United States v. Salvador Hernandez-Estrada

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-1

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 En Banc

December 10, 2013—San Francisco, California

Filed April 30, 2014

Before: Alex Kozinski, Chief Judge, and Sidney R.

Thomas, Barry G. Silverman, Susan P. Graber, Ronald M.

Gould, Richard A. Paez, Johnnie B. Rawlinson, Carlos T.

Bea, Milan D. Smith, Jr., N. Randy Smith and Jacqueline

H. Nguyen, Circuit Judges.

Opinion by Judge Thomas;

Concurrence by Judge Milan D. Smith, Jr.;

Concurrence by Judge N.R. Smith

2 UNITED STATES V. HERNANDEZ-ESTRADA

SUMMARY*

Criminal Law

The en banc court affirmed a conviction in a case in

which the defendant argued that the United States District

Court for the Southern District of California’s jury selection

procedures violated the Jury Selection and Service Act of

1968, the equal protection component of the Fifth

Amendment, and the fair cross-section requirement of the

Sixth Amendment.

The en banc court overruled this court’s prior exclusive

reliance on the absolute disparity test in fair cross-section and

equal protection cases, and permitted district courts to

analyze such cases using the most appropriate methods

applicable to the particular challenge. The en banc court held

that courts may use one or more of a variety of statistical

methods to respond to the evidence presented, and the

challenging party must establish not only statistical

significance, but also legal significance.

The defendant argued that the Southern District violated

the fair cross-section requirements of the Jury Selection Act

and the Sixth Amendment by exclusively using registered

voter rolls as its juror source list, resulting in

underrepresentation of African American and Hispanic

citizens in the jury pool. The en banc court held that even

assuming that the defendant established that the

representation of African Americans and Hispanics in venires

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. HERNANDEZ-ESTRADA 3

from which juries are selected is not fair and reasonable in

relation to the number of such persons in the community, he

failed to provide evidence that such underrepresentation is

due to systematic exclusion by the Southern District, and

therefore failed to establish a prima facie fair cross-section

case under the Jury Selection Act or the Sixth Amendment.

The en banc court likewise held that because there is no

evidence of discriminatory intent, the defendant cannot make

out a prima facie case of an equal protection violation.

The en banc court held that the Southern District did not

commit substantial violations of the Jury Selection Act (a) by

using outdated text in an English proficiency question on its

prospective juror questionnaire; (b) by permitting

unsupervised court clerks to dismiss a small number of

prospective jurors based on professed difficulty

comprehending English; (c) by failing to return jury

questionnaires to prospective jurors who neglected to answer

race and ethnicity questions; or (d) by failing to keep up-to-

date jury representativeness statistics on regular Form AO-12

reports unless prompted by litigation.

Concurring in the judgment, Judge M. Smith, joined by

Judges Silverman and Bea, would affirm on the basis that the

defendant’s fair cross section claim fails under the absolute

disparity test. Judge M. Smith wrote that by overruling

circuit precedent requiring exclusive application of that test,

the majority needlessly raises a host of difficult questions for

which there are no clear answers, and it leaves trial courts

with little guidance on how to fulfill their responsibilities in

such cases.

Concurring in the judgment, Judge N.R. Smith would

affirm because the defendant’s fair cross-section claims fail

4 UNITED STATES V. HERNANDEZ-ESTRADA

under the tests used by any United States Circuit Court of

Appeals.

COUNSEL

Michele A. McKenzie (argued), Federal Defenders, San

Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

David Curnow, and Victor P. White (argued), Assistant

United States Attorneys, San Diego, California, for Plaintiff-

Appellee.

OPINION

THOMAS, Circuit Judge:

The Sixth Amendment and the Jury Selection and Service

Act of 1968 (“the Jury Selection Act”) afford criminal

defendants “the right to be tried by an impartial jury drawn

from sources reflecting a fair cross section of the

community.” Berghuis v. Smith, 559 U.S. 314, 319 (2010).

Our circuit precedent required courts to evaluate challenges

to the fair cross-section requirement using the “absolute

disparity” test. United States v. Rodriguez–Lara, 421 F.3d

932, 943 (9th Cir. 2005). On re-examining the question, we

conclude that confining a fair cross-section analysis to the

absolute disparity test is inappropriate. However, we affirm

the conviction in this case on other grounds.

UNITED STATES V. HERNANDEZ-ESTRADA 5

I

Salvador Hernandez-Estrada (“Hernandez”) was indicted

on February 18, 2010, for being a deported alien found in the

United States in violation of 8 U.S.C. § 1326. Hernandez

moved to dismiss the indictment, arguing that the United

States District Court for the Southern District of California

(“Southern District”) had violated the Jury Selection Act, the

equal protection component of the Due Process Clause of the

Fifth Amendment, and the fair cross-section requirement of

the Sixth Amendment.

Hernandez primarily assailed the Southern District for its

failure to supplement its juror source list, beyond the use of

voter registration rolls, with sources such as Department of

Motor Vehicle records. Hernandez also argued that the

Southern District violated the Jury Selection Act by (1) using

outdated text in the English proficiency question on its

prospective juror questionnaire to disqualify prospective

jurors improperly under a superseded legal standard;

(2) allowing unsupervised court clerks to disqualify

prospective jurors who answered in the affirmative regarding

their English proficiency but expressed doubts about their

linguistic abilities elsewhere on the form; (3) failing to return

juror questionnaires to prospective jurors who did not answer

the form’s race and ethnicity questions; and (4) failing to

maintain and report jury wheel representativeness statistics

(on Form AO-12 reports) unless prompted to do so by

litigation.

The district court agreed with Hernandez “that there are

flaws in the [Southern] District’s jury selection procedures”

and acknowledged that “improvements could be made.”

Indeed, the court recommended that the Southern District

6 UNITED STATES V. HERNANDEZ-ESTRADA

take steps to remedy flaws in its jury selection procedures.1

However, the court ultimately concluded that those flaws did

not constitute constitutional violations or substantial

violations of the Jury Selection Act. The court denied

Hernandez’s motion to dismiss, and he was convicted as

charged.

A three-judge panel of our court affirmed the conviction.

United States v. Hernandez-Estrada, 704 F.3d 1015, 1019

(9th Cir. 2012). Chief Judge Kozinski, joined by Judge

Watford, filed a concurring opinion urging us to reconsider en

banc our exclusive reliance on the absolute disparity test in

jury selection pool cases as enunciated in Rodriguez-Lara.

Id. at 1025-26 (Kozinski, C.J., concurring). Upon the

majority vote of the active, non-recused judges of the court,

we agreed to rehear this case en banc. United States v.

Hernandez-Estrada, 729 F.3d 1224 (9th Cir. 2013).

In his appeal, Hernandez challenges only the district

court’s denial of his motion to dismiss. We review

“independently and non-deferentially a challenge to the

1

In response to the district court’s order and the three-judge panel

decision in this case, the Southern District issued an order, General Order

No. 626-A, which made significant changes to its jury selection

procedures. General Order 626-A requires the regular completion of

Form AO-12 reports, directs any juror questionnaires that raise questions

about a prospective juror’s English-language skills to be submitted to the

“Jury Judge,” and dictates that an insert be included with each juror

questionnaire that explains the importance of questions regarding race and

ethnicity and includes the correct, modern version of the race and ethnicity

questions. While these changes are laudable, General Order 626-A does

not render Hernandez’s claims moot because he seeks to vacate his

conviction based on the jury selection procedures in place at the time of

his criminal proceedings. We need not and do not decide whether the

corrected procedures would withstand a challenge.

UNITED STATES V. HERNANDEZ-ESTRADA 7

composition of grand and petit juries” under both the

Constitution and the Jury Selection Act. United States v.

Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

II

Hernandez argues that the Southern District’s exclusive

use of registered voter rolls as its juror source list results in

underrepresentation of African American and Hispanic

citizens in the jury pool and, as a result, violates the fair

cross-section requirements of the Jury Selection Act and the

Sixth Amendment. Because the same analysis determines

whether the jury selection procedures meet the fair cross-

section requirement under either the Jury Selection Act or the

Sixth Amendment, we consider those two claims together.

United States v. Miller, 771 F.2d 1219, 1227–28 (9th Cir.

1985).

A

Under the Jury Selection Act and the Sixth Amendment,

litigants in federal courts entitled to trial by jury have the

right to “juries selected at random from a fair cross section of

the community.” 28 U.S.C. § 1861; Miller, 771 F.2d at

1227–28. Jurors must be selected from either “voter

registration lists or the lists of actual voters of the political

subdivisions within the district or division.” Id. § 1863(b)(2).

However, a district’s jury selection plan must “prescribe

some other source or sources of names in addition to voter

lists where necessary to” meet the fair cross-section

requirement, guarantee that all citizens have the opportunity

to be considered for jury service, and ensure no citizen is

excluded from jury service due to race, color, religion, sex,

8 UNITED STATES V. HERNANDEZ-ESTRADA

national origin, or economic status. Id. §§ 1861, 1862,

1863(b)(2).

The Supreme Court in Duren v. Missouri “established a

three-part test for determining whether a jury selection

process passes constitutional muster” under the fair cross-

section requirement:

“In order to establish a prima facie violation

of the fair-cross-section requirement, the

defendant must show (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.”

Miller, 771 F.2d at 1228 (quoting Duren v. Missouri,

439 U.S. 357, 364 (1979)). “Once the defendant has

established a prima facie case, the burden shifts to the

government to show that ‘a significant state interest be

manifestly and primarily advanced by those aspects of the

jury-selection process . . . that result in the disproportionate

exclusion of a distinctive group.’” Rodriguez-Lara, 421 F.3d

at 940 (quoting Duren, 439 U.S. at 367–68).

Hernandez satisfied the first Duren requirement because

African Americans and Hispanics are distinctive groups in the

community. United States v. Cannady, 54 F.3d 544, 547 (9th

Cir. 1995). The second prong “requires proof, typically

UNITED STATES V. HERNANDEZ-ESTRADA 9

statistical data, that the jury pool does not adequately

represent the distinctive group in relation to the number of

such persons in the community.” United States v. Esquivel,

88 F.3d 722, 726 (9th Cir. 1996).

Before the district court, Hernandez produced evidence

based on Fisher’s Exact test showing that African Americans

and Hispanics were underrepresented in the Southern District

jury pool. Bound by Rodriguez-Lara, however, the district

court applied the absolute disparity test and found that, in

2009, the absolute disparity on the qualified jury wheel for

Hispanics in the Southern District was -2.07% (i.e., Hispanics

were overrepresented by 2.07%) and for African Americans

was 1.71% (i.e., African Americans were underrepresented

by 1.71%). Because these percentages were far below the

7.7% threshold recognized in Rodriguez-Lara, the district

court dismissed Hernandez’s fair cross-section claim.

In his petition for rehearing en banc, Hernandez

challenges our use of the absolute disparity test, arguing that

the method unfairly favors large groups, makes it impossible

for small groups to successfully assert a constitutional or Jury

Selection Act violation, and has been criticized or rejected by

other courts. Hernandez urges us to abandon the absolute

disparity test and instead to adopt another method (or

methods), such as the comparative disparity or standard

deviation approaches.

B

As an initial matter, the government argues that

Hernandez has waived his challenge to the absolute disparity

test by not specifically raising it before the three-judge panel.

Of course, we are not required to address an issue first raised

10 UNITED STATES V. HERNANDEZ-ESTRADA

in a petition for rehearing, and generally decline to do so. N.

Mariana Islands v. Lizama, 27 F.3d 444, 448 (9th Cir. 1994).

However, we have the authority and discretion to decide

questions first raised in a petition for rehearing en banc. See

Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 n.8 (9th Cir.

2001) (en banc) (“[F]ailure to raise an issue before an original

appellate panel does not preclude an en banc panel’s

jurisdiction over the issue.”). In fact, we have done so at the

government’s request. See Coe v. Thurman, 922 F.2d 528

(9th Cir. 1990), supplemental op., 922 F.2d at 533 & n.1 (9th

Cir. 1991) (per curiam) (exercising discretion in considering

Teague habeas issue first raised by the government in its

petition for rehearing). And we have, on occasion, raised and

addressed issues of circuit-wide importance ourselves en

banc. See Jeffries v. Wood, 114 F.3d 1484, 1493–99 (9th Cir.

1997) (en banc) (raising and deciding the retroactive effect of

a statute that became law after petitions for rehearing en banc

were filed), overruled in part on other grounds by Gonzalez

v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).

In addition, we have entertained issues en banc that were not

preserved in the district court when, as in this case, a “‘“ solid

wall of Circuit authority” would have rendered an objection

futile.’” Costa v. Desert Palace, Inc., 299 F.3d 838, 864 (9th

Cir. 2002) (en banc) (quoting Knapp v. Ernst & Whinney,

90 F.3d 1431, 1438–39 (9th Cir. 1996) (quoting Robinson v.

Heilman, 563 F.2d 1304, 1307 (9th Cir. 1977) (per curiam))).

The Supreme Court has also held that appellate courts are

not obligated to treat issues raised for the first time on appeal

as absolutely waived. Granberry v. Greer, 481 U.S. 129,

133-35 (1987). And the Supreme Court has not deemed an

issue waived when it was first raised in a petition for

rehearing en banc before a circuit court. See United States v.

Jimenez Recio, 537 U.S. 270, 273–77 (2003) (overruling a

UNITED STATES V. HERNANDEZ-ESTRADA 11

line of Ninth Circuit cases despite the fact that the

government first challenged the cases only in its petition for

rehearing en banc).

Therefore, contrary to the government’s argument, a party

does not necessarily forfeit an issue by first raising it in a

petition for rehearing en banc. Rather, it is a matter directed

to the exercise of our discretion. In this case, the defendant

tendered statistical evidence to the district court in support of

his claim that his jury panel did not reflect a fair cross-section

of the community. The district court rejected the evidence

because it was bound by circuit law to use a different

methodology. The three-judge panel lacked the authority to

alter circuit law without an intervening Supreme Court or en

banc decision that was clearly irreconcilable with our circuit

precedent. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc). Therefore, it would have been futile for the

defendant to urge the three-judge panel to overrule binding

circuit precedent. However, Chief Judge Kozinski properly

and forcefully raised the issue in his panel concurrence, and

the defendant directly presented the question in his petition

for rehearing en banc.

Given the significance of the questions raised by Chief

Judge Kozinski in his panel concurrence and presented by the

petition for rehearing en banc, and the potential impact on all

districts in our circuit, we elect in this instance to exercise our

discretion to address the issue en banc.

C

Courts have employed a number of analytical methods

when faced with jury panel fair cross-section cases, including

12 UNITED STATES V. HERNANDEZ-ESTRADA

the absolute disparity test, the absolute impact test, the

comparative disparity test, and standard deviation analysis.

The absolute disparity test, which is the test that we have

employed exclusively, examines “the difference between the

percentage of the distinctive group in the community and the

percentage of that group in the jury pool.” Rodriguez-Lara,

421 F.3d at 943. In other words, if a specific group makes up

10% of the population and 5% of the qualified jury wheel

(i.e., the list of prospective jurors who have been randomly

pulled from the juror source list, have been mailed juror

questionnaires, have returned those questionnaires, and have

been deemed qualified based on their response to those

questionnaires), the absolute disparity is 5%. See id. at

950–51 app. (conducting the absolute disparity analysis by

comparing the percentage of jury-eligible Hispanics in the

geographic region with the percentage of Hispanics in the

qualified jury wheel).

In determining the percentage of a distinctive group in the

qualified jury wheel, the absolute disparity analysis excludes

those jurors who did not identify their race or ethnicity on

their jury questionnaire. Id. at 944 n.11. Furthermore, in

analyzing the distinctive group’s representation in the district

or region as a whole, a court “must rely on the statistical data

that best approximates the percentage of jury-eligible

[members of the distinctive group in question] in the district.”

United States v. Torres-Hernandez, 447 F.3d 699, 704 (9th

Cir. 2006). Although no bright-line rule exists as to what

level of absolute disparity constitutes a constitutional or Jury

Selection Act violation, we “have declined to find

underrepresentation of a distinctive group where the absolute

disparity was 7.7% or lower.” Rodriguez-Lara, 421 F.3d at

943–44.

UNITED STATES V. HERNANDEZ-ESTRADA 13

We initially endorsed the absolute disparity method in

United States v. Potter, reasoning that a more comparative

statistical analysis could “distort the actual effect[s] of [a]

deviation” between a group’s representation in the population

at large and in the jury pool. United States v. Potter,

552 F.2d 901, 906 (9th Cir. 1977). We determined that the

absolute disparity method was the better and more accurate

course for assessing minority representation on jury pools.

Id. In later cases, we held that the absolute disparity method

was the sole mode of analysis for courts in the Ninth Circuit.

See, e.g., Sanchez-Lopez, 879 F.2d at 547 (“In determining

the underrepresentation of a particular group in jury venires,

we have consistently favored an absolute disparity analysis

and have rejected a comparative disparity analysis.”).

Nevertheless, although we continued to employ absolute

disparity as our circuit’s sole test, we have repeatedly

criticized and questioned it. See, e.g., Serena v. Mock,

547 F.3d 1051, 1054 n.2 (9th Cir. 2008) (order) (“We

question, however, whether the approach compelled by our

case law [i.e., the absolute disparity approach] is

mathematically sound.”). Indeed, we have specifically

highlighted the fact that if a minority group makes up less

than 7.7% of the population in the jurisdiction in question,

that group could never be underrepresented in the jury pool,

even if none of its members wound up on the qualified jury

wheel. Rodriguez-Lara, 421 F.3d at 944 n.10 (“The

necessary implication of this margin is that if a distinctive

group makes up 7.7% or less of the community, then the fair

cross-section requirement offers no redress even if that group

is entirely shut out of the jury pool.”). For example, African

Americans constituted 5.2% of the population of the Southern

District in 2009. Therefore, under the absolute disparity test,

there could be no successful jury challenge in the Southern

14 UNITED STATES V. HERNANDEZ-ESTRADA

District for African Americans. As of the last census, the

District of Montana did not have any minority group that

exceeded 7.7% of its population.2 Thus, under Rodriguez-

Lara, there could never be a viable fair cross-section

challenge in the District of Montana. Although the Supreme

Court has refused to prescribe any specific type of analysis or

prohibit the use of the absolute disparity test, it too has noted

that the absolute disparity test “can be misleading” when the

distinctive group in question makes up only a small

percentage of the population. Berghuis, 559 U.S. at 329.

The absolute disparity test also suffers from distortion

based on population size. For example, if we assume a group

makes up 90% of the population, but 80% of the jury pool,

there would be a 10% absolute disparity. Under those

circumstances, it is doubtful that any court would consider the

group underrepresented. However, if a population group

constituted 10% of the population, but had no representation

in a jury pool, that result might give rise to fair cross-section

concerns. Yet, the absolute disparity—10%—would be

identical under both scenarios.

The absolute disparity test has been used by many courts

because it is easy to administer. Sara Sun Beale, Integrating

Statistical Evidence and Legal Theory to Challenge the

Selection of Grand and Petit Jurors, 46 Law & Contemp.

Probs. 269, 273 (1983). However, no court has been able to

articulate or defend it on any sound statistical basis. And

there is no statistical basis from which one could derive the

7.7% threshold that we articulated in Rodriguez-Lara. At

best, the method provides a very generalized gauge of a jury

2

Montana State & Country Quick Facts, U.S. Census Bureau (Jan. 6,

2014, 5:25 PM), http://quickfacts.census.gov/qfd/states/30000.html.

UNITED STATES V. HERNANDEZ-ESTRADA 15

pool when considering representation of groups that form a

substantial portion of the community. It also has some

comparative value because many courts have used it, so there

is some predictive history.3

Closely related to the absolute disparity test is the

absolute impact test. Under this approach, the initial

calculation is the same as for the absolute disparity test.

However, the resulting number is then multiplied by the

number of persons on the particular panel. See, e.g., United

States v. Test, 550 F.2d 577, 588 n.11 (10th Cir. 1976). So,

for example, if a minority group constitutes 10% of the

population and there is a jury pool of 20, one would expect 2

jurors to be from the affected population group. Applying the

absolute impact test, if there was a 10% absolute disparity

between the proportion of that minority group in the

population and the proportion in the jury pool, one would

expect the absolute impact on the 20-person jury pool to be

2 jurors. If only 1 juror from the group were represented, a

court might not conclude that there was a significant

difference. The advantage of the test is that it applies the

disparity analysis to the actual jury pool to determine the

impact. However, because it is based on the absolute

disparity test, the absolute impact test bears many of the same

flaws.

3

However, even this marginal advantage can be illusory, if prior

decisions calculated the absolute disparity using a different method. For

example, the 7.7% threshold, which was first established in United States

v. Suttiswad, 696 F.2d 645, 648 (9th Cir. 1982), was not calculated using

our commonly accepted definition of absolute disparity. Instead, the

Suttiswad court derived the figure by comparing the percentage of

Hispanics who actually served on grand juries to the percentage of

Hispanics in the community, as reflected in census data. Id.

16 UNITED STATES V. HERNANDEZ-ESTRADA

Recognizing the problems in the absolute disparity and

absolute impact tests, some courts have employed the

comparative disparity test. Comparative disparity is

calculated “by taking the absolute disparity percentage and

dividing it by the percentage of the distinctive group in the

total population.” Rodriguez-Lara, 421 F.3d at 943 n.10. So,

using our prior example, the comparative disparity of the 90%

population group in an 80% jury pool would be 11%. The

comparative disparity of the 10% population group with no

representation in the jury pool would be 100%. Thus, the

comparative disparity test illustrates, in a general way, the

comparative differences in a manner that takes population

size into consideration. See Hirst v. Gertzen, 676 F.2d 1252,

1258 n.14 (9th Cir. 1982) (noting that a comparative disparity

method is “more informative” than the absolute disparity

method when the cognizable group “represents a small

percentage of the population”). However, one problem with

the comparative disparity test is that it can overstate the

underrepresentation of a group that has a small population

percentage. Let’s assume, for example, that a group

constitutes .1% of the population, with no representation in

the jury pool. The comparative disparity of that group would

be 100%. Few would argue that the absence of a group

representing just 0.1% of the population violates the fair

cross-section requirement, yet comparative disparity analysis

would suggest otherwise. In addition, “when the group is

very large the comparative method tends to validate

deviations that are unlikely to have been produced by chance

despite the fact that the disparity alters the representation of

the average jury substantially.” Beale, supra, at 274. As with

the absolute disparity test, no court has been able to articulate

or defend the use of a comparative disparity test on any sound

statistical basis.

UNITED STATES V. HERNANDEZ-ESTRADA 17

Some courts have used an analysis of standard deviation,

which is the “measure of the predicted fluctuations from the

expected value.” Castaneda v. Partida, 430 U.S. 482, 496

n.17 (1977). Standard deviation has the advantage of being

firmly grounded in statistical theory, and generally applicable

to both large and small population groups. However, some

courts have questioned whether a pure standard deviation

analysis is appropriate given that the characteristics of the

general population differ from a pool of qualified jurors. See,

e.g., United States v. Rioux, 97 F.3d 648, 655 (2d Cir. 1996)

(“It is illogical to apply a theory based on random selection

when assessing the constitutionality of a qualified wheel. By

definition, the qualified wheel is not the product of random

selection; it entails reasoned disqualifications based on

numerous factors. It is irrational to gauge the qualified

wheel—an inherently non-random sample—by its potential

for randomness.”).4

An additional problem with exclusive reliance on

standard deviation analysis is, as one commentator has noted,

that “[t]he probability that the composition of a jury wheel

arose by random selection from the community is not directly

related to the defendant’s chances of drawing a jury of a

certain composition.” Peter A. Detre, A Proposal for

Measuring Underrepresentation in the Composition of the

Jury Wheel, 103 Yale L.J. 1913, 1928 (1994). “[B]y

imagining larger and larger jury wheels, the probability of

any degree of underrepresentation arising by chance can be

made arbitrarily small.” Id.

4

Of course, this criticism is not unique to standard deviation analysis;

it could be directed at most methods used to evaluate whether the jury

pool represents a fair cross-section of the community.

18 UNITED STATES V. HERNANDEZ-ESTRADA

Another alternative is the disparity-of-risk test. This test

measures “the likelihood that the difference between a

group’s representation in the jury pool and its population in

the community will result in a significant risk that the jury

will not fairly represent the group.” Commonwealth v.

Arriaga, 781 N.E.2d 1253, 1265 (Mass. 2003). The

calculation is performed by “comparing the chance that a

defendant's jury (before or without voir dire) will include

members of a distinct group if that group’s representation in

the jury pool is consistent with its population in the

community with the chance that a defendant’s jury will

include members of the same group given the particular

underrepresentation alleged.” People v. Bryant, 822 N.W.2d

124, 143 (Mich.) (footnote omitted), cert. denied, 133 S. Ct.

664 (2012).

In the case at hand, the defendant tendered experts who

employed Fisher’s Exact test. Fisher’s Exact test is used to

calculate the probability that the number of individuals of a

particular race-selected or gender-selected classification

would be the same as the number actually selected, if the

selection were independent of race or gender. It examines the

difference in proportions of the subgroup in the population

and the proportion appearing in the jury pool, and calculates

the amount of discrepancy between the observed data and

what would be expected by chance, and then fixes a

probability to that result.5 It is designed to examine statistical

significance in small sample sizes. Jones v. Pepsi–Cola

5

Using Fisher’s Exact test, experts concluded that “there is absolutely

no evidence that the observed proportions of Hispanics in either the

available or qualified wheels is attributable to the vagaries of sampling

from a population.”

UNITED STATES V. HERNANDEZ-ESTRADA 19

Metro. Bottling Co., 871 F. Supp. 305, 311 (E.D. Mich.

1994).

A survey of our sister circuits demonstrates the

inconsistency of approaches. Some of our sister circuits still

use the absolute disparity method exclusively. See, e.g.,

United States v. Royal, 174 F.3d 1, 10 (1st Cir. 1999) (“We

accordingly employ the absolute disparity test . . . .”); Rioux,

97 F.3d at 655–56 (“Although we have admittedly waffled on

this issue in the past, the law in this Circuit strongly suggests

the absolute disparity/absolute numbers approach is

appropriate in this case.”); United States v. Pepe, 747 F.2d

632, 649 n.18 (11th Cir. 1984) (“We consider deviation from

proportional representation in absolute rather than

comparative terms . . . .”). Others, however, have adopted a

more flexible approach that uses multiple modes of analysis.

See, e.g., United States v. Orange, 447 F.3d 792, 798 (10th

Cir. 2006) (“[W]e have consistently relied upon two

measurements: absolute and comparative disparity.”); Mosley

v. Dretke, 370 F.3d 467, 479 n.5 (5th Cir. 2004) (noting that

the circuit uses absolute disparity alone when the group is a

large part of the overall population but leaving “open the

possibility that if the distinctive group at issue makes up less

than 10% of the population, comparative disparity may be

used”). The Third Circuit uses a multi-modal analysis that

considers “evidence of absolute disparity, comparative

disparity, and deviation from expected random selection.”

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

banc).

After surveying the case law and alternative methods of

analysis, and bearing in mind our own past criticism of our

exclusive reliance on the absolute disparity test, we conclude

that it is appropriate to abandon the absolute disparity

20 UNITED STATES V. HERNANDEZ-ESTRADA

approach. Accordingly, we overrule the requirement, as set

forth in Rodriguez-Lara and its predecessor cases, that the

absolute disparity test be the exclusive analytical measure

employed in fair cross-section challenges.

However, we do not prescribe an alternative exclusive

analysis to be applied in every case. The Supreme Court has

declined to specify “the method or test courts must use to

measure the representation of distinctive groups in jury

pools.” Berghuis, 559 U.S. at 329. We follow its lead and

also decline to confine district courts to a particular analytical

method. As our discussion has illustrated, the appropriate test

or tests to employ will largely depend on the particular

circumstances of each case. Instead, we hold that courts may

use one or more of a variety of statistical methods to respond

to the evidence presented. Allowing courts and defendants to

use a more robust set of analytical tools will ensure more

accurate, and narrowly tailored, responses to individual

Duren challenges, which we can then assess on a fully

developed record specific to the circumstances presented.6

In addition, the challenging party must establish not only

statistical significance, but also legal significance. The

results of any statistical method must be examined in the

context of the likely, actual, “real life” impact on the jury

pool at issue. As we have observed in earlier cases, “we look

to people not percentages.” United States v. Kleifgen,

6

And, despite our criticism and concerns about the limitations of the

absolute disparity test, we do not preclude its use by district courts.

Bearing in mind its flaws, district courts may still find the test useful in

formulating a generalized analysis of the jury pool, particularly given the

extensive discussion and application to specific circumstances it has

received in case law.

UNITED STATES V. HERNANDEZ-ESTRADA 21

557 F.2d 1293, 1297 (9th Cir. 1977).7 In other words, if a

statistical analysis shows underrepresentation, but the

underrepresentation does not substantially affect the

representation of the group in the actual jury pool, then the

underrepresentation does not have legal significance in the

fair cross-section context.

In sum, the defendant must establish a prima facie case

that the jury pool does not reflect a fair cross-section of the

community. We overrule our prior precedent which required

courts to analyze challenges exclusively by the use of the

absolute disparity test. Rather, in determining whether the

defendant has satisfied the burden of establishing a prima

facie case, courts must consider the evidence proffered by the

defendant, including expert testimony, and employ the most

appropriate method, or methods, applicable to the specific

challenge in the context of the particular jury pool at issue.

D

A revision of our precedent would normally warrant

remanding the case to the district court to consider the

question anew. However, we need not do so here because,

even assuming that Hernandez has met the second Duren

requirement, he has not satisfied the third. The third Duren

prong requires proof that the underrepresentation in question

“‘is due to systematic exclusion of the group in the jury-

selection process.’” Miller, 771 F.2d at 1228 (quoting Duren,

439 U.S. at 364). To be systematic, underrepresentation must

be “‘due to the system by which juries were selected.’”

7

We have used this phrase in connection with the absolute disparity and

absolute impact tests. Potter, 552 F.2d at 905–06. But the concept is not

tethered to the application of those tests.

22 UNITED STATES V. HERNANDEZ-ESTRADA

Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004)

(quoting Duren, 439 U.S. at 367). In Duren, for example, the

underrepresentation was systematic because women, but not

men, could opt out of jury service by so indicating on the

juror questionnaire. Id. (discussing Duren). Moreover, if

they did not return the questionnaire, women, but not men,

were presumed to have opted out. Id. On the contrary, in

Randolph, while the appellant showed that Hispanics were

underrepresented in the venire, we rejected his cursory

argument that “Hispanics return questionnaires at a lower rate

than the general population” and concluded that Randolph

had failed to establish a prima facie case under Duren

because he had “not shown any relationship between the

disproportionately low percentage of Hispanics in the venire

and the juror-selection system the County uses.” Id.

Here, while Hernandez has introduced significant

evidence regarding underrepresentation of African Americans

and Hispanics in the qualified juror pool, he has failed to

provide evidence that this underrepresentation is due to the

system employed by the Southern District, and has therefore

failed to establish a prima facie case under Duren. Although

he has highlighted several procedures of the Southern District

that violate the Jury Selection Act, as we discuss below, those

violations are not substantial, and Hernandez has not tendered

sufficient proof that the violations constitute a systemic cause

of any underrepresentation in the Southern District’s venire.

Most importantly, like the defendant in Rodriguez-Lara,

Hernandez has not provided sufficient evidence “linking sole

reliance on voter registration lists for jury selection to current

systematic exclusion of [distinctive groups] in the [Southern

District].” Rodriguez-Lara, 421 F.3d at 945. In other words,

Hernandez “has not shown that the alternative system he

proposes—[supplementing the juror source list]—would

UNITED STATES V. HERNANDEZ-ESTRADA 23

increase [minority group] representation.” Randolph,

380 F.3d at 1141.8

Thus, we affirm the district court’s denial of Hernandez’s

Jury Selection Act and Sixth Amendment fair cross-section

claims because he has failed to meet his burden under the

third prong of Duren. Because he did not establish a prima

facie case under Duren, the burden did not shift to the

government to justify the infringement, and our inquiry is at

an end.

III

Hernandez also alleges that underrepresentation of

African Americans and Hispanics in the Southern District’s

venire has violated his equal protection rights under the Fifth

Amendment. The Supreme Court established a framework

for analyzing Fifth Amendment jury composition challenges

in Castaneda v. Partida. To establish a prima facie equal

protection case under Castaneda, a party must: “(1) establish

that the group, of which the appellant is a member, is ‘one

that is a recognizable, distinct class, singled out for different

treatment under the laws, as written or as applied;’ (2) prove

the degree of underrepresentation ‘by comparing the

proportion of the group in the total population to the

proportion called to serve as grand jurors, over a significant

8

We recognize, however, that Hernandez has presented more evidence

than the petitioner in Randolph, who presented “no evidence” to support

his conclusory suggestions. Id. at 1141. Moreover, we recognize the high

hurdle Hernandez faces, given the logistical and financial difficulties of

providing sufficient empirical support for his allegations. Nevertheless,

we hold that in this case, Hernandez has not met the requirements of

Duren’s third prong.

24 UNITED STATES V. HERNANDEZ-ESTRADA

period of time;’ and (3) discriminatory intent.” Esquivel,

88 F.3d at 725 (quoting Castaneda, 430 U.S. at 494).

As with the fair cross-section cases, courts have employed

differing statistical methods for assessing underrepresentation

in the equal protection context. Indeed, some circuits have

employed a different test for equal protection challenges than

for fair cross-section challenges. Compare Alston v. Manson,

791 F.2d 255, 257-58 (2d Cir. 1986) (applying statistical

decision theory to equal protection jury pool challenges), with

Rioux, 97 F.3d at 655–56 (using absolute disparity/absolute

numbers for a fair cross-section challenge). Because the

essential question of underrepresentation is the same in both

equal protection and fair cross-section challenges, there is no

reason to require or apply different measures. Consistent

with our holding as to cross-section challenges, we decline to

impose a specific form of analysis on district courts. Rather,

district courts should employ the method or methods most

appropriate for the specific challenge.

But statistical proof of underepresentation does not end

the inquiry in equal protection cases. The challenging party

must also establish discriminatory intent, which we have held

is “the most crucial factor in an equal protection case.”

Esquivel, 88 F.3d at 727. In this case, assuming, without

deciding, that Hernandez has shown underrepresentation,

there is no evidence of discriminatory intent and, as a

consequence, Hernandez cannot make out a prima facie case.

IV

We turn next to Hernandez’s four remaining Jury

Selection Act claims. The Jury Selection Act was enacted “in

response to numerous complaints of racial discrimination in

UNITED STATES V. HERNANDEZ-ESTRADA 25

the selection of potential jurors.” Id. at 725. The act

prescribes a variety of procedures to guide districts in

compiling qualified jury pools. See 28 U.S.C. §§ 1861–1869.

Nevertheless, not just any violation of the Jury Selection Act

is actionable. Instead, the violation must constitute a

“‘substantial failure to comply’” with the Jury Selection Act.

United States v. Nelson, 718 F.2d 315, 318 (9th Cir. 1983)

(quoting 28 U.S.C. § 1867(a)). Technical violations of the

Jury Selection Act are “insubstantial where they do not

frustrate the Act’s goals.” Id. (citing United States v.

Goodlow, 597 F.2d 159, 162 (9th Cir. 1979)); see also United

States v. Erickson, 75 F.3d 470, 477 (9th Cir. 1996). The two

underlying goals of the Act are the random selection of

prospective jurors “from voter lists” and exclusions of

prospective jurors “on the basis of objective criteria only.”

Nelson, 718 F.2d at 318.

A

Hernandez argues that the Southern District violated the

Jury Selection Act by using outdated text in the English

proficiency question on its prospective juror questionnaire

and, as a result, wrongly excluding qualified prospective

jurors. Hernandez notes, and the government concedes, that

the Southern District’s jury questionnaire contains outdated

text instead of the current and less stringent text mandated by

the Jury Selection Act.9 Hernandez concludes that the

9

Question 4 asked: “Do you read, write, speak, and understand the

English language?” The parties agree that the relevant standard, set forth

at 28 U.S.C. § 1865(b)(2), (3), requires only the disqualification of any

otherwise-eligible person who “is unable to read, write, and understand

the English language with a degree of proficiency sufficient to fill out

satisfactorily the juror qualification form” or “is unable to speak the

English language.”

26 UNITED STATES V. HERNANDEZ-ESTRADA

Southern District violated the Jury Selection Act by wrongly

excluding all prospective jurors who answered “no” to the

outdated English proficiency questionnaire, some of whom

might have answered the question differently if it had

reflected the current wording of the Jury Selection Act.

Despite the government’s concession that the

questionnaire is outdated, Hernandez still must show that this

violation is substantial in that it contravenes the twin policies

of the Jury Selection Act. The Fifth Circuit in United States

v. Bearden provides helpful guidance for determining

whether the wrongful exclusion of prospective jurors

constitutes a substantial violation of the Jury Selection Act.

For wrongful exclusions, determining

whether there has been a substantial violation

[of the Jury Selection Act] has both

quantitative and qualitative aspects.

Quantitatively, a substantial violation

generally will not be found if the number of

errors is small. Qualitatively, the inquiry is

whether there has been a frustration of the

[Jury Selection] Act’s underlying principle of

exclusions on the basis of objective criteria

only.

United States v. Bearden, 659 F.2d 590, 607 (5th Cir. 1981)

(citation omitted).

The outdated text of Question 4 does not violate the

qualitative aspect of the Jury Selection Act, because no

subjective criteria seeped into the district’s qualification

determinations. Whether the wording was correct or not,

prospective jurors who answered “no” were uniformly

UNITED STATES V. HERNANDEZ-ESTRADA 27

disqualified—an objective determination premised on each

respondent’s professed English-language abilities and not on

subjective considerations.10

As for the quantitative aspect of the Jury Selection Act,

Hernandez must show a significant number of wrongful

exclusions to render the Jury Selection Act violation

substantial. Here, Hernandez has failed to do so. Hernandez

focuses in particular on the fact that 1,420 Hispanic citizens

were disqualified “solely because of their answer to the

outdated English proficiency question.” Indeed, he notes that

25.2% of Hispanics disqualified for any reason were

disqualified solely because of their response to the English

proficiency question and that 69.7% of all those disqualified

solely for answering “no” to Question 4 were Hispanics.

These numbers should give the Southern District pause, but

they do not constitute a substantial violation.

Even in the unlikely event that all 1,420 of those Hispanic

citizens would have answered Question 4 in the affirmative

had it been worded differently, and were therefore wrongfully

excluded, those 1,420 only constitute 2.05% of the 69,375

who returned the jury questionnaires and 3.49% of the 40,743

on the qualified jury wheel. These percentages are similar to,

if a bit more than, the 1.2% and 1.6% respectively that the

Fifth Circuit found to be insubstantial in Bearden.11 659 F.2d

10

Furthermore, Hernandez has provided insufficient evidence that the

criteria employed here carry “discriminatory potential or effect” such that

their objective nature would not save them. Id. at 608.

11

We do not mean to imply that the percentages listed in Bearden or in

the cases Bearden cites, id. at 607, establish a bright-line rule for how

large an exclusion must be to constitute, quantitatively, a substantial

violation. Instead, we simply hold that, in this case, Hernandez has failed

28 UNITED STATES V. HERNANDEZ-ESTRADA

at 607. Accordingly, the outdated text of Question 4 and the

related exclusions do not constitute a substantial violation of

the Jury Selection Act.

B

Hernandez also contends that the Southern District

contravened the Jury Selection Act when unsupervised court

clerks disqualified prospective jurors who answered in the

affirmative regarding their English proficiency but expressed

doubts about their English-comprehension abilities elsewhere

on the form. Hernandez focuses in particular on the

exclusion of twelve Hispanic prospective jurors who

answered “yes” to Question 4 of the Southern District’s jury

questionnaire but were excluded because they expressed

doubts about their linguistic abilities in the “Remarks”

section of the form.

The pertinent statute, 28 U.S.C. § 1865(a), requires the

jury selection process—specifically the selection of qualified

prospective jurors based on responses to the jury

questionnaire—to be conducted “under [the] supervision of

the court.” While the Southern District’s local rules authorize

clerks to make qualification decisions under court

supervision, it mandates that “[q]uestionable requests for

being excused or other status determinations must be directed

to the court.” S.D. Cal. Civ. R. 83.10(c)(5). Here, the Jury

Selection Act and the relevant rules required either a judicial

officer to make the decision as to the qualifications of these

twelve Hispanic jurors or, at a minimum, closer scrutiny by

judicial officers.

to show that Question 4 of the juror questionnaire substantially violates

the Jury Selection Act.

UNITED STATES V. HERNANDEZ-ESTRADA 29

Nevertheless, the fact that clerks alone made these

determinations does not make this Jury Selection Act

violation substantial. See United States v. Evans, 526 F.2d

701, 706 (5th Cir. 1976) (“While some technical errors were

made, the fact that clerks, rather than a judge, made these

determinations does not necessitate reversal.”). Furthermore,

Hernandez provides evidence of the exclusion of only a small

number of prospective jurors—for example only twelve

Hispanic prospective jurors—by unsupervised clerks, as

compared to the 40,743 prospective jurors in the qualified

jury wheel. See Bearden, 659 F.2d at 606–07 (concluding

that the erroneous dismissal of 495 prospective jurors was

“insignificant in relation to the large number of prospective

jurors handled by the clerk’s office”). Finally, the violation

does not contravene the policies underlying the Jury Selection

Act because it does not intrude on the random selection of

jurors from voter lists at earlier stages in the jury selection

process, nor does it introduce subjective criteria into the

selection process. See Goodlow, 597 F.2d at 161–62 (finding

no substantial violation of the Jury Selection Act where men

“who take care of young children” were automatically

excluded from jury service). In fact, the prospective jurors

appear to have been excluded objectively and uniformly

based solely on a professed difficulty comprehending the

English language. Thus, we affirm the district court’s denial

of Hernandez’s motion to dismiss with respect to the

unsupervised dismissal of certain prospective jurors by court

clerks.

C

Hernandez also challenges the Southern District’s failure

to return jury questionnaires to prospective jurors who

neglected to answer the questionnaire’s race and ethnicity

30 UNITED STATES V. HERNANDEZ-ESTRADA

questions (“Question 10”). Title 28 U.S.C. § 1864(a) states

that in “any case in which it appears that there is an omission,

ambiguity, or error in a [filled-out jury questionnaire], the

clerk or jury commission shall return the form with

instructions to the person to make such additions or

corrections as may be necessary and to return the form to the

clerk or jury commission within ten days.” Nevertheless, the

Southern District has not returned questionnaires on which

prospective jurors have failed to complete the race or

ethnicity questions, due in part to guidance from the

Administrative Office that such omissions do not require

returning the questionnaires. In 2009, 18.17% of respondents

did not answer the race question and 35.85% did not respond

to the ethnicity question.

Even assuming that the Southern District should have sent

back each of these questionnaires, this violation does not

constitute a substantial violation of the Jury Selection Act

because it does not contravene the law’s twin policy goals.

Nelson, 718 F.2d at 318. First, the jurors selected from the

master jury wheel to receive jury questionnaires were still

randomly selected. Even if all of those who did not respond

to the race or ethnicity questions were white, thereby

reducing the percentage of minority distinctive groups in the

qualified jury wheel, Hernandez has not sufficiently

established a link between the failure to return the jury

questionnaires and any underrepresentation of various

distinctive groups in the 2009 qualified jury wheel. Second,

because no jurors were excluded due to their failure to

respond to the race and ethnicity questions, no subjective

criteria were introduced into the qualification process. As a

result, we affirm the district court as to the Southern District’s

failure to return jury questionnaires.

UNITED STATES V. HERNANDEZ-ESTRADA 31

D

Finally, Hernandez asserts that the Southern District

violated the Jury Selection Act by failing to keep up-to-date

jury representativeness statistics on regular Form AO-12

reports, unless prompted by litigation. Title 28 U.S.C.

§ 1863(a) requires each district court to “submit a report on

the jury selection process within its jurisdiction [i.e., the

Form AO-12 report] to the Administrative Office of the

United States Courts in such form and at such times as the

Judicial Conference of the United States may specify.” The

form’s instructions require district courts to complete a Form

AO-12 report at least each time the master jury wheel is

filled.

Hernandez is correct that the Southern District has failed

to complete its AO-12 reports on time. Indeed, the 1999,

2001, and 2003 reports were completed in 2004, and the 2005

and 2007 reports were finished in 2008. The timing of these

reports seems to coincide with jury pool litigation in the

Southern District, specifically, challenges in the Martinez-

Orosco and Garcia-Arellano cases. See Motion to Dismiss,

United States v. Martinez-Orosco, No. 3:03-cr02601-JAH

(S.D. Cal. Oct. 8, 2004), ECF No. 47; Motion to Dismiss,

United States v. Garcia-Arellano, No. 3:08-cr02876-BTM

(S.D. Cal. Nov. 7, 2008), ECF No. 21. Still, Hernandez had

access to all the relevant AO-12s he needed for his litigation,

and has not demonstrated how the late filing of AO-12 reports

amounts to a substantial violation of the Jury Selection Act

that contravenes the goals of the law. Thus, we affirm the

district court’s decision to deny Hernandez’s motion to

dismiss as to the late filing of AO-12 reports.

32 UNITED STATES V. HERNANDEZ-ESTRADA

V

Because Hernandez has failed to establish a prima facie

case under Duren, has not established discriminatory intent

in the jury selection process, and has not provided sufficient

evidence of substantial violations of the Jury Selection Act,

we affirm the district court’s denial of Hernandez’s motion to

dismiss on Fifth and Sixth Amendment and Jury Selection

Act grounds. However, we overrule our prior exclusive

reliance on the absolute disparity test in fair cross-section and

equal protection cases, and permit district courts to analyze

fair cross-section and equal protection cases using the most

appropriate methods applicable to the particular challenge.

AFFIRMED.

M. SMITH, Circuit Judge, with whom SILVERMAN and

BEA, Circuit Judges, join, concurring in the judgment:

The “absolute disparity” test, which we have employed

for nearly forty years, leaves no doubt that Hernandez-

Estrada’s fair cross section claims fail under Duren’s second

prong. See Duren v. Missouri, 439 U.S. 357, 364 (1979). For

this reason, I agree with the majority that we should affirm

the judgment of the district court. The majority, however,

declines to confine its opinion to answering the questions that

are necessary to the resolution of this appeal. Instead, it treats

this straight-forward case as a convenient Rocinante that it

can mount like a knight-errant to challenge the specter of

windmill giants on the distant horizon—be they real or

imagined. I decline to join the majority’s glorious quest.

UNITED STATES V. HERNANDEZ-ESTRADA 33

By overruling our circuit precedent requiring that district

courts exclusively apply the “absolute disparity” test to fair

cross section claims, the majority needlessly raises a host of

difficult questions for which there are no clear answers, and

it leaves trial courts with little guidance on how to fulfill their

responsibilities in such cases. The resulting legal vacuum will

likely trigger an avalanche of fair cross section claims that

have almost no chance of success under Duren, but which

will burden the courts for years without meaningfully

improving the administration of justice.

We apply a three-part test to determine whether a jury

selection process complies with the fair cross section

requirement. Id. To establish a prima facie fair cross section

claim, the defendant must show: (1) that the group alleged to

be excluded is a “distinctive” group in the community;

(2) that the representation of this group in jury pools 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. Id.

In assessing Duren’s second prong, we require statistical

data demonstrating that “the jury pool does not adequately

represent the distinctive group in relation to the number of

persons in the community.” United States v. Esquivel, 88 F.3d

722, 726 (9th Cir. 1996). Until today, we have repeatedly

held that courts in this circuit must use the “absolute

disparity” test to analyze this statistical data. See, e.g., United

States v. Rodriguez-Lara, 421 F.3d 932, 943–44 (9th Cir.

2005); United States v. Sanchez-Lopez, 879 F.2d 541, 547

(9th Cir. 1989); United States v. Potter, 552 F.2d 901, 905–06

(9th Cir. 1977). While the “absolute disparity” test is not

34 UNITED STATES V. HERNANDEZ-ESTRADA

flawless,1 we have explained that this specific mode of

analysis is particularly useful in assessing whether the fair

cross section requirement has been violated because the

analysis focuses on “people and not percentages.” Potter,

552 F.2d at 905. That is, the “absolute disparity” test looks at

the effect of a given deviation on the actual numerical

composition of grand juries, and assesses whether the absence

of such a deviation would affect jury composition in a way

that meaningfully affects a defendant’s Sixth Amendment

rights.2

1

See, e.g., Rodriguez-Lara, 421 F.3d at 943 n.10 (“The necessary

implication of [the rule] is that if a distinctive group makes up 7.7% or

less of the community, then the fair cross-section requirement offers no

redress even if that group is entirely shut out of the jury pool.” (emphasis

omitted)).

2

See Potter, 552 F.2d at 906. The fair cross section requirement is

grounded in a defendant’s Sixth Amendment right to a trial by an impartial

jury. See Taylor v. Louisiana, 419 U.S. 522, 526–30 (1975). Unlike

Batson challenges, which protect potential jurors’ equal protection rights,

see Batson v. Kentucky, 476 U.S. 79, 84 (1986), fair cross section claims

focus on whether a group’s disproportionate representation on a jury

wheel undermines the fairness of a defendant’s indictment or trial, Taylor,

419 U.S. at 526–30. The “absolute disparity” test is useful in conducting

this analysis, because, unlike other statistical methods, it looks at how

statistical disparities actually affect jury composition. Potter, 552 F.2d at

906. As a statistical matter, correcting an absolute disparity of less than

4.3% will, on average, result in the addition of less than one group

member on a grand jury of 23. This small effect is not “substantial,” and

cannot be said to affect the fairness of a defendant’s trial. Id.; see also

United States v. Armstrong, 621 F.2d 951, 956 (9th Cir. 1980). Applying

this rationale, we have accepted absolute disparities as high as 7.7%.

United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982). On average,

a 7.7% disparity will result in an under-representation of 1.76 group

members on a grand jury of 23. Id. This effect is also insubstantial. Id.

UNITED STATES V. HERNANDEZ-ESTRADA 35

Today the majority announces that it is abandoning “our

exclusive reliance on the absolute disparity test.” But in so

doing, the majority “decline[s] to confine district courts to a

particular analytical method.” Instead, the majority explains

that “the appropriate test or tests to employ will largely

depend on the particular circumstances of each case,” and it

encourages courts to use “one or more of a variety of

statistical methods to respond to the evidence presented.”

However, the majority also notes that, like the “absolute

disparity” test, each of these alternative statistical methods is

likewise flawed.

Hereafter, trial courts will be charged with making ad hoc

determinations regarding which statistical method, or

combination of statistical methods, should be used to assess

individual fair cross section claims. Yet, the majority

provides little more than abstractions to guide the trial courts.

While the majority discusses the benefits and disadvantages

of a number of statistical frameworks, it explicitly declines to

advise trial courts as to when and how these frameworks

should be employed. The majority even declines to illustrate

how the principles announced today would apply to the facts

of this case. In so doing, the majority leaves unclear what role

the “absolute disparity” test now plays, when alternative

statistical methods should be employed, and which

combination of statistical methods are appropriate under what

circumstances.

Even more troubling is that the majority’s injection of

these uncertainties into our jurisprudence is entirely

unnecessary to the disposition of this case. The majority

concludes that, regardless of any statistical disparities in the

jury pool from which Hernandez-Estrada’s grand jury was

selected, his fair cross section claims fail under Duren’s third

36 UNITED STATES V. HERNANDEZ-ESTRADA

prong, because he failed to provide evidence that any

underrepresentation was systematic in nature. In reaching this

conclusion, the majority seems to shift the focus of fair cross

section claims from Duren’s second prong to its third. But the

majority provides no guidance as to how systematic

underrepresentation can be demonstrated where, as here, the

source of the purported underrepresentation does not appear

on the face of a district’s jury questionnaire. See Duren,

439 U.S. at 366–67 (holding that underrepresentation was

systematic where the jury questionnaire permitted women,

but not men, to opt out of jury service).

Both the district court and our three-judge panel

concluded that, under the “absolute disparity” test,

Hernandez-Estrada’s fair cross section claims fail as a matter

of law. I would affirm on the same basis, and I would only

consider whether a change in our fair cross section

jurisprudence is warranted when the outcome of the case

requires such a determination.

I respectfully concur only with the judgment.

N.R. SMITH, Circuit Judge, concurring in the judgment:

A jury pool must be “reasonably representative” of the

distinctive groups in the community. Taylor v. Louisiana,

419 U.S. 522, 538 (1975). However, the U.S. Supreme Court

has not prescribed a particular statistical test for evaluating to

what degree a distinctive group’s underrepresentation in a

jury pool substantiates a fair cross-section claim. Berghuis v.

Smith, 559 U.S. 314, 329 (2010).

UNITED STATES V. HERNANDEZ-ESTRADA 37

I would affirm the district court’s decision, because

Hernandez-Estrada’s fair cross-section claims fail Duren’s

second prong1 under the tests used by any United States

Circuit Court of Appeals. In the Southern District of

California during the relevant period, African-Americans

constituted 5.2% of the jury-eligible population and were

underrepresented.2 United States v. Hernandez-Estrada,

704 F.3d 1015, 1020–21 (9th Cir. 2012). The 2009 jury wheel

data reflects (1) a 1.7% absolute disparity, (2) a 32.7%

comparative disparity, (3) an absolute impact of 0.39 fewer

African-American jurors on a 23-member grand jury, and

(4) 14 standard deviations. See id. at 1018, 1021.

This court has “declined to find underrepresentation of a

distinctive group where the absolute disparity was 7.7% or

lower.” United States v. Rodriguez-Lara, 421 F.3d 932,

943–44 (9th Cir. 2005). Thus, Hernandez-Estrada’s data did

not evidence actionable exclusion under Ninth Circuit law.

Hernandez-Estrada’s data also does not reflect a

substantial exclusion under any other Circuit’s test. The First,

Seventh, Eighth, and Eleventh Circuits solely rely on the

1

A successful fair cross-section claim requires “(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.” Duren v. Missouri,

439 U.S. 357, 364 (1979).

2

Hispanic people comprised 22.5% of the jury-eligible population.

Hernandez-Estrada, 704 F.3d at 1020. However, they were

overrepresented in the jury pool. Id. at 1021. Thus, I only address the

claim based on African-American underrepresentation.

38 UNITED STATES V. HERNANDEZ-ESTRADA

absolute disparity test. See United States v. Royal, 174 F.3d

1, 10–11 (1st Cir. 1999); United States v. Ashley, 54 F.3d

311, 314 (7th Cir. 1995); United States v. Clifford, 640 F.2d

150, 155 (8th Cir. 1981); United States v. Pepe, 747 F.2d 632,

649 n.18 (11th Cir. 1984). The 1.7% absolute disparity in this

case would not be sufficient to establish a prima facie fair

cross-section claim under these Circuits’ thresholds. See

Royal, 174 F.3d at 10–11 (upholding 2.97%); Ashley, 54 F.3d

at 314 (no prima facie case of underrepresentation if disparity

does not exceed 10%); Clifford, 640 F.2d at 155 (upholding

7.2%); United States v. Rodriguez, 776 F.2d 1509, 1511 (11th

Cir. 1985) (no prima facie case of underrepresentation if

disparity does not exceed 10%).

The Second and Fifth Circuits apply absolute disparity

and absolute impact. See United States v. Rioux, 97 F.3d 648,

657–58 (2d Cir. 1995) (applying absolute disparity and

absolute impact); Mosley v. Dretke, 370 F.3d 467, 479 n.5

(5th Cir. 2004) (applying absolute disparity and noting

comparative disparity could be used in another case); United

States v. Goff, 509 F.2d 825, 826–27 (5th Cir. 1975)

(applying absolute impact test). Under Second and Fifth

Circuit law, Hernandez-Estrada’s absolute disparity figure is

too low, and the absolute impact of excluding less than one

grand juror would likewise be insufficient. See Rioux, 97 F.3d

at 658 (upholding 2.14% absolute disparity); United States v.

Biaggi, 909 F.2d 662, 678 (2d Cir. 1990) (holding absolute

impact of two fewer African-American jurors in a venire of

60 not actionable); United States v. Butler, 611 F.2d 1066,

1070 (5th Cir. 1980) (holding absolute disparity under 10%

not actionable); Goff, 509 F.2d at 826–27 (holding absolute

impact of 1.4 fewer African-American jurors in the 23-person

grand jury not actionable).

UNITED STATES V. HERNANDEZ-ESTRADA 39

Hernandez-Estrada’s claim would also fail the Tenth

Circuit test applying absolute disparity and comparative

disparity. See United States v. Shinault, 147 F.3d 1266, 1273

(10th Cir. 1998) (holding insufficient a 2.56% absolute

disparity and a 50.09% comparative disparity when the group

at issue constituted 5.11% of the jury-eligible population).

The 1.7% absolute disparity and 32.7% comparative disparity

for a small minority population (5.2%) here would evidence

too insignificant an underrepresentation in the jury pool under

Tenth Circuit law.

Similarly, the Third Circuit’s test, applying absolute

disparity, comparative disparity, and standard deviation,

would defeat Hernandez-Estrada’s claim (registering 14

standard deviations). See Ramseur v. Beyer, 983 F.2d 1215,

1230, 1232–33 (3d Cir. 1992) (en banc) (upholding 14.1%

absolute disparity, 40.1% comparative disparity when

distinctive group made up 35.9% of jury-eligible population,

28.9 standard deviations).

Finally,3 Hernandez-Estrada’s statistical evidence would

not be actionable under the Fourth Circuit’s test. The Fourth

Circuit conflates the second and third Duren prongs and holds

that “use of current voter registration lists as the source for a

jury pool from which random selection of jurors is made

presumptively provides a fair cross-section.” United States v.

Lewis, 10 F.3d 1086, 1090 (4th Cir. 1993). To overcome the

presumption, there must be a showing of “affirmative

discrimination in [voter] registration.” Id. Here, Hernandez-

Estrada’s claim would fail, because there is no evidence of

such affirmative discrimination.

3

Neither the Sixth Circuit nor the D.C. Circuit has definitively

established a test for assessing Duren’s second prong.

40 UNITED STATES V. HERNANDEZ-ESTRADA

While Hernandez-Estrada’s claims do not meet Duren’s

second prong, the majority is correct that exclusive use of the

absolute disparity test seems inappropriate. United States v.

Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005) and its

predecessors required us to accept up to a 7.7% absolute

disparity based on a distinctive group’s representation in a

district’s general populace and the group’s presence in the

district’s jury pool. Id. at 943–44. This threshold necessarily

doomed claims challenging the underrepresentation of

minority populations comprising less than 7.7% of the

general population. Id. Consequently, Rodriguez-Lara tended

to deny the historically disenfranchised the “opportunity to be

considered for service on grand and petit juries,” an interest

the Jury Selection and Service Act endeavors to protect.

28 U.S.C. § 1861.

Those facts should cause us to question Rodriguez-Lara,

and overrule it in the appropriate case. However, we should

do so where a workable standard could be developed, based

on data and statistics in that case. Here, the majority relies on

the third Duren prong to affirm Hernandez-Estrada’s

conviction and avoids applying any new standard to replace

the rule expressed in Rodriguez-Lara. Had some statistical

analysis under Duren’s second prong been necessary to the

outcome of Hernandez-Estrada’s case (because he had

presented statistics tending to show actionable

underrepresentation), the majority could have demonstrated

a reasoned application of the appropriate statistical tests.

Such analysis could have served as a framework for district

courts to apply to future fair cross-section claims.

We owe the district courts more direction than a survey of

statistical measures to solve this problem. While the

discussion of available tests may aid the district courts in

UNITED STATES V. HERNANDEZ-ESTRADA 41

choosing a fitting measure for a given fair cross-section

challenge, the majority still provides no standard to evaluate

minority exclusion. With only discussion, the district courts

are left with at least these questions: In what circumstances

would the district court consider statistics from a particular

test? Should it apply more than one test? If so, which ones?

If it were to evaluate multiple tests, which would be

controlling? What outcomes under any test or tests would

constitute a legally intolerable exclusion?

Formerly, Rodriguez-Lara compelled us to apply an

overly rigid rule, which, while providing certainty, also

tended to discriminate against some minority groups. Now at

the other end of the spectrum, the majority establishes a

laissez faire approach likely to precipitate entirely

uncertain—and likely conflicting—outcomes.

Consequently, I respectfully concur only in the judgment.