed or made available in any other fashion, will certainly shed more light on the 7 juror selection process in Arizona. 8 9 III. 10 11 12 13 14 15 16 17 18 19
THE SYSTEMIC EXCLUSION OF SIGNIFICANT NUMBERS OF HISPANICS, NATIVE AMERICANS AND YOUNG JURORS FROM JURY POOLS VIOLATES THE JURY SELECTION AND SERVICE ACT, THE SIXTH AMENDMENT AND THE EQUAL PROTECTION CLAUSE OF THE FIFTH AMENDMENT. Hispanics, Native Americans, and individuals under thirty-four years of age are routinely under-represented in the jury pools in Arizona. This fact raises constitutional concerns because, at least for racial classifications, it "has long been established that racial groups cannot be excluded from a venire from which a jury is selected". Holland v. Illinois, 493 U.S. 474, 478 (1990). This is true of both grand jury panels and petit jury panels.6
6

Systematic exclusion of African-Americans from grand jury panels has repeatedly

20 been condemned. George v. McCollum, 505 U.S. 42 (1992); Powers v. Ohio, 499 U.S. 400 (1991); 21 Louisiana, 405 U.S. 625 (1972); Arnold v. North Carolina, 376 U.S. 773 (1964); Eubanks v. 22 Louisiana, 356 U.S. 584 (1958); Reece v. Georgia, 350 U.S. 85 (1955); Cassell v. Texas, 339 U.S. 23 Louisiana, 306 U.S. 354 (1939); Rogers v. Alabama, 192 U.S. 226 (1904); Carter v. Texas, 177 U.S. 24 442 (1900); Bush v. Kentucky, 107 U.S. 110 (1883). Similarly, exclusion from petit juries is 25 26 27 28
282 (1950); Hill v. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128 (1940); Pierre v. Vasquez v. Hillery, 474 U.S. 254 (1986); Rose v. Mitchell, 443 U.S. 545 (1979); Alexander v.

unconstitutional. Avery v. Georgia, 345 U.S. 559, (1953); Hollins v. Oklahoma, 295 U.S. 394 (1935). Combined discrimination on grand and petit juries is also violative of the constitution. Sims v. Georgia, 389 U.S. 404 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Whitus v. Georgia, 385 U.S. 545 (1967); Coleman v. Alabama, 377 U.S. 129 (1964); Patton v. Mississippi, 332 U.S. 463 (1947); Hale v. Kentucky, 303 U.S. 613 (1938); Norris v. Alabama, 294 U.S. 587 (1935); Martin v. Texas, 200 U.S. 316 (1906); Neal v. Delaware, 103 U.S. 370 (1881), Strauder v. West Virginia, 100 U.S. 303 (1880). 7

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1

Brian Sanderoff's Affidavit shows that Hispanics, Native Americans,7 and persons

2 under thirty-four years of age are significantly under-represented in Arizona's jury pools. 3 Defendants contend that the systemic under-representation is the product of using voter 4 registration rolls as source lists. This use of flawed source data violates the provisions of 5 both the Sixth and Fifth Amendment. When making a claim that the jury selection 6 process violates the fair cross-section requirement of the Sixth Amendment, 8 Defendants 7 must show: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
7

(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; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1995) (quoting Duren v. Missouri, 439 U.S. at 364). To prevail on a Fifth Amendment challenge, Defendants must "establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied." Castaneda v. Partida, 430 U.S. 482, 494 (1977). In addition, the degree of under-representation must occur over a significant period of time. Id. The difference between a Sixth Amendment claim and one under the Fifth Amendment is whether the exclusion is purposeful. In other words, it is the disproportionate representation alone that gives rise to a Sixth Amendment claim, whereas a Fifth Amendment case must show some type of discriminatory intent. As the First Circuit has stated in regard to a Sixth Amendment claim:

26 juries only because the requirement of random selection is ignored. 27 8 28 equivalent standards.

As discussed above, Native Americans are proportionately represented on Phoenix grand

Again, the constitutional and statutory standards are treated for most purposes as the 8

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1 2 3 4

The issue is not whether the discrepancy was purposeful; Duren . . . defined systemic exclusion as simply one that was "inherent in the particular jury selection process; viz., the sytem's result, regardless of intent. We are not concerned about perfection, but, assuming a distinctive group, a process which, however neutral on its face, consistently underran by some 70% , providing one juror when there should have been four, is surely excessive.

5 LaRoche v. Perrin, 718 F.2d 500, 503 (1st Cir. 1983), overrruled on other grounds by 6 Barber v. Ponte, 772 F.2d 982 (1985). Like the Fifth Amendment claim, however, 7 systematic exclusion under the Sixth Amendment must be more than a statistical anomaly, 8 it must result "from a system of selecting prospective jurors that is inherently flawed at 9 obtaining venires which fairly represent the ethnic breakdown of the community." United 10 States v. Ruiz-Castro, 92 F.3d 1519 at 1527 (10th Cir. 1996). 11 12 13
A. Native Americans, Hispanics, and adults under the age of thirty-four are each a distinctive and cognizable group. Without question, Hispanics constitute a constitutionally cognizable group under

14 either constitutional standard, Hernandez v. New York, 500 U.S. 352 (1991); United 15 States v. Alcantar, 897 F.2d 436 (9th Cir. 1990), as do Native Americans. Yazzie, 660 16 F.2d at 426. Hence, under either constitutional standard the first element of the analysis 17 is satisfied for these two groups. 18
Defendants concede, however, that circuit courts have uniformly held that age-

19 based groups of young adults have not enjoyed recognition as a distinctive group. United 20 States v. Potter, 552 F.2d 901, 905 (9th Cir. 1977); Johnson v. McCaughtry, 92 F.3d 585, 21 593 (7th Cir. 1996) (collecting cases). The Supreme Court, however, has not addressed 22 the issue. Barber v. Ponte, 772 F.2d at 986. While respectfully disagreeing with circuit 23 precedent, see United States v. Butera, 420 F.2d 564 (1st Cir. 1970), overruled by Barber 24 v. Ponte, 772 F.2d 982, 996 (1st Cir. 1985)(en banc), Defendants request at the very least 25 the opportunity to make a full record at an evidentiary hearing on their age-based claim. 26 27 28
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28

B.

Native Americans, Hispanics and adults under thirty-four are significantly under-represented in jury pools in numbers that (1) are not fair and reasonable in relation to the number of such persons in the community and (2) show that even though the selection process is seemingly neutral on its face, as applied it fails to uphold the stated goals and policy of the Jury Selection and Service Act.

By statutory and constitutional mandate, Defendants are guaranteed a randomly selected jury from a fair cross section of the community both by constitutional right and statute. 28 U.S.C. § 1861 (providing criminal defendants with "the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes"). Under the statutory scheme, voter registration lists are the preferred source for prospective jurors, however, a jury plan "shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by §§ 1861 and 1862." 28 U.S.C. § 1863(b)(2). The right secured by 28 U.S.C. § 1862 mandates that no jury plan may exclude a citizen from Defendants' grand or petit jury based on the citizen's "race, color, religion, sex, national origin, or economic status." At least one district court within the Ninth Circuit has recognized that voter registration rolls are not necessarily a complete source for the selection of jurors. In United States v. Pleier, 849 F. Supp. 1321, 1324 (D. Alaska 1994), the Court observed that the voting lists "need not perfectly mirror the percentage structure of the community. But any substantial percentage deviations must be corrected by the use of supplemental sources." (quoting House Report No. 1076, at 1794). In a well-reasoned consideration of this issue, the Third Circuit has observed: The imbalance necessary to establish an equal protection or Sixth Amendment violation in the composition of a jury venire is not determined by a bright line test ... The Court has, however, recognized that it may be possible to infer that unconstitutional exclusion of cognizable groups exists when there is a disparity between a group's population figures and its representation in the jury venire sufficiently large that it is extremely unlikely that the disparity results from random chance.

27 Ramseur v. Beyer, 983 F.2d 1215, 1231 (3rd Cir. 1992).

10

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1

To gauge under-representation, courts have relied upon the mathematical concepts

2 of absolute disparity, comparative disparity, and deviation from expected random 3 selection. Absolute disparity is a straightforward comparison of the percentage of a 4 certain population group eligible for jury duty and the percentage of that group who 5 actually appear in the venire. Yazzie, 660 F.2d at 427. In cases without direct proof of 6 systematic failures in the jury selection process, absolute disparities of greater than 11% 7 have been deemed to establish substantial under-representation. Jones v. Georgia, 389 8 U.S. 24, 25 (1967)(14.7%); Hernandez v. Texas, 347 U.S. 475, 480-81 (1954)(14%); 9 Stephens v. Cox, 449 F.2d 657, 659-60 (4th Cir. 1971)(15%). 10
Occasionally, however, the overall population of a cognizable group is too small to

11 be measured meaningfully in terms of actual disparity because the composition of the 12 group in the community may be less than 10% or 15%. In this case, for example, Native 13 Americans in the Phoenix Division make up only 2.22% of all of the adult citizens who 14 reside there. If actual disparity were the only measurement with any constitutional 15 significance, the complete exclusion of Native Americans from the jury pools would not 16 be constitutionally significant. To account for such situations, courts may resort to 17 comparative disparities to gauge the under-representation of a group. Pleier, 849 F. 18 Supp. at 1329 (observing that while the Ninth Circuit favors the use of actual disparity, 19 "comparative disparity can be used as an adjunct to absolute disparity as a means for" 20 assessing a constitutional violation); Green, 389 F. Supp. 2d at 53 n.44; United States v. 21 Weaver, 267 F.3d 231, 243 (3 rd Cir. 2001) (considering comparative disparity to "obtain 22 the most accurate picture possible"). Comparative disparity is calculated by dividing the 23 absolute disparity percentage by the percentage of the group in the entire population; the 24 figure measures the diminished likelihood that members of an under-represented group 25 will be called for jury service. 26
In examining the numerical discrepancies in the Native American and Hispanic

27 representation on voter lists, this Court would be better served by using the comparative 28 disparity test than the absolute disparity test. For example, the exclusive use of the
11

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1 absolute disparity test in assessing whether federal jury wheels fairly represent the entire 2 population will always penalize and exclude Native Americans from jury service. Their 3 population, as a gross percentage of the people living in the state, is not likely to ever 4 approach a size sufficient to satisfy the absolute disparity test, which requires a disparity 5 in the neighborhood of ten percent to be constitutionally significant. Clearly, the statutory 6 and constitutional obligations of this court to ensure a fair cross section of the community 7 in its juror pools mandate that a comparative disparity test be implemented when 8 considering Native American participation in the jury process. Significant, distinctive 9 groups in Arizona should be recognized and included in the jury selection process even if 10 their numbers are not as sizeable as Anglo populations. Native Americans and Hispanics 11 represent an indispensable part of the traditional "tri-cultural" profile of Arizona and it is 12 critical that their appearance on federal juries should not be disregarded simply because 13 the actual disparity test does not recognize their vital role in Arizona's community. 14
The Jury Plan uses voter registration lists to compile its jury pools. The Clerk's

15 office has provided petit jury venire data from the 2001-2002 master wheel, the current 16 2005-2006 master wheel, and the grand jury array data from 2001-2002. As the above 17 authorities show, while the use of voter registration records is, on its face, a racially 18 neutral basis for compiling a jury list, if this method consistently under-represents distinct 19 groups it may fail to pass constitutional muster.9 20
The statistical analysis by Brian Sanderoff shows that there is significant under-

21 representation of Native Americans, Hispanics, and adults under the age of thirty-four in 22 the petit jury pools, and a significant under-representation of Hispanics and young adults 23 in the grand jury arrays. Native Americans, for example, comprise 2.22% of the adult 24 citizen population for the Phoenix Division, however they make up only 1.12% of the jury 25 venires. In terms of actual disparity there is a difference of 1.10%, which is not 26 27 28
To the extent Defendants do not have sufficient data to demonstrate systematic underrepresentation over the course of time, Defendants will augment their next request for jury data accordingly. 12
9

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1 considered meaningful under an actual disparity analysis. This is, as explained earlier, 2 due to the small percentage of Native Americans in the overall population of the Phoenix 3 Division. Using a comparative analysis, however, Native Americans are 49.55% less 4 likely to appear for petit jury service than in the population at large. Defendants argue 5 that under the circumstances here, Native Americans being half as likely to be called for 6 jury duty is significant and constitutes a constitutional injury to Defendants. 7
In a similar manner, Hispanics account for 14.37% of the adult citizen population

8 of the Phoenix Division, but comprise only 12.93% of the petit jury venire. In terms of 9 actual disparity, there is a 1.10% difference in representation. In comparative terms, 10 however, the likelihood that a Hispanic will appear for petit jury service in Phoenix is 11 10.02% lower than would be achieved by randomly selecting a venire from the population 12 at large. For grand jury arrays the actual disparity is 3.58% and the comparative disparity 13 is 27.39%. See Exhibit A. Once again, there is a significant under-representation of a 14 distinct group and, therefore, a violation of Defendants' constitutional rights. 15
The most significant disparities relate to the age of the jurors. Although the 2000

16 census reports that 34.87% of the adult population for the Phoenix Division is between 17 the age of 18 and 34, the persons appearing for petit jury service only comprise 17.82% of 18 the potential jurors. In terms of actual disparity there is a 17.05% difference, which is a 19 constitutionally cognizable deficiency. Of course, the flip side of the age problem is that 20 the missing young adults are offset by individuals over 50 and 64 years old, which, while 21 representing only 18.80% of the adult population, comprise over 35.54% of the potential 22 petit jurors; a difference of 16.74%. Obviously, the age of the jurors appearing for 23 service does not represent a fair cross-section of the community. The statistics are similar 24 for grand jury arrays. This too creates a constitutional violation. 25
Ordinarily, for Fifth Amendment claims a person challenging the jury composition

26 must show that the group at issue was singled out for different treatment. Nevertheless, 27 as the Sixth Circuit has observed, "if a disparity is sufficiently large over a period of time, 28 then it is unlikely that the disparity is due solely to chance or to accident, and in the
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1 absence of evidence to the contrary, a court could conclude that racial or other class2 related factors entered into the selection process." Jefferson v. Morgan, 962 f.3d 1185, 3 1188-89 (6th Cir. 1992). Defendants would like additional jury data to demonstrate that 4 the above disparities have been in existence for a long period of time. Nevertheless, 5 Defendants are confident that the disparities addressed here are the result of a flawed data 6 source for jurors and that, when confronted with these chronic, significant disparities, the 7 court will conclude that the source material must be augmented as mandated by 28 U.S.C. 8 § 1863(b)(2). 9
Defendants requests an evidentiary hearing in order to present, in more detail, the

10 facts and argument in support this motion. In brief, counsel will show that there is a 11 longstanding discrepancy in Arizona between the ethnic mix and ages of members of the 12 community when compared to venires selected by the Court for jury service. This 13 discrepancy is due to a systematic flaw in the jury selection process because the Jury Plan 14 relies on the voter registration lists even though it is well known that the use of those 15 voter lists will result in petit and grand juries that fail to approximate the numbers of 16 Native Americans, Hispanics, and young adults in the community. Under the plain terms 17 of the Jury Selection and Service Act, the voter registration rolls should be augmented 18 with additional source material when the jury wheels fail to adequately represent a fair 19 cross-section of the relevant communities in Arizona. 28 U.S.C. § 1863(b)(2). 20 21 IV. 22 23 24
THE IMPACT OF THE COURT'S OCTOBER 18, 2005 (DKT. 1303) ORDER SETTING FORTH CRITERIA FOR THE EXCLUSION OF JURORS WILL SERVE TO EXACERBATE THE STATISTICAL ANOMALIES ALREADY PRESENT IN THE JURY POOL According to Brian Sanderoff's affidavit, the Court's criteria for excluding jurors

25 from service in this case will potentially magnify the statistical irregularities that have 26 been highlighted in this motion. To fully analyze the impact of the Court's exclusion 27 order, however, further demographic work must be performed to meaningfully address 28 the precise effect of the Court's order. Defendants request leave of the Court for Mr.
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1 Sanderoff to review on a county by county basis how (1) a full time worker in a family, 2 (2) income levels by family, (3) family type, and (4) the availability of transportation will 3 effect the statistical analysis set forth in this motion. 4 5 V. 6
CONCLUSION As Defendants have made a prima facie showing on their statutory and

7 constitutional claims, the burden in shifted to Plaintiff to demonstrate that the exclusions 8 addressed above are legitimate and lawful. Duren, 439 U.S. at 364. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
15 By: s/ Peter Schoenburg Peter Schoenburg Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP 500 Fourth Street NW, Suite 400 Albuquerque, New Mexico 87102 (505) 243-1443 John M . Sears 107 North Cortez Street Prescott, Arizona 86301 (928) 778-5208 COUNSEL FOR LUIS A. CISNEROS Respectfully submitted this 16 th day of November, 2005,

Case 2:03-cr-00730-SRB

Document 1364

Filed 11/16/2005

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