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

September 6, 2012—Pasadena, California

Filed December 5, 2012

Before: Alex Kozinski, Chief Judge, Paul J. Watford and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Concurrence by Chief Judge Kozinski

2 UNITED STATES V . HERNANDEZ-ESTRADA

SUMMARY*

Criminal Law

The panel affirmed an illegal reentry conviction in a case

in which the defendant argued that in compiling its 2009

master jury wheel, the Southern District of California violated

the Jury Selection and Service Act of 1968 and the

Constitution.

Applying the absolute disparity rule, the panel held that

because a juror source list consisting only of registered voters

did not substantially underrepresent African-Americans or

Hispanics in the community, the Southern District’s failure to

supplement that list did not violate the Sixth Amendment.

The panel also held that because the defendant neither alleged

nor showed discriminatory intent, there was no Fifth

Amendment equal-protection violation.

The panel wrote that the Southern District Clerk’s Office

should not automatically disqualify individuals who express

doubt about their English skills, and should not put off

preparing statistical jury-representativeness forms required by

the Act, but that these technical violations did not frustrate

the Act’s goals and do not warrant merits relief in this case.

The panel held that the Southern District’s dismissal of

prospective jurors based solely on a “no” answer to a question

whether jurors “read, write, speak and understand the English

language” was not a substantial violation of the Act because

*

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

it did not interfere with the Act’s key goals of randomness

and objectivity. The panel also held that the defendant did

not demonstrate that the Southern District substantially

departed from the requirements of the Act by failing to return

questionnaires to prospective jurors who failed to answer

questions on race and/or ethnicity.

The panel cautioned the Southern District to take note of

the statutory violations identified and amend its practices in

the future.

Chief Judge Kozinski (joined by Judge Watford)

concurred without enthusiasm because the rule the panel is

bound to apply – i.e., measuring disparity for fair cross

section purposes by looking at absolute disparity, and

accepting up to 7.7% of the total jury pool as a permissible

deviation – is clearly wrong.

COUNSEL

Michele A. McKenzie, 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.

4 UNITED STATES V . HERNANDEZ-ESTRADA

OPINION

HURWITZ, Circuit Judge:

The question in this appeal is whether the United States

District Court for the Southern District of California violated

the Jury Selection and Service Act of 1968 (“JSSA”) or the

Constitution in compiling its 2009 master jury wheel.

Although the Southern District departed from the

requirements of the JSSA in several respects, we find no

reversible error in the underlying conviction.

I.

Salvador Hernandez-Estrada was indicted for being a

deported alien found in the United States in violation of

8 U.S.C. § 1326. Hernandez filed a motion to dismiss the

indictment, arguing that the Southern District violated the

JSSA and the Fifth and Sixth Amendments by using a juror

source list consisting only of registered voters. He argued

that the list underrepresented African-Americans and

Hispanics. Hernandez also alleged that the Southern District

violated the JSSA by (1) improperly disqualifying jurors for

having insufficient English-language abilities based on their

answers on the juror questionnaire; (2) improperly

disqualifying jurors whose levels of English-language

abilities were unclear; (3) failing to return questionnaires that

omitted information on race and/or ethnicity; and (4) failing

to keep jury representativeness statistics.

In response, the Government conceded that the Southern

District had violated the JSSA, but disputed that any of the

violations were substantial enough to warrant relief. See

28 U.S.C. § 1867(a) (providing for relief only for a

UNITED STATES V . HERNANDEZ-ESTRADA 5

“substantial failure to comply” with the JSSA). The

Government also disputed that the Southern District had

violated the Constitution.

The district court denied Hernandez’s motion to dismiss,

finding no constitutional violation and that any JSSA

violations were technical, not substantial, and so did not

warrant dismissal. The district court nevertheless

recommended that the Southern District make significant

changes to its jury selection practices. Hernandez was

convicted as charged.

Hernandez’s appeal challenges only the denial of the

motion to dismiss. “We review independently and non-

deferentially a challenge to the composition of grand and petit

juries,” including challenges under the JSSA. United States

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

II.

A.

Ordinarily, we would consider statutory claims before

reaching constitutional arguments. See Califano v. Yamasaki,

442 U.S. 682, 692 (1979). But here Hernandez’s

constitutional arguments are intertwined with his JSSA

claims. The JSSA contains a fair cross section guarantee,

28 U.S.C. § 1861, which is coextensive with the fair cross

section requirement of the Sixth Amendment. United States

v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985). Accordingly,

it makes more sense to address Hernandez’s constitutional

claims first.

6 UNITED STATES V . HERNANDEZ-ESTRADA

1.

The JSSA provides that prospective jurors “shall be

selected from the voter registration lists or the lists of actual

voters of the political subdivisions within the district or

division.” 28 U.S.C. § 1863(b)(2). Consistent with this

requirement, the Southern District selects prospective jurors

at random from the list of registered voters in the district.

The JSSA further provides, however, that districts “shall

prescribe some other source or sources of names in addition

to voter lists where necessary to” ensure a fair cross section,

afford all citizens the opportunity to be considered for jury

duty, and ensure that individuals are not excluded on the basis

of “race, color, religion, sex, national origin, or economic

status.” 28 U.S.C. §§ 1861, 1862, 1863(b)(2). The Southern

District does not supplement its source list. Hernandez

argues that its failure to do so violates the Fifth and Sixth

Amendments.

“The test for a constitutionally selected jury is the same,

whether challenged under the Sixth Amendment of the

Constitution or under the Jury Selection and Service Act.”

Miller, 771 F.2d at 1227.

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

c o m m u n i t y; a n d ( 3 ) t h a t t h i s

underrepresentation is due to systematic

UNITED STATES V . HERNANDEZ-ESTRADA 7

exclusion of the group in the jury-selection

process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Hispanics and

African-Americans are each distinctive groups under the first

prong of this test. United States v. Cannady, 54 F.3d 544,

547 (9th Cir. 1995).

“The second prong of the Duren test requires proof,

typically 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). In analyzing the

second prong, we use the absolute disparity test, which

requires us to measure underrepresentation “by taking the

percentage of the group at issue in the total population and

subtracting from it the percentage of that group that is

represented on the master jury wheel.” Sanchez-Lopez,

879 F.2d at 547; see also United States v. Rodriguez-Lara,

421 F.3d 932, 942–943 (9th Cir. 2005) (re-affirming our

commitment to the absolute disparity test); Berghuis v. Smith,

130 S. Ct. 1382, 1393–94 (2010) (neither requiring nor

prohibiting the use of any particular test in addressing claims

of underrepresentation).1 Although we have never drawn an

1

B ecause our precedents require use of the absolute disparity test, we

have no occasion today to consider other methodologies to analyze the

representativeness of the Southern District wheel. The difficulty with use

of the absolute disparity test in dealing with small populations was

recognized in Berghuis, 130 S. Ct. at 1393. But, as the Court noted in

declining to dictate the use of any particular methodology, “[e]ach test is

imperfect.” Id. For example, other courts have questioned the utility of

the standard deviation test. 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

8 UNITED STATES V . HERNANDEZ-ESTRADA

exact line, we have held that a disparity of 7.7% is acceptable.

Rodriguez-Lara, 421 F.3d at 943–44.

We “must rely on the statistical data that best

approximates the percentage of jury-eligible [members of the

group] in the district.” United States v. Torres-Hernandez,

447 F.3d 699, 704 (9th Cir. 2006). In 2009, 22.5% of the

Southern District’s citizen population 18 and over was

Hispanic and 5.2% was African-American.

We compare those percentages to the percentages of

Hispanics and African-Americans in the wheel. Sanchez-

Lopez, 879 F.2d at 547. In determining the percentage of

Hispanics in the jury wheel we exclude those who did not

identify their ethnicity on the questionnaire; and in

determining the percentage of African-Americans we exclude

those who did not identify their race. Rodriguez-Lara,

421 F.3d at 944 n.11. Excluding these individuals, Hispanics

made up 24.6% of the wheel and African-Americans made up

3.5%. Thus, Hispanics were overrepresented by 2.1% and

African-Americans were underrepresented by 1.7%. Since

these percentages do not begin to approach 7.7%

underrepresentation, Hernandez’s Sixth Amendment claim

fails.

Hernandez urges that we instead include in our

calculations individuals who failed to identify their race

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.”); see also Berghuis, 130 S. Ct.

at 1393 (noting that “no court . . . has accepted [a standard deviation

analysis] alone as determinative in Sixth Amendment challenges to jury

selection systems.” (quoting Rioux, 97 F.3d at 655) (brackets in original)).

UNITED STATES V . HERNANDEZ-ESTRADA 9

and/or ethnicity. As an initial matter, there is no way to know

that those who failed to identify their race or ethnicity were

not members of a minority group—after all, they did not

reveal their race or ethnicity. But even if we included them,

Hernandez’s claim still fails. There were 40,743 persons in

the qualified jury wheel, including non-responders to the race

and/or ethnicity questions. Of these, 1,257 identified

themselves as African-American and 6,625 as Hispanic.

Thus, even if we assume that there was not a single African-

American or Hispanic among the non-responders, African-

Americans constituted 3.1% and Hispanics 16.3% of the

qualified jury wheel. Using these numbers, African-

Americans were underrepresented by 2.1% and Hispanics by

6.2%. Neither clears the 7.7% threshold.

2.

To establish a violation of the equal protection guarantee

of the Fifth Amendment, a defendant must show not only

substantial underrepresentation of a protected group but also

“discriminatory intent.” Esquivel, 88 F.3d at 725 (citing

Castaneda v. Partida, 430 U.S. 482, 494 (1977)). Even

assuming that Hernandez could prove substantial

underrepresentation, he has neither alleged nor shown

discriminatory intent, so his Fifth Amendment claim also

fails.

III.

Because our rejection of Hernandez’s constitutional

claims dooms his fair cross section claim under the JSSA,

Miller, 771 F.2d at 1227, we now turn to his remaining

statutory claims.

10 UNITED STATES V . HERNANDEZ-ESTRADA

A.

Congress enacted the JSSA as a response to concerns that

racial discrimination frequently infected the jury selection

process. See Esquivel, 88 F.3d at 725. In order to combat

such discrimination, the JSSA prescribes a variety of

procedures in compiling lists of prospective jurors. See

28 U.S.C. §§ 1861–69. “Congress, recognizing that there

would undoubtedly be error in the jury selection process that

should not result in the dismissal of an indictment, left room

for harmless error by providing that dismissal should lie only

when there was a substantial failure to comply with the Act.”

United States v. Evans, 526 F.2d 701, 705 (5th Cir. 1976).

Thus, we will only dismiss Hernandez’s indictment if he

shows a “substantial” violation of the JSSA. 28 U.S.C.

§ 1867(a).

“Technical violations are insubstantial where they do not

frustrate the Act’s goals.” United States v. Nelson, 718 F.2d

315, 318 (9th Cir. 1983). Those goals are “‘random selection

of juror names from voter lists’” and “‘determination of juror

disqualifications, excuses, exemptions, and exclusions on the

basis of objective criteria only.’” United States v. Goodlow,

597 F.2d 159, 162 (9th Cir. 1979) (quoting H.R. Rep. No. 90-

1076, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 1792,

1793).

B.

Resolution of two of Hernandez’s JSSA claims is

straightforward. First, Hernandez argues that the Southern

District failed to regularly complete form AO-12, which must

be submitted to the Administrative Office of the United States

UNITED STATES V . HERNANDEZ-ESTRADA 11

Courts every two years as the master jury wheel is refilled.

See 28 U.S.C. § 1863(a).

The Southern District has been derelict in completing the

AO-12s on time. For example, the AO-12s for the 1999,

2001, and 2003 wheels were all completed in 2004 and the

AO-12s for the 2005 and 2007 wheels were completed in

November 2008. This timing seems to be related to the filing

of cases raising issues similar to those here. See Motion to

Dismiss, United States v. Martinez-Orosco, No. 3:03-cr-

02601-JAH (S.D. Cal. Oct. 8, 2004), ECF No. 47; Motion to

Dismiss, United States v. Garcia-Arellano, No. 3:08-cr-

02876-BTM (S.D. Cal. Nov. 7, 2008), ECF No. 21.

Nonetheless, by the time this litigation commenced

Hernandez had access to all AO-12s dating back to 1999,

including the AO-12 for the 2009 wheel, from which his

grand and petit juries were selected. Under these

circumstances, the Southern District’s past failures to

complete these forms on time did not interfere with the goals

of the JSSA.

Hernandez also claims that the Southern District clerk’s

office violated the JSSA by disqualifying approximately

twelve Hispanics and six Asian-Americans because of doubts

about their English language abilities. When asked on the

questionnaire whether they “read, write, speak and

understand the English language,” these individuals answered

“Yes.” Perhaps inconsistently, however, they expressed

doubts about their English language abilities elsewhere on the

questionnaire.

The clerk’s office appears to have disqualified any

prospective juror who expressed doubt anywhere in the

12 UNITED STATES V . HERNANDEZ-ESTRADA

questionnaire about English language abilities. This practice

is troublesome. Although the clerk may disqualify jurors

under the supervision of the court, 28 U.S.C. § 1865(a), these

disqualifications appear to present precisely the kind of

questionable determinations that should ultimately be made

by a judicial officer. See S.D. Cal. Civ. R. 83.10(c)(5)

(“Questionable requests for being excused or other status

determinations must be directed to the court.”).

Nevertheless, “[w]hile some technical errors were made,

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

determinations does not necessitate reversal.” Evans,

526 F.2d at 706. We deal here only with about 18 jurors, a

tiny fraction of the 40,743 in the qualified wheel. See United

States v. Bearden, 659 F.2d 590, 606–07 (5th Cir. 1981)

(finding erroneous dismissal of 495 prospective jurors

insubstantial because they represented a small fraction of the

total jury pool and the clerk’s office did not use any

subjective or discriminatory criteria). There is no indication

that the clerk’s office used any subjective criteria; it simply

dismissed any juror who expressed doubts about English

language ability. See Goodlow, 597 F.2d at 161–62 (finding

no substantial violation where men with child custody were

automatically excluded from jury service without a

determination of hardship).

The Southern District Clerk’s Office should not

automatically disqualify individuals who express doubt about

their English skills. Nor should it put off preparing AO-12s

until litigation is filed. The district should take steps to

remedy both of these issues, but neither merits relief in this

case.

UNITED STATES V . HERNANDEZ-ESTRADA 13

C.

Hernandez’s other claims are more substantive. Before

1968, prospective jurors were disqualified if “unable to read,

write, speak, and understand the English language.”

28 U.S.C. § 1861 (1957). The JSSA amended that standard,

and now provides that a prospective juror should be

disqualified only if he “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 if “unable to speak the English language.” 28 U.S.C.

§ 1865(b)(2), (3).

Question 4 of the Southern District questionnaire asks,

consistent with the old statutory standard, whether jurors

“read, write, speak and understand the English language.” In

assembling the 2009 wheel, the clerk’s office disqualified all

prospective jurors who answered “no” to that question. The

Government concedes that the dismissal of prospective jurors

based solely on their answers to this question violated the

JSSA but argues it is not a substantial violation.

Hernandez bears the burden “to present facts constituting

a substantial violation.” Nelson, 718 F.2d at 319. He argues

that because “Congress deliberately excised a prejudice

component” from the JSSA, United States v. Okiyama,

521 F.2d 601, 604 (9th Cir. 1975), he does not have to show

that jurors were incorrectly disqualified. Hernandez is wrong.

He still must prove that the violation was substantial; that is,

it interfered with the key goals of the JSSA: randomness and

objectivity. Goodlow, 597 F.2d at 162.

“For wrongful exclusions, determining whether there has

been a substantial violation has both quantitative and

14 UNITED STATES V . HERNANDEZ-ESTRADA

qualitative aspects.” Bearden, 659 F.2d at 607. The

qualitative aspect focuses on “whether there has been a

frustration of the Act’s underlying principle of exclusions on

the basis of objective criteria only.” Id. Quantitatively, a

violation that does not frustrate the Act’s objectivity principle

must result in a significant number of wrongful exclusions

before it will be deemed substantial. Id.

There was no frustration of the JSSA’s objectivity

principle here. Indeed, it is hard to imagine any more

objective criterion than the one used here. All prospective

jurors who answered “no” to Question 4 were disqualified;

the clerk’s office exercised no discretion. See United States

v. Carmichael, 560 F.3d 1270, 1278 (11th Cir. 2009).

Hernandez must therefore show that the improper

wording of Question 4 resulted in a significant number of

wrongful exclusions. Hernandez notes that of the 12,250

Hispanics who returned questionnaires, 1,420 were

disqualified solely because they answered “no” to Question

4. But even if we assume that all 1,420 prospective jurors

were wrongfully disqualified, that number does not establish

a substantial violation when viewed, as it must be, in the

context of the entire jury pool.

In Bearden, the Fifth Circuit found a violation

insubstantial when it resulted in the wrongful exclusion of

“only 1.2% of those screened” and “1.6% of those placed on

the qualified wheels.” 659 F.2d at 607. Here, the 1,420

jurors in question represent 2.0% of those who returned

questionnaires and 3.5% of the qualified wheel. Although

higher than the percentages held insubstantial in Bearden,

these figures do not establish a substantial violation. Cf.

Okiyama, 521 F.2d at 603–04 (finding violation substantial

UNITED STATES V . HERNANDEZ-ESTRADA 15

when 14 of 23 grand jurors had submitted questionnaires

containing “unanswered questions, ambiguous answers, and

an indication of little knowledge of English”); United States

v. Hill, 480 F. Supp. 1223 (S.D. Fla. 1979) (finding violation

substantial when it impacted 40.3% of the jury pool).

Hernandez also notes that of those answering “no” to

Question 4, 69.7% were Hispanic, and that the 1,420

Hispanic jurors excluded solely on the basis of their answers

to Question 4 make up 25.2% of the 5,625 Hispanic jurors

excluded for any reason. However, these statistics do not

relate to the randomness and objectivity goals of the JSSA;

they relate to the Act’s fair-cross-section goal. As explained

earlier, Hernandez has not established a substantial violation

of the JSSA based on frustration of the Act’s fair-cross-

section goal. Notwithstanding any wrongful exclusions

produced by the improper wording of Question 4, Hispanics

are not substantially underrepresented in the qualified jury

pool (and may even be slightly overrepresented). See supra

at 8–9.

Simply because Hernandez has failed to make a showing

that this violation is substantial does not mean a future

defendant will also fail. The Southern District can and should

remedy this problem. Asking Question 4 in its current form

is not itself a violation of the JSSA, but dismissing

prospective jurors solely because they answer “no” to that

question is. Thus, although changing the language of the

question is likely the easiest and most effective way to

remedy this violation, it may not be the only way. We leave

remediation to the district, but emphasize that change is

necessary. And we caution other districts to evaluate their

own questionnaires, as this problem appears not to be unique

to the Southern District.

16 UNITED STATES V . HERNANDEZ-ESTRADA

D.

Finally, Hernandez alleges that the Southern District’s

failure to return questionnaires to prospective jurors who

failed to answer the questions on race and/or ethnicity

violates 28 U.S.C. § 1864(a). That section states:

In any case in which it appears that there is an

omission, ambiguity, or error in a form, 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.

Id.

Even assuming that § 1864(a) requires that every

questionnaire with any omission be returned, Hernandez has

not demonstrated that the Southern District substantially

departed from the requirements of the JSSA. Section 1864(a)

is plainly designed to serve the JSSA’s goals of assuring that

juries are “selected at random from a fair cross section of the

community,” 28 U.S.C. § 1861, and preventing

discrimination in the selection process, 28 U.S.C. § 1862.

The representativeness of the 2009 wheel makes clear that

neither goal was compromised here. Even if we assume that

each non-responder was neither Hispanic nor African-

American, the jury wheel nonetheless was fairly

representative of the district. Moreover, no prospective juror

was excluded for failure to respond to these questions, so

there can be no contention that the district thereby used

UNITED STATES V . HERNANDEZ-ESTRADA 17

subjective criteria in compiling the wheel. See United States

v. Marcano, 508 F. Supp. 462, 468 (D.P.R. 1980).

Nonetheless, the Southern District may not be so lucky in

the future. The percentages of those in the qualified wheel

who did not answer the race and ethnicity questions—11.56%

and 33.81% respectively—are significant. If they remain so,

it is not hard to imagine that in future years a court may be

unable to conclude that the race or ethnicity of the non-

responders could not have affected the legality of the

resulting wheel.

The district must take appropriate steps to increase the

response rate to these two questions. While we leave to the

district how exactly to accomplish that goal, we note that the

district court suggested three potential remedies, all of which

deserve careful consideration.

First, the district court noted that each questionnaire

informed jurors that federal law required them to answer the

questions on race and ethnicity to help prevent discrimination

and that their answers would not affect their eligibility for

jury service. But that information was in small print on the

back of the questionnaire. The district court recommended

moving that instruction to the front. Second, the district court

recommended reversing the order of the race and ethnicity

questions so that the ethnicity question would come first.

Many jurors might not answer the ethnicity question when it

follows the race question because they feel that doing so is

unnecessary or redundant. After all, the omission rate for the

ethnicity question far exceeded that for the race question.

Finally, the district court noted that some districts permit

online submission of questionnaires. In such districts, the

18 UNITED STATES V . HERNANDEZ-ESTRADA

questionnaire cannot be submitted online without completing

the questions at issue here. The district should consider these

options, as well as any others that might increase the response

rate.

IV.

Despite our conclusion that no reversible error exists here,

we caution the Southern District (and others) to take note of

the statutory violations we have identified and amend its

practices in the future. For now, because no JSSA violation

warrants relief and there was no constitutional violation, we

affirm Hernandez’s conviction and sentence.

AFFIRMED.

Chief Judge KOZINSKI, with whom Judge WATFORD

joins, concurring:

I join Judge Hurwitz’s opinion (except footnote one)

because it faithfully applies the law of our circuit. See United

States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir. 2005).

But I do so without enthusiasm because the rule we are bound

to apply is clearly wrong. It makes no sense to measure

disparity for fair cross section purposes by looking at absolute

disparity, and accept up to 7.7 percent of the total jury pool as

a permissible deviation. See United States v. Suttiswad,

696 F.2d 645, 649 (9th Cir. 1982) (holding that 7.7 percent

absolute disparity is acceptable). The absurdity of this

number is brought home by observing that a group that is less

than 7.7 percent of the total population can never be

underrepresented, no matter how far the jury pool percentage

UNITED STATES V . HERNANDEZ-ESTRADA 19

deviates from that in the total population. See Rodriguez-

Lara, 421 F.3d at 943 n.10.

This anomaly disappears for larger groups. A group that

is 75 percent of the total population could register a

cognizable disparity if it were only 67 percent of the jury

pool, while a group that is 7.5 percent could never register a

disparity, even if entirely absent from the pool. I have a hard

time accepting a rule that favors larger groups and ignores

smaller groups altogether.

Our cases have referred to the “main alternative” to

absolute disparity as “comparative disparity.” Id. We

rejected that approach because we thought it was unworkable

with small numbers: “[I]f Hispanics are 2% of the

community and 1% of the jury pool, the comparative

disparity is 50%, but for every 100 jurors, there is only one

fewer Hispanic than would be proportional.” Id.; see also

United States v. Sanchez-Lopez, 879 F.2d 541, 547–48 (9th

Cir. 1989). But we’re not dealing here with a hundred

people; we’re dealing with a jury pool of over 40,000. For a

group that size, there are statistical methods that can easily

tell us whether a sub-group that is 5.2 percent of the

population (blacks in the Southern District) is

underrepresented if it makes up only 3.5 percent of the jury

pool.

In the equal protection context, the Supreme Court has

used “standard deviation analysis,” see, e.g., Castaneda v.

Partida, 430 U.S. 482, 496 n.17 (1977), which “seeks to

determine the probability that the disparity between a group’s

jury-eligible population and the group’s percentage in the

qualified jury pool is attributable to random chance,”

Berghuis v. Smith, 130 S. Ct. 1382, 1390 n.1 (2010). More

20 UNITED STATES V . HERNANDEZ-ESTRADA

than two or three standard deviations means that “the

hypothesis that the jury drawing was random would be

suspect to a social scientist.” Castaneda, 430 U.S. at 496

n.17. Doing some quick math, I calculate that the disparity

between 5.2 percent and 3.5 percent in this case is more than

14 standard deviations. See id. (detailing the formula). So

there’s cause to worry.

I’m not sure whether standard deviation analysis is

appropriate here, but I suspect that a statistician would laugh

at our current methodology. As a three-judge panel, we’re

not free to depart from Rodriguez-Lara, but an en banc court

could, and perhaps should, take a fresh look at the issue.