United States v. Ruben Galvin Garcia ( 2016 )


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  •                   United States Court of Appeals
                                  For the Eighth Circuit
                              ___________________________
    
                                      No. 15-2844
                              ___________________________
    
                                   United States of America
    
                              lllllllllllllllllllll Plaintiff - Appellee
    
                                                 v.
    
                Ruben Galvin Garcia, also known as Ruben Galvan Garcia
    
                            lllllllllllllllllllll Defendant - Appellant
                                            ____________
    
                          Appeal from United States District Court
                         for the District of North Dakota - Bismarck
                                        ____________
    
                                 Submitted: October 19, 2016
                                  Filed: December 30, 2016
                                       [Unpublished]
                                       ____________
    
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
                                 ____________
    
    PER CURIAM.
    
           A jury convicted Ruben Galvin Garcia of one count of aiding and abetting
    conspiracy to possess with intent to distribute and to distribute a controlled substance,
    in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one count of distribution of a
    controlled substance, in violation of 21 U.S.C. § 841(a)(1). Garcia appeals, arguing
    that the district court1 should have allowed him to examine the list of potential jurors
    and that the venire did not represent a fair cross section of the community. We
    affirm.
    
          Garcia’s trial was held in Bismarck, North Dakota, then in the Southwestern
    Division of the District of North Dakota. After the panel of potential jurors was
    sworn and before trial began, Garcia’s counsel argued that the venire did not
    represent a fair cross section of the community. Specifically, he argued:
    
           [W]e should have on this potential jury panel at least three Native
           Americans and with our two Indian reservations in this district[,] there
           are none. With this lack of minority [representation, it] concerns me that
           the clerk’s office has not drawn a fair cross section of the community for
           the jury panel . . . .
    
            The district court called as a witness the jury administrator for the United States
    District Court in North Dakota. The administrator explained in detail the District’s
    jury plan and testified that the pool of prospective jurors is randomly drawn from a
    list of individuals who voted in the last presidential election. When asked whether
    “we usually see at least one or two Native Americans on the potential jury panel,” the
    administrator replied, “I would say not.” The district court overruled Garcia’s
    objection and determined that the District’s “jury plan is racially neutral on its face.”
    It concluded that “this panel has been selected in a manner consistent with our plan
    [and] that there is no systematic exclusion of anyone based on race or other improper
    consideration.”
    
          Garcia first argues that he should have been allowed to inspect the list of
    potential jurors. A provision in the Jury Selection and Service Act, 28 U.S.C.
    
    
          1
           The Honorable Ralph R. Erickson, then Chief Judge, United States District
    Court for the District of North Dakota.
    
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    § 1862(f), gives defendants “essentially an unqualified right to inspect jury lists.”
    Test v. United States, 
    420 U.S. 28
    , 30 (1975) (per curiam). “To avail himself [or
    herself] of [the] right of access to otherwise unpublic jury selection records, a litigant
    need only allege that he [or she] is preparing a motion challenging the jury selection
    procedures.” United States v. Stanko, 
    528 F.3d 581
    , 587 (8th Cir. 2008) (quoting
    United States v. Alden, 
    776 F.2d 771
    , 773 (8th Cir. 1985)) (alteration in Alden).
    Garcia did not ask to inspect the list of potential jurors, nor did he allege that he was
    preparing a motion to challenge the jury selection procedures or otherwise indicate
    to the district court that he sought the jury list. Garcia thus failed to avail himself of
    the right to inspect the jury selection records, and the district court did not err in
    failing to order sua sponte that those records be made available.
    
           Garcia argues that the jury panel did not represent a fair cross section of the
    community. He claims that the jury selection process improperly excluded Native
    Americans from the venire, in violation of his Sixth Amendment rights. To prevail
    on this claim, Garcia must prove: “(1) Native Americans are a distinctive group in
    the community; (2) their representation in his venire was not fair and reasonable in
    relation to their representation in the community; and (3) their under-representation
    resulted from their systematic exclusion from the jury-selection process.” United
    States v. Morin, 
    338 F.3d 838
    , 843 (8th Cir. 2003). Even assuming that Garcia has
    established the first two elements, he cannot show that Native Americans are
    systematically excluded from the jury selection process in the District of North
    Dakota. We have previously upheld North Dakota’s jury selection plan, which, as
    mentioned above, draws its pools of prospective jurors randomly from lists of persons
    who voted in the last presidential election. See United States v. Greatwalker, 
    356 F.3d 908
    , 911 (8th Cir. 2004) (per curiam); Morin, 338 F.3d at 843-44. We have said
    that “[a]bsent proof that Native Americans, in particular, face obstacles to voter
    registration in presidential elections, ethnic and racial disparities between the general
    population and jury pools do not by themselves invalidate the use of voter registration
    lists and cannot establish the systematic exclusion of allegedly under-represented
    
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    groups.” Greatwalker, 356 F.3d at 911 (quoting Morin, 338 F.3d at 844). Garcia has
    not attempted to establish that Native Americans faced obstacles to registering to vote
    in the presidential election, and he thus has failed to show that Native Americans
    were systematically excluded from the jury selection process.
    
           Garcia also argues that the composition of the jury violated his constitutional
    right to equal protection. “In order to make out a prima facie case of an equal
    protection violation in the composition of a jury, a defendant must show that an
    identifiable, distinct class has been substantially under-represented in the source from
    which jurors have been drawn over a significant period of time.” United States v.
    Horne, 
    4 F.3d 579
    , 588 (8th Cir. 1993) (citing Castaneda v. Partida, 
    430 U.S. 482
    ,
    494 (1977)). Garcia argues that the jury administrator’s testimony that there were not
    usually “at least one or two Native Americans on the potential jury panel” establishes
    a systematic exclusion of Native Americans from venires. That testimony alone,
    however, does not constitute a prima facie showing that Native Americans have been
    substantially under-represented from the venires over a significant period of time.
    Garcia has not presented evidence showing the number of Native Americans who live
    in the Southwestern Division of the District of North Dakota or the number of Native
    Americans who have served in its venires over time. He likewise has not shown a
    difference between the percentage of Native Americans in the Division’s population
    and the percentage of Native Americans in the Division’s venire. Accordingly, his
    equal protection claim must fail. Compare Castaneda, 430 U.S. at 495 (holding that
    the respondent’s showing “that the population of the county was 79.1% Mexican-
    American, but that, over an 11-year period, only 39% of the persons summoned for
    grand jury service were Mexican-American” established a prima facie case of
    discrimination against Mexican-Americans in the county’s grand jury selection
    process), with Horne, 4 F.3d at 588 (holding that a showing that the division’s venire
    during a two-month period was 1.4% African-American and that the division’s
    population was 2.9% African-American presented too slight a statistical deviation to
    
    
    
                                              -4-
    establish a prima facie case of discrimination against African-Americans in the
    division’s venire).
    
          The judgment is affirmed.
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