Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2001

USA v. Weaver
Precedential or Non-Precedential:

Docket 00-2203




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Filed September 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-2203

UNITED STATES OF AMERICA

v.

RUDOLPH WEAVER,
       Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 99-cr-00002E)
District Judge: Honorable Sean J. McLaughlin

Argued March 15, 2001

Before: RENDELL, AMBRO, and BRIGHT,*
Circuit Judges

(Filed: September 21, 2001)

       Thomas W. Patton, Esq. [ARGUED]
       Office of Federal Public Defender
       1001 State Street
       1111 Renaissance Centre
       Erie, PA 16501
Counsel for Appellant
Rudolph Weaver



_________________________________________________________________
* The Honorable Myron H. Bright, Senior Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
       Bonnie R. Schlueter, Esq. [ARGUED]
       Office of United States Attorney
       633 United States Post Office
        & Courthouse
       Pittsburgh, PA 15219
       Counsel for Appellee
       United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

Rudolph Weaver appeals his armed robbery conviction on
the grounds that the jury pool in the Erie Division of the
Western District of Pennsylvania, from which the jury that
convicted him was chosen, did not reflect a fair cross
section of the community as required by the Sixth
Amendment and the Jury Service and Selection Act. Weaver
also challenges other rulings of the District Court based on
the Jencks Act and procedures he claims are required in
order to sentence him under the "Three Strikes" statute, 18
U.S.C. S 3559 (c)(1). The District Court found no violation of
Weaver's constitutional or statutory rights. We will affirm.

I. FACTS AND PROCEEDINGS

On December 21, 1998, Weaver entered the First
National Bank in Erie, Pennsylvania, waving a gun and
demanding the cash in the tellers' drawers. He threatened
to shoot the tellers if they did not comply with his orders.
The tellers emptied the contents of their drawers into
shopping bags, and Weaver left with approximately
$20,000. Later that day, bank surveillance photographs
taken during the robbery were shown on news programs,
and a former classmate of Weaver's, Mary Giulianelli,
communicated with the F.B.I. immediately after the evening
news to identify Weaver as the man shown in the photos.
App. at 767-68. The following day, Agent Van Slyke showed
a photo array to Rosalie Landon, one of the three tellers on
duty that day. Coincidentally, Landon had helped Weaver
open an account at the bank several months before the

                               2
robbery. She identified Weaver as the robber. App. at 502-
03.

In January 1999, a grand jury returned a two-count
indictment charging Weaver with bank robbery in violation
of 18 U.S.C. S 2113(a) and use of a dangerous weapon in
connection with a bank robbery in violation of 18 U.S.C.
2113(d). Weaver was arrested on March 25, 1999. On
February 10, 2000, as required by 18 U.S.C. S 851(a), the
government filed notice of its intent to seek a mandatory life
sentence pursuant to 18 U.S.C. S 3559(c). The case
proceeded to trial on March 21, 2000. The evidence was
overwhelming: Weaver's girlfriend, Ethel Mae Wheat,
testified that Weaver told her that he had robbed the bank
and showed her a briefcase containing several thousand
dollars. App. at 720. In addition, Wheat's son testified that
he owned a gun similar to the one in the photographs,
which had been missing since the time of the bank robbery.
App. at 634-35. They also identified certain clothing
belonging to Weaver, which was the clothing identified by
witnesses as having been worn by the robber. App. at 639-
41, 732-34. In addition, three of Weaver's acquaintances
testified that they believed the man in the surveillance
photographs to be Weaver. On March 24, 2000, a jury
found Weaver guilty on both counts. In an amended
judgment of sentence entered on July 24, 2000, the District
Court sentenced Weaver to life in prison and ordered him
to pay restitution in the amount of $31,051.30.

The District Court had jurisdiction over Weaver's criminal
prosecution pursuant to 18 U.S.C. S 3231. We have
appellate jurisdiction pursuant to 28 U.S.C.S 1291 and
18 U.S.C. S 3742. We review the District Court's findings of
fact for clear error, and its legal conclusions de novo. United
States v. Scott, 

, 210 (3d Cir. 2000). Whether
a defendant has been denied his or her right to a jury
selected from a fair cross section of the community is a
mixed question of law and fact, and is reviewed de novo.
United States v. Allen, 

, 1101 (6th Cir. 1998);
United States v. Miller, 

, 1227 (9th Cir. 1985);
see also United States v. Grisham, 

, 1077
(11th Cir. 1995) (holding that constitutional challenges to
jury selection process are reviewed de novo).

                                3
II. DISCUSSION

A. Challenge to Fair Representation in the Jury Pool

Weaver challenges his conviction on the grounds that he
was denied his right to a jury drawn from a fair cross
section of the community as required by the Sixth
Amendment's fair cross section provision1 and the Jury
Selection and Service Act of 1968, which codifies the Sixth
Amendment right. He argues that the pool from which his
jury was selected underrepresented African-Americans and
Hispanics due to its exclusive reliance on voter registration
lists.

"[T]he American concept of the jury trial contemplates a
jury drawn from a fair cross section of the community. . . .
[I]t is part of the established tradition in the use of juries as
instruments of public justice that the jury be a body truly
representative of the community." Taylor v. Louisiana, 

, 527 (1975) (internal quotation marks omitted).
This requirement of a fair cross section is not without
substantial limits -- it does not guarantee that juries be "of
any particular composition." 

All that is required
is that "the jury wheels, pools of names, panels, or venires
from which juries are drawn must not systematically
exclude distinctive groups in the community and thereby fail
to be reasonably representative thereof." 

The objectives of the fair cross section requirement
include avoiding "the possibility that the composition of the
juries would be arbitrarily skewed in such a way as to deny
criminal defendants the benefit of the common-sense
judgment of the community" and avoiding the "appearance
of unfairness" that would result from excluding"large
groups of individuals, not on the basis of their ability to
serve as jurors, but on the basis of some immutable
characteristic such as race, gender or ethnic background."
Lockhart v. McCree, 

, 175 (1986).
_________________________________________________________________

1. The Sixth Amendment provides: "In all criminal prosecutions, the
accused shall enjoy the right to a . . . . trial[ ] by an impartial jury
of the
State and district wherein the crime shall have been committed . . . ."
U.S. Const. Amend. VI.

                               4
The Jury Selection and Service Act ("The Act") provides as
follows:

       [A]ll litigants in Federal courts entitled to trial by jury
       shall have the right to grand and petit juries selected
       at random from a fair cross section of the community
       in the district or division wherein the court convenes.
       It is further the policy of the United States that all
       citizens shall have the opportunity to be considered for
       service on grand and petit juries in the district courts
       of the United States, and shall have an obligation to
       serve as jurors when summoned for that purpose.

28 U.S.C. S 1861 (West 2001). The Act "seeks to ensure
that potential grand and petit jurors are selected at random
from a representative cross section of the community and
that all qualified citizens have the opportunity to be
considered for service." United States v. Calabrese, 

, 220 (3d Cir. 1991) (internal quotation marks
omitted). Claims under the Act are analyzed using the same
standard as a Sixth Amendment fair cross section claim.
See United States v. Test, 

, 584-85 (10th Cir.
1976) (en banc) (Act's fair cross section standard is
"functional equivalent of the constitutional`reasonably
representative' standard").

When enacted, the Act required "[e]ach United States
district court [to] devise and place into operation a written
plan for random selection of . . . petit jurors that[would] be
designed to achieve the [above-mentioned] objectives of
sections 1861 and 1862." 28 U.S.C. S 1863(a) (West 2001).
Congress determined that the principal source of names for
the random selection should be either "the voter
registration lists or the lists of actual voters." 

1863(b)(2). The Act also provided: "The plan shall
prescribe some other source or sources of names in
addition to voter lists where necessary to foster the policy
and protect the rights secured by sections 1861 and 1862
. . . ." 

to establish a prima facie violation of the fair
cross section requirement of the Sixth Amendment and the
Act, the defendant must demonstrate: (1) the group alleged
to be excluded is a "distinctive" group in the community; (2)

                                5
the representation of this group in jury venires is not "fair
and reasonable" in relation to the number of such persons
in the community; and (3) the underrepresentation is
caused by the "systematic exclusion of the group in the jury
selection process." Duren v. Missouri, 

, 364
(1979). A defendant need not show discriminatory intent.
See 

n. 26 ("In contrast [to an Equal Protection
claim], in Sixth Amendment fair cross-section cases,
systematic disproportion itself demonstrates an
infringement of the defendant's interest in a jury chosen
from a fair community cross section.") And, "once a
defendant has made a prima facie showing of an
infringement of his constitutional right to a jury drawn a
fair cross section of the community, it is the State that
bears the burden of justifying this infringement by showing
attainment of a fair cross section to be incompatible with a
significant state interest." 

The plan approved by the Western District of
Pennsylvania at the time of the jury selection in Weaver's
case, and currently in effect, employs voter registration lists
as the exclusive source from which it summons potential
jurors for service. App. at 77. Juror names are drawn at
random from the voter registration lists of the seven
counties in the Erie Division and placed into a master jury
wheel ("master wheel").2Id. At periodic intervals, the Clerk
publicly draws names at random from the master wheel. All
those selected are sent jury questionnaires. 

who return questionnaires and are not disqualified, exempt
or excused, are placed in a separate wheel called the
"qualified wheel." App. at 87.

To prove his claim that the venire underrepresented
African-Americans and Hispanics in violation of his
constitutional and statutory rights, Weaver introduced the
testimony of Dr. Andrew A. Beveridge, who was recognized
as an expert in demography. Beveridge compared the
number of African-Americans and Hispanics in the adult
population of seven counties comprising the Erie Division
to the number of African-Americans and Hispanics
represented in the master wheels used in the Erie Division
since 1995.
_________________________________________________________________

2. The master wheel is emptied and refilled every two years. App. at 83.

                               6
The District Court found the statistical evidence offered
for the years prior to 1999 to be too "weak" to "establish
unfair and unreasonable representation" because the
findings were based on random samples that the District
Court found to be inadequate (500 persons for 1995 and
1997). App. at 16. The District Court based this
determination in part on Beveridge's concession that a
sample size of only 500 "weakens the power of the
estimate," and also on his admission that he could not
conclude within a reasonable degree of mathematical
certainty that there was underrepresentation during either
of those years without looking at the entire pattern.3 App.
at 251-52. In examining the 1999 evidence, the District
Court noted, as testified to by Beveridge and argued by
Weaver, that in contrast to 1995 and 1997, Beveridge was
able to obtain "a complete statistical breakdown" of the
1999 "master wheel." App. at 15, 99, Appellant Br. at 29.

Beveridge determined that while census figures indicate
that 3.07% of the voting population in Erie is African-
American, African-Americans comprised only 1.84% of the
1999 master wheel. He also stated that Hispanics
comprised .97% of the population, but only .26% of the
wheel.4 The absolute disparity, which is calculated by
subtracting the percentage of the group on the wheel from
the percentage of the group in the relevant population,
Ramseur v. Beyer, 

, 1231 (3d Cir. 1992) (en
banc), is thus 1.23% for African-Americans, and .71% for
Hispanics. Using a comparative disparity analysis, 5 which is
_________________________________________________________________

3. Weaver does not challenge this finding on appeal, choosing instead to
focus on the evidence Beveridge presented regarding all returned
questionnaires from 1999.
4. This chart represents the statistics before us:

1999 Wheel     Percentage in   Percentage in    Absolute      Comparative
               Population      Wheel            Disparity     Disparity

African-       3.07            1.84             1.23          40.01
Americans

Hispanics       .97            .26              .71           72.98

5. An example of comparative disparity is as follows: in a master wheel
of 1000, where a group comprises 50% of the population, yet only makes

                               7
calculated by dividing the absolute disparity by the
percentage of the population that a particular group
comprises, 

the disparity for African-Americans
was 40.01%, while it was 72.98% for Hispanics. This figure
"measures the diminished likelihood that members of an
underrepresented group, when compared to the population
as a whole, will be called for jury service." 

Beveridge did not perform an additional calculation
normally used in fair cross section claims. Known as
"standard deviation" analysis, this calculation is only
utilized where the expert has performed an analysis based
on a random sample from the voter wheel.6 Here, Beveridge
claimed to be analyzing the entire wheel instead of taking
a sample.7 Therefore, he stated that there was no standard
deviation calculation. However, Beveridge did perform a
"binomial distribution analysis," which measures the
_________________________________________________________________

up 25% of the wheel, the comparative disparity is 50%, because half of
that group is being excluded. That is, there should be 500 of that group
on the wheel, but there are only 250. Hence, there is 50%
underrepresentation within the group itself.

6. Beveridge elucidated the concept by offering the following example: in
a survey of 800 persons, where the results indicate that 46% of people
would vote for Candidate A, and 46% for Candidate B, with a margin of
error of 3%, the margin of error establishes the degree of confidence that
the figures presented represent the entire voting population, even though
the survey is based on a sample of only 800 persons. Beveridge stated
that standard deviation is like a margin of error, because it establishes
the probability that a sample taken from the jury wheel accurately
reflects the composition of the entire wheel. App. at 218.

7. As we will address in our discussion of Weaver's statistical
presentation, despite his testimony, Beveridge did not actually analyze
the entire master wheel. He testified that he was able to determine the
race of nearly every juror on the master wheel based on those jurors
indicating their race on the questionnaires sent to them. The master
wheel consists of jurors chosen at random from the voter registration
rolls, before any questionnaires have been mailed yet. But Beveridge
actually examined, and testified based on, the returned questionnaires.
For the 1999 wheel, 5,877 questionnaires were mailed. App. at 125. Yet
only 4,753 of those were completed and returned. 

not
attempt to account for those not returned, yet consistently testified that
he had examined the entire composition of the master wheel.

                               8
likelihood that the underrepresentation of African-
Americans and Hispanics would occur by random chance.
Beveridge stated that the likelihood for African-Americans
was one in 6,603,384 and for Hispanics, one in
130,337,015.

The District Court first stated that it believed that under
our existing precedent, Weaver's claim would fail on the
first prong of the prima facie case because African-
Americans and Hispanics who do not vote are not
cognizable groups. The Court then found that, even
assuming that the first prong had been satisfied, Weaver's
claim still failed on the basis of the second and third
prongs. It held that Weaver's statistical presentation was
too limited, and that using voter registration lists to
generate the venire did not amount to systematic exclusion.
We will address each of the three prongs of the prima facie
case identified in Duren, all of which Weaver must satisfy in
order to make out a fair cross section claim.

1. First Prong -- Cognizable group

The District Court here framed the issue in the same way
we did in United States v. Lewis, 

, 255 (3d Cir.
1973), decided before the Supreme Court's opinion in
Duren. Lewis involved a challenge to the venire selection
process based on its alleged underrepresentation of African-
Americans. Without the guidance of Duren regarding the
prima facie claim, it appears we missed the mark as to
what a plaintiff must show in order to demonstrate that a
cognizable group was underrepresented. In Lewis , we held
that to successfully make out a fair cross section claim,
"the defendant must establish that Blacks . . . . choosing
not to register to vote were a cognizable group which were
systematically excluded." 

We agree with Weaver that Lewis has been overruled by
Duren at least insofar as its view of the first prong is
concerned. While it is true that persons who do not vote are
not a cognizable group, e.g., United States v. Afflerbach,

, 869 (10th Cir. 1985) ("Persons who choose
not to register to vote do not comprise . . . a cognizable
group."), this is not the relevant inquiry. Rather, when a
specific population such as African-Americans or Hispanics

                                9
is claimed to be underrepresented by the voter rolls, the
relevant inquiry is simply whether African-Americans and
Hispanics are cognizable groups.

This is made clear by Duren, in which the defendant
challenged the underrepresentation of women, where
Missouri had a procedure that gave women the option of
exempting themselves from jury 

.
The Supreme Court noted the proper approach to the first
prong:

       With respect to the first part of the prima facie test,
       Taylor v. Louisiana, without a doubt, established that
       women are sufficiently numerous and distinct from
       men so that if they are systematically eliminated from
       jury panels, the Sixth Amendment's fair cross-section
       requirement cannot be satisfied.

Thus, we now evaluate the first prong of the
Duren fair cross section test by making the following
inquiry: Is the allegedly underrepresented group sufficiently
numerous and distinct from others in the population that
if members of the group are systematically eliminated, the
defendant's right to a jury composed of a fair cross section
of the community would be violated?8

Applying this analysis to the instant case, Weaver's claim
satisfies the first prong of the Duren test: African-Americans
and Hispanics are "distinctive" groups for the purposes of
a fair cross-section analysis. Castaneda v. Partida, 

, 495 (1977) ("[I]t is no longer open to dispute that
Mexican-Americans are a clearly identifiable class.");

("African-Americans are
unquestionably a constitutionally cognizable group."); see
also United States v. Royal, 

, 6 (1st Cir. 1999)
_________________________________________________________________

8. Furthermore, if we were to adhere to Lewis 's theory of the relevant
cognizable group, then Duren's second prong, which was not discussed
in Lewis, could not be meaningfully applied. As we will discuss, the
second prong requires a comparison between the representation of the
group in jury venires and the number of such persons in the 

. Were we to define the relevant group as all African-
Americans not registered to vote, as the District Court did, the
representation of the group in the jury venire -- and, thus, the
numerator in the calculation -- would always be zero.

                               10
("There is no dispute that . . . Blacks are unquestionably a
"distinctive" group for the purposes of a fair cross-section
analysis."); United States v. Jackman, 

, 1246
(2d Cir. 1995) ("There is little question that both Blacks and
Hispanics are "distinctive" groups in the community for
purposes of this test."). Thus, we disagree with the District
Court's analysis of the first prong of the Duren prima facie
case.

2. Second Prong -- "Fair and reasonable"
       representation

The second prong of Duren asks whether the
representation of the group in the jury venires is fair and
reasonable in relation to the number of such persons in the

. This is, at least in part, a
mathematical exercise, and must be supported by
statistical evidence. 

defendant must
demonstrate the percentage of the community made up of
the group alleged to be underrepresented, for this is the
conceptual benchmark for the Sixth Amendment fair-cross-
section requirement." 

figures indicate that
3.07% of the voting population in the seven counties
comprising the Erie Division is African-American and.97%
is Hispanic. This data has not been challenged; hence, we
will proceed on the assumption that these figures are
correct.

In Ramseur, we considered a challenge to the jury
selection process in Essex County, New Jersey, which used
both voter registration and Department of Motor Vehicle
lists as the source of its master 

.
Ramseur argued that African-Americans were being
excluded in violation of both the Equal Protection Clause of
the Fourteenth Amendment9 and the fair cross section
_________________________________________________________________

9. No equal protection challenge is made here. It requires a different
showing:

       The first step is to establish that the group [alleged to be
       underrepresented] is one that is a recognizable, distinct class,
       singled out for different treatment under the laws, as written or
as
       applied. Next, the degree of underrepresentation must be proved, by
       comparing the proportion of the group in the total population to
the

                               11
provision of the Sixth Amendment. We found that while the
first prong of each test was met, Ramseur's two year-long
study establishing 14.1% absolute disparity and 40%
comparative disparity presented "insufficient" figures to
meet either the Equal Protection or Sixth Amendment
standards set forth in Castaneda and Duren, 

. We denied both claims, 

focusing the majority of our analysis on Ramseur's Equal
Protection challenge, 

In our brief discussion of Ramseur's Sixth Amendment
claim, we appear to have combined the second and the
third prongs of Duren, and stated, generally, that our
inquiry involved an examination of "the nature of the
process by which jury lists are composed, the length of time
of underrepresentation, and the strength of the evidence
that purports to establish an `unfair and unreasonable'
representation under Duren." 

We determined
that, looking at these factors, Ramseur had not made out
a prima facie case under the Sixth Amendment. 

two years of inconclusive statistical
data and the county process was shown to be facially
neutral and part of an ongoing process in New Jersey to
increase the representative nature of jury lists. 

considered these two prongs in tandem in Ramseur,
here we will evaluate them separately. Following Duren's
approach, the strength of the evidence should be
considered under the second prong, while the nature of the
_________________________________________________________________

         proportion called to serve as grand jurors, over a significant
period
       of time. This method of proof, sometimes called the"rule of
       exclusion," has been held to be available as a method of proving
       discrimination in jury selection against a delineated class.
Finally,
       as noted above, a selection procedure that is susceptible of abuse
or
       is not racially neutral supports the presumption of discrimination
       raised by the statistical showing. Once the defendant has shown
       substantial underrepresentation of his group, he has made out a
       prima facie case of discriminatory purpose, and the burden then
       shifts to the State to rebut that case.

(internal quotation marks and citations
omitted).

                                 12
process and the length of time of underrepresentation
should be considered under the third.10

Looking at the strength of the evidence supporting the
second prong, we will examine the percentages of the two
populations represented on the master wheel. The
government does not challenge Weaver's data indicating
that African-Americans and Hispanics comprised 1.84%
and .97%, respectively, of the 1999 master wheel. However,
the parties do dispute which method of statistical analysis
should be used to determine the significance of the
disparity between the percentages on the master wheel and
the percentages in the voting population.

Weaver urges that we should analyze the figures using
comparative disparity, so that the figures of 40.01% for
African-Americans and 72.98% for Hispanics would form
the basis for this prong. In contrast, the government argues
that we should do as the District Court did, and determine
whether this second prong has been fulfilled by examining
whether the absolute disparity figures of 1.23% for African-
Americans and .71% for Hispanics, establish the requisite
underrepresentation. Our precedent does not dictate that
one method of statistical analysis should be used rather
than another,11 and, in fact, both methods have been
_________________________________________________________________

10. In Duren, the Supreme Court decided the second prong based solely
on statistical evidence: "The second prong of the prima facie case was
established by petitioner's statistical 

. In
its analysis of the third prong, the Court discussed the length of time of
the study and the nature of the process as they related to whether the
underrepresentation was inherent in the system itself: "[Duren's]
undisputed demonstration that a large discrepancy occurred not just
occasionally but in every weekly venire for a period of nearly a year
manifestly indicates that the cause of the underrepresentation was
systematic . . . ," 

and "Petitioner demonstrated that the
underrepresentation of women in the final pool of prospective jurors was
due to the operation of Missouri's exemption criteria . . . ," 

11. In Ramseur, we did not specify which type of statistical analysis is
preferable in these type of cases: "Thus, both the absolute and
comparative disparity analyses present results at the margin of the range
found acceptable by the 

. Because we did note
the results of both calculations, Ramseur supports our determination
that we should consider both absolute and comparative disparity,
instead of just choosing one over the other.

                               13
criticized. See, e.g., Thomas v. Borg, 

, 1150
(9th Cir. 1998) (stating that "the comparative disparity test
is strongly disfavored in the Ninth Circuit on the ground
that it exaggerates the effect of any deviation."); United
States v. Shinault, 

, 1273 (10th Cir. 1998)
(pointing out that with absolute disparity, total exclusion of
group comprising small percentage of population would
result in figure appearing insignificant).

The comparative disparity method has drawn a great deal
of criticism in situations like the one before us, that is,
where a small population is subjected to scrutiny. See
Smith v. Yeager, 

, 279 n.18 (3d Cir. 1972)
("[T]he comparative [disparity] approach reaches absurd
results . . . where the [African-American] population at the
time was 4.4% of the total, and the [African-American] jury
participation ranged as low as 2% of the jury list). Courts
considering this analysis have said that while "these
numbers may be more indicative of a Sixth Amendment
violation, they . . . are distorted by the small population of
the different minority groups." 

.
It has been argued that "a small variation in the figures
used to calculate comparative disparity can produce a
significant difference in the result, and . . . . there is reason
to doubt the accuracy of the figures . . . ." United States v.
Pion, 

, 23 (1st Cir. 1994); see also United States
v. Sanchez-Lopez, 

, 548 (9th Cir. 1989) ("A
comparative analysis is disfavored because it exaggerates
the effect of any deviation."); United States v. Hafen, 

, 24 (1st Cir. 1984) ("[T]he comparative disparity
calculation might be a useful supplement to the absolute
disparity calculation, . . . [but] the smaller the group is, the
more the comparative disparity figure distorts the
proportional representation."); United States v. Whitley, 

, 1249 (8th Cir. 1974) (stating that comparative
disparity calculation "is ordinarily inappropriate" where a
very small proportion of the population is involved and
opining that it "distorts reality"). When comparative
disparity has been used, it has been emphasized that the
significance of the figure is directly proportional to the size
of the group relative to the general population, and thus is
most useful when dealing with a group that comprises a
large percentage of the population. See, e.g. , LaRoche v.

                               14
Perrin, 

, 502-03 (1st Cir. 1983) (finding that
prima facie violation established where comparative
disparity was 68.22% and group comprised 68.4% of
population), overruled on other grounds by Barber v. Ponte,

, 996 (1st Cir. 1985) (en banc).

Although absolute disparity, which was the method
employed in Duren, seems to be the preferred method of
analysis in most cases, see, e.g., 

("Absolute disparity . . . is the starting place for all other
modes of comparison."), it also has its share of critics.
Some courts have found that the absolute disparity
calculation "understates the systematic representative
deficiencies" in cases such as the one before us, where,
unlike in Duren, the groups at issue comprise small
percentages of the general population. Id.; see also 

"even the complete exclusion of the groups
would result in absolute disparities of less than 6%");

("[I]n this case, even if African-
Americans [who comprised 1.87% of population] were
excluded entirely from the lists of potential jurors, the
maximum disparity, under an absolute calculation, would
be 1.87%."). Because we think that figures from both
methods inform the degree of underrepresentation, we will
examine and consider the results of both in order to obtain
the most accurate picture possible.

Looking first at the comparative disparity figures, we find
that they are quite high -- 40.01% and 72.98%-- but that
because African-Americans and Hispanics comprise such a
small percentage of the population, the results of this
analysis are of questionable probative value.12 See United
States v. Chanthadara, 

, 1257 (10th Cir.
2000) (finding that where African-Americans accounted for
_________________________________________________________________

12. When determining if "substantial underrepresentation" had been
established as required to make out a prima facie claim under the Equal
Protection clause, we stated in Ramseur that a 40% comparative
disparity was only 

. Though an Equal
Protection challenge differs from a fair cross section claim, the
reasoning
of Ramseur suggests that, with respect to the comparative disparity for
African-Americans, 40.1% would not necessarily weigh in Weaver's favor,
considering that the figure is comparable to Ramseur's "borderline"
figure of 40%.

                               15
7.9% of population, and Hispanics, 2.74%, comparative
disparities of 40.89% and 58.39%, respectively, did not
establish prima facie violation); United States v. Clifford,

, 155 (8th Cir. 1981) (holding that where
Indians comprised 15.6% of population, 46% comparative
disparity was insufficient underrepresentation to make out
fair cross section claim).

The absolute disparity figures are much lower -- 1.23%
for African-Americans and .71% for Hispanics. These
percentages are well below those that have previously been
found insufficient to establish unfair and unreasonable
representation.13 See Thomas , 159 F.3d at 1151 (finding
that where African-Americans comprised 5.135% of
population, and there were no African-Americans on jury
panel, absolute disparity of approximately 5% was
insufficient to make out fair cross section claim); 

(relying on absolute disparity figure of 3.4% in
finding that underrepresentation was "relatively small" for
Hispanics representing 4.2% of the general population);
United States v. Suttiswad, 

, 649 (9th Cir.
1982) (finding that where African-Americans comprised
9.3% of population, Hispanics, 11.7% and Asians, 8.3%,
absolute disparities of 2.8%, 7.7%, and 4.7%, respectively,
were insubstantial); United States v. Armstrong , 

, 955-56 (9th Cir. 1980) (determining that absolute
disparity of 2.83% for African-Americans comprising 4.2%
of population was not sufficient). Accordingly, the results of
this analysis fail to support this element of Weaver's prima
facie case.

Moreover, there is a fundamental weakness in the figures
relied upon by Beveridge in his statistical presentation
regarding the percentages on the "master wheel" -- a flaw
that went unaddressed by both the parties and the District
Court. As noted previously, despite his testimony, Beveridge
did not actually analyze the entire 1999 master wheel.
Instead, he examined and based his testimony on the
returned questionnaires. For the 1999 wheel, 5,877
_________________________________________________________________

13. Like with comparative disparity, Ramseur found a 14.1% absolute
disparity calculation in the Equal Protection context to be 

.

                               16
questionnaires were mailed. App. at 125. Yet only 4,753 of
those were completed and returned. 

not
attempt to account for those not returned, yet consistently
testified that he had examined the entire composition of the
master wheel. We find that this discrepancy in Beveridge's
statistical presentation further undermines the strength of
the evidence. In order to support Weaver's allegation of
underrepresentation on the master wheel, Beveridge would
have had to either analyze the races of all 5,877 jurors on
the master wheel (as he claimed to have done), perform
sampling of the master wheel14 and then calculate the
standard deviation,15 or, alternatively, account for the
statistical impact of the unreturned questionnaires.
Weaver's statistical evidence is, therefore, far too weak to
support a finding of representation that is unfair and
unreasonable.

3. Third Prong -- Systematic Exclusion

While we need not reach the third prong, it merits our
attention because the District Court placed some degree of
reliance on this aspect. The third prong of Duren requires
that the defendant show that the underrepresentation of
the cognizable group is due to systematic exclusion in the
jury selection 

. In Duren, the
Supreme Court held that women were systematically
excluded where the underrepresentation of women on jury
lists resulted from their self-exclusion under a state law
exemption privilege. 

The Court stated that "[t]he
resulting disproportionate and consistent exclusion of
women from the jury wheel and at the venire stage was
quite obviously due to the system by which juries were
selected." 

we found no Sixth Amendment
_________________________________________________________________

14. Weaver did present studies based on samples of the 1995, 1997, and
1999 wheels, but he did not base his appeal on this evidence, choosing
instead to argue that the evidence based on the entire 1999 wheel was
much more persuasive. Thus, we will not address Beveridge's studies
based on samples from 1995, 1997 or 1999, restricting our focus to the
statistical evidence based on all the returned questionnaires from 1999.

15. As noted previously, Beveridge stated that standard deviation was
unnecessary because he claimed to have done a complete statistical
analysis of the 1999 master wheel.

                               17
violation where the jury selection process was neutral on its
face and was being monitored, and modified, to try to
enhance its representative 

.

Here, the government contends, and the District Court
agreed, that where substantial representation is traceable
solely to the exclusive reliance on voter registration lists,
and the underrepresented group has freely excluded itself
quite apart from the system itself, the third prong has not
been fulfilled. The government emphasizes that Weaver has
shown "no evidence of any interference with the
opportunity . . . to vote." Appellant Br. at 27. In other
words, there has been no showing of anything in the
system that has discouraged or prevented a group from
participating.

We must be careful to note that intentional
discrimination need not to be shown to prove a Sixth
Amendment fair cross section claim. 

n. 26. Under Duren, "systematic exclusion" can be
shown by a large discrepancy repeated over time such that
the system must be said to bring about the
underrepresentation: "[Here, petitioner's] undisputed
demonstration that a large discrepancy occurred not just
occasionally but in every weekly venire for a period of
nearly a year manifestly indicates that the cause of the
underrepresentation was systematic -- that is, inherent in
the particular jury-selection process utilized." 

Thus, while we need not determine the limits of"systematic
exclusion" for our purposes, we note that if the use of voter
registration lists over time did have the effect of sizeably
underrepresenting a particular class or group on the jury
venire, then under some circumstances, "this could
constitute a violation of a defendant's `fair cross-section'
rights under the [S]ixth [A]mendment." 

n.4; see also 

("A large
discrepancy occurring over a sustained period of time
where there is an opportunity for arbitrary selection is
sufficient to demonstrate that the exclusion of the
underrepresentation is systematic -- that is, inherent in the
particular jury selection process utilized."). However, we see
nothing in the record before us that is demonstrative of any
such persistent "systematic exclusion" of Blacks and
Hispanics.

                               18
Due to Weaver's failure to present sufficient evidence to
satisfy the requirements of the prima facie case set forth in
Duren, we will affirm the District Court's denial of Weaver's
fair cross section challenge to Erie's jury selection process.

B. Remaining Issues

1. Failure to Grant a Mistrial Based on Non-Production
       of Bank Teller's Written Descriptions

Weaver also claims that the government violated the
Jencks Act, 18 U.S.C. S 3500. The Jencks Act requires that
the government disclose prior recorded statements of its
witnesses that are "related" to the subject matter of their
testimony. 

3500(b); United States v. Hill, 

, 139 (3d Cir. 1992). Such disclosures must be made
after each witness testifies on direct 

.

At trial, several witnesses, including bank tellers, offered
evidence as to Weaver's identity, and as we noted, one of
the tellers, Ms. Landon, specifically recalled Weaver from
his having opened an account at the bank five months
before the robbery. Weaver contends that the Jencks Act
was violated because, after direct examination of the
various tellers, Weaver's counsel requested copies of written
reports prepared by each of them describing the robber.
The government was unable to produce any such reports.
Therefore, Weaver urges that he was entitled to a mistrial.
We review the District Court's denial of defendant's motion
for a mistrial for abuse of discretion. 

conceded that it is bank policy for tellers to write
a description of a robber immediately following the robbery.
Indeed, shortly after the robbery, each of the three tellers
did so and there was some evidence that they left them at
the scene or gave them to some unidentified law
enforcement officials who arrived on the scene. None of the
tellers, however, could remember to whom they gave the
descriptions and thus the District Court concluded that
there was no evidence that the written descriptions were
ever in the custody of federal law enforcement officials.16
_________________________________________________________________

16. Although each teller testified on cross-examination that she wrote
such a statement immediately after the robbery occurred, none of the

                               19
Because the Jencks Act only applies to evidence in the
possession of the United States, and not state authorities,
see 18 U.S.C. S 3500(b) ("in the possession of the United
States"); United States v. Bermudez, 

, 100 n.9
(2d Cir. 1975); United States v. Smith, 

, 1269
(5th Cir. 1970); Beavers v. United States, 

,
509 (9th Cir. 1965), we conclude there was no showing of
a Jencks Act violation.

2. Notice of Intent to Seek Life Imprisonment Under
       the Provisions of Title 18 U.S. Code 3559 (c)(1)

Pursuant to 18 U.S.C. S 3559(c)(1)(A)(i),"a person who is
convicted in a court of the United States of a serious violent
felony shall be sentenced to life imprisonment if the person
has been convicted . . . on separate prior occasions in a
court of the United States or of a State of 2 or more serious
violent felonies." 

routinely referred to as the
"Three Strikes" provision. Weaver contends that the
government's February 10, 2000 notice of its intent to seek
a sentence of life imprisonment under this statutory
provision was defective because it failed to properly inform
him of the nature of the prior convictions relied upon, and
thus provided him inadequate notice. The sufficiency of
such notice is a question of law that we review de novo.
United States v. King, 

, 487 (6th Cir. 1997).

Notice of intent to seek life imprisonment under the
provisions of 18 U.S.C. 3559(c)(1) requires notice under 21
U.S.C. S 851, which states:

       (a)(1) No person who stands convicted of an offense
       under this part shall be sentenced to increased
       punishment by reason of one or more prior convictions,
       unless before trial, or before entry of a plea of guilty,
_________________________________________________________________

tellers could recall to whom she gave the written description. App. at
486-88, 525-26, 560-61. Teller Landon testified that she did not recall if
she had given her written description form to law enforcement personnel,
stating that "[p]erhaps they took it, I don't remember who got the form."
Agent Curtis and Officer Emrick both testified that they did not see any
written statements by the tellers, App. at 535-36, 691, 698, and neither
the Erie Police Department nor the bank had any written descriptions of
the robber by the tellers, App. at 567, 683, 868.

                               20
       the United States attorney files an information with the
       court (and serves a copy of such information on the
       person or counsel for the person) stating in writing the
       previous convictions to be relied upon. . . . Clerical
       mistakes in the information may be amended at any
       time prior to the pronouncement of sentence.

       (c)(1) If the person denies any allegation of the
       information of prior conviction, or claims that any
       conviction alleged is invalid, he shall file a written
       response to the information. . . . The failure of the
       United States attorney to include in the information
       the complete criminal record of the person or any facts
       in addition to the convictions to be relied upon shall
       not constitute grounds for invalidating the notice given
       in the information required by subsection (a)(1) of this
       section.

21 U.S.C. S 851. The requirements set out inS 851 are
mandatory and a district court may not impose an
enhanced sentence unless the defendant has been notified
of the "strikes" in compliance with these provisions. United
States v. Olson, 

, 853 (11th Cir. 1983). The
government gave notice to Weaver of its intent to rely upon
three prior convictions: a "July 3, 1975 conviction for
involuntary manslaughter," a "November 21, 1977
conviction for armed robbery," and a "June 19, 1989
conviction for armed robbery." It later amended the notice
in certain respects, as we will discuss below. Weaver
contends that the government's notice was flawed in three
ways.

First, one of the previous convictions set forth in the
notice sent to Weaver contained an error, in that it
indicated that his July 3, 1975 conviction was for
"involuntary manslaughter," when it was actually for
"voluntary manslaughter." Second, the original notice sent
to Weaver indicated that one of the prior convictions that
the government would rely upon was his November 21,
1977 conviction for armed robbery. In fact, there was no
crime in Pennsylvania entitled "armed robbery" in 1977.
Rather, on November 21, 1977, Weaver was found guilty of
two separate robberies that were consolidated for trial and,
with respect to one of the two robbery convictions, the jury

                               21
also convicted Weaver of using a "prohibited offensive
weapon."

Finally, the reference to Weaver's third conviction
improperly referred to an armed robbery conviction on
June 19, 1989. Weaver was originally convicted on June 19,
1989, but the conviction was not for armed robbery.
Instead, Weaver had been convicted of two separate charges
of robbery and criminal conspiracy relating to the robbery
of two banks on the same day, and both convictions were
later vacated and re-entered on July 2, 1997.

We have not had occasion to specifically address the
sufficiency of notice under S 851. However, we are guided
by rulings of our sister courts of appeals in assessing the
adequacy of a S 851 information. While continually
emphasizing the need for strict compliance with
S 851(a)(1)'s filing and service requirements, e.g., Harris v.
United States, 

, 1307 (11th Cir. 1998)
("[E]ven where a defendant receives actual notice that the
government intends to rely on a previous conviction to
enhance his sentence, the district court lacks jurisdiction
to impose an enhanced sentence until the government files
an information as required under S 851."), those courts
requiring strict compliance have drawn a distinction
between the strict procedural requirements regarding the
giving of notice, such as service and filing, which are
explicit in the statute, and the precise information that
must be included in an information, which the statute does
not specify. Courts have often found that the statute
permits more flexibility with respect to the latter. E.g.,
United States v. Hamilton, 

, 1168-69 (9th Cir.
2000) (finding that though the Ninth Circuit requires strict
compliance with "the procedural aspects of section 851(b),
. . . an apparent typographical mistake in a section 851(a)
sentencing information that otherwise satisfies due process
notice requirements does not render the information
invalid."); United States v. Lawuary, 

, 376 (7th
Cir. 2000) ("The statute itself . . . does not specify the form
the filing must take, and we have . . . been flexible with
regard to what the government must do in order to comply
with section 851.").

                                22
Rather than focusing on exactly what information the
government must provide in a S 851(a)(1) information,
courts have instead analyzed whether the purpose of
S 851(a)(1) -- providing a defendant with sufficient notice to
comply with due process -- has been satisfied. Accordingly,
"[o]ur inquiry must be whether the information which was
filed provided [the defendant] reasonable notice of the
government's intent to rely on a particular conviction and a
meaningful opportunity to be heard," Perez v. United States,

, 1266 (11th Cir. 2001), and we must be
careful not to "elevat[e] form over substance" in doing so.

. Hence, the question is whether any
of the government's errors rendered the notice
constitutionally lacking. United States v. Steen , 

, 1027 (5th Cir. 1995) ("[A] district court may enhance
a defendant's sentence, as long as the government provides
constitutionally sufficient notice of the previous convictions
through an information filed prior to trial."). We note, also,
that S 851(a)(1) specifically provides that"[c]lerical mistakes
in the information may be amended at any time prior to the
pronouncement of sentence." We will address each of the
claimed errors.

(a) Voluntary Manslaughter

Weaver contends that the notice wrongly indicated he
had been previously convicted of involuntary manslaughter.
More than two weeks before sentencing, the government
filed an amended notice, correcting the error by listing
Weaver's July 3, 1975 conviction as being for voluntary
manslaughter. The District Court determined that this error
was a clerical mistake that could be amended pursuant to
the plain language of the statute.

We agree with the District Court that the government's
error in listing Weaver's past crime as being for
"involuntary manslaughter," when it was actually for
"voluntary manslaughter," was a clerical mistake and
therefore capable of being corrected by amendment under
S 851(a)(1). See 

(determining that
incorrect date of prior conviction included in information is
clerical mistake as referenced in S 851(a)(1)). Although
Section 851 does not define "clerical error," we conclude
that the weight of authority discussing clerical errors in

                               23
other contexts indicates that the government's error
qualifies as such. See Fed. R. Civ. P. 60(a) ("Clerical
mistakes in judgments, orders or other parts of the record
and errors therein arising from oversight or omission may
be corrected . . . ."); Fed. R. Crim. P. 36 ("Clerical mistakes
in judgments, orders or other parts of the record and errors
in the record arising from oversight or omission may be
corrected . . . .") (emphasis added); see also American
Trucking Ass'ns v. Frisco Transp. Co., 

, 145
(1958) ("It is axiomatic that courts have the power and the
duty to correct judgments which contain clerical errors or
judgments which have issued due to inadvertence or
mistake."); Jones v. Anderson-Tully Co., 

, 212
(5th Cir. 1984) (holding that clerical errors "must be in the
nature of recitation" and "not errors of substantive
judgment"). Because the government's amended
information complied with S 851(a)(1)'s requirements for the
amendment of clerical errors, we affirm the District Court's
holding that the government listing Weaver's offense as
"involuntary manslaughter" instead of "voluntary
manslaughter" did not render the S 851 notice inadequate.

(b) November 21, 1977 Conviction for Armed Robbery

With regard to the listing of Weaver's November 21, 1977
conviction as being for armed robbery, the District Court
correctly noted that Pennsylvania did not have an offense
titled "armed robbery" in 1977. Weaver was actually
convicted of two counts of robbery, one of which involved a
"prohibited offensive weapon."

First, Weaver argues that because the government's
original notice stated that it was relying on a conviction on
November 21, 1977 (singular), instead of on two convictions
(plural), the notice did not comply with S 851(a)(1).
However, the government did in fact correct this error in
the amended notice, changing a single conviction for armed
robbery on November 21, 1977 to a "November 21, 1977
conviction for robbery" and a "November 21, 1977
conviction for armed robbery." App. at 948. We agree with
the District Court that this mistake can be classified as
clerical, and due to the fact that the amended notice
accurately reflected that the government was relying on two

                               24
robbery convictions, rather than one, Weaver's argument is
unpersuasive.

Weaver's second contention is that he was prejudiced by
the incorrect notice17 because he could not identify upon
which of the two 1977 robbery convictions the government
was relying. He bases this argument on the fact that under
S 3559(c)(3), a robbery conviction can not constitute one of
his "strikes" for sentencing purposes if a defendant
"establishes by clear and convincing evidence that (i) no
firearm or other dangerous weapon was used in the offense
and no threat of use of a firearm or other dangerous
weapon was involved in the offense; and (ii) the offense did
not result in death or serious bodily injury . . . to any
person." He asserts that if the government had given him
proper notice, he could have attempted to prove that an
offensive weapon was not used in one of the robberies.

We are not swayed by Weaver's argument. We have
already stated that the amended notice clarified that the
government was relying upon both convictions entered on
November 21, 1977. And though the amended notice still
listed "armed robbery," instead of robbery and use of
prohibited weapon, as a relied-upon conviction, given that
the government listed the correct date on the amended
notice and attached copies of his certified convictions, we
cannot see how Weaver's supposed confusion renders the
notice insufficient. Weaver was alerted to the convictions
_________________________________________________________________

17. We agree with Weaver that a S 851(a) violation is not subject to
harmless error analysis. See United States v. Olson, 

, 852
(11th Cir. 1983) (holding that if government fails to provide notice, it
cannot seek enhancement; there is no room to argue that error was
harmless). But that is not the aim of our prejudice inquiry. Rather, as
discussed earlier, we are asking whether Weaver was prejudiced in order
to determine whether he was given adequate notice, as required by due
process, of the previous convictions upon which the government would
rely. See 

(emphasis added) ("[A] district court
may enhance a defendant's sentence, as long as the government provides
constitutionally sufficient notice of the previous convictions through an
information filed prior to trial."); United States v. Belanger, 

,
419 (7th Cir. 1992) ("Section 851 does not specify the particular form
which notice of enhancement must take and the government's filings
provided Belanger reasonable notice and an opportunity to be heard.").

                                25
the government would rely on as strikes, and he had the
ability to challenge the use of both robbery convictions. He
could have argued that a weapon was not used in one of
his robberies, thereby attempting to avail himself of
S 3559(c)(3)'s exception. He did not do so, and we do not
believe that technical errors such as the ones here give him
the opportunity to revisit the issue on remand.

In addition, prior to his trial, Weaver filed two in limine
motions to exclude his prior convictions for bank robbery,
armed robbery and manslaughter. Hence, the pretrial
proceedings clearly indicate that he was well aware of the
prior convictions that the government was relying upon,
further weakening his claim that he lacked sufficient
information to put him on notice. See United States v.
Mack, 

, 231-32 (3d Cir. 2000) (considering
actual notice as indicative of constitutionally adequate
notice in context of different statute).

Some element of confusion or lack of specificity has not
rendered notices deficient in previous cases. E.g., United
States v. Gonzalez-Lerma, 

, 1485 (10th Cir.
1994) (upholding information with no prior case number,
date or specific place of conviction); United States v.
Campbell, 

, 251 (4th Cir. 1992) (upholding
enhancement despite error in statutory section of previous
conviction). Thus, we hold that the government's
information regarding Weaver's November 21, 1977
conviction was sufficient to "signal[ ] the government's
intention to rely upon a particular prior conviction."

.

(c) 1989 Armed Robbery Conviction

Finally, Weaver contends that because his convictions for
armed robbery and criminal conspiracy on June 19, 1989
were later vacated, the government listed nullified
convictions. However, the convictions were vacated July 2,
1997 and were re-entered, after a guilty plea, under the
same criminal docket number on July 2, 1997. Hence, the
only error is listing the wrong date of conviction. We
classify this as nothing more than a clerical mistake that,
like the other errors we have addressed, was corrected in
the amended notice. Thus, we apply the same reasoning,
and find that this mistake does not entitle Weaver to relief.

                                26
Weaver also argues that the notice was inadequate
because he was not convicted of armed robbery on that
date, but rather of two separate charges -- robbery and
criminal conspiracy -- relating to the robbery of two banks
on the same day. Here, our analysis is the same as it was
with the second mistake regarding the armed robbery
convictions, that is, we are persuaded that the
government's information was sufficient to "signal[ ] the
government's intention to rely upon a particular prior
conviction." 

. Thus, we
find that Weaver received adequate notice that the
government would rely on his July 2, 1997 robbery
conviction.

Therefore, we find that the notice was sufficiently
complete to provide Weaver with satisfactory notice under
the statute, and that the District Court was correct in not
permitting Weaver, in effect, to take advantage of technical
or clerical errors in the notice provided. Therefore, we hold
that the District Court did not err in finding Weaver
received adequate notice as per 18 U.S.C. S 851.

3. Increasing Sentence Based on Prior Convictions Not
       Charged in Indictment nor Proven to the Jury
       Beyond a Reasonable Doubt

Weaver contends that the failure to include his prior
convictions for serious violent felonies in the indictment
and to charge the jury that it must find beyond a
reasonable doubt that Weaver committed those prior
offenses violated his right to due process or trial by jury.
Our review of this issue is plenary. 

("This Court reviews de novo Mack's assertion that his due
process rights were violated.").

In Almendarez-Torres v. United States, 

(1998), the Supreme Court addressed this precise issue.
There, the Court decided that no due process violation
occurs when prior convictions are used to increase a
statutory maximum without being charged in an indictment
and proved to a jury beyond a reasonable doubt. 

41. Recently, in Apprendi v. New Jersey, 

(2000), the Court upheld the validity of Almendarez-Torres,
singling out "the fact of a prior conviction" as the exception

                               27
to the rule that "any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt." 

Despite speculation about the future of Almendarez-
Torres,18 we heed the words of the Supreme Court in
Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 

, 484 (1989): "If a precedent of this Court has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
decisions." Nor do we find, as Weaver argues, that the
"Three Strikes" requirement of a mandatory minimum
sentence is distinguishable, for due process purposes, from
the increased permissive maximum penalty discussed in
Almendarez-Torres. Both have the effect of increasing the
_________________________________________________________________

18. We note Chief Judge Becker's concurrence in Mack, which
highlighted the shaky ground on which Almendarez-Torres stands:

         [T]he Apprendi majority went out of its way to cast the future
         viability of Almendarez-Torres into question. See 

("Even
         though it is arguable that Almendarez-Torres was incorrectly
         decided, and that a logical application of our reasoning today
should
       apply if the recidivist issue were contested, Apprendi does not
       contest the decision's validity and we need not revisit it for
purposes
       of our decision today to treat the case as a narrow exception to
the
       general rule we recalled at the outset."). Moreover, as
commentators
       have noted, five sitting Justices are now on record as saying that
       Almendarez-Torres was wrongly decided. See 

(Thomas, J., concurring); 

,
       

(Scalia, J., joined by Stevens, Souter, and
Ginsburg,
       dissenting). I do not suggest that we should predict that the Court
       will overturn Almendarez-Torres. Cf. State Oil Co. v. Khan, 

, 20, 

, 

(1997) ("Despite what Chief
       Judge Posner aptly described as Albrecht's `infirmities, [and] its
       increasingly wobbly, moth-eaten foundations,' there remains the
       question whether Albrecht deserves continuing respect under the
       doctrine of stare decisis. The Court of Appeals was correct in
       applying that principle despite disagreement with Albrecht, for it
is
       this Court's prerogative alone to overrule one of its precedents.")
       (emphasis added) (citation omitted). But the apprehension remains.

n.5.

                               28
sentence, based on findings not charged or made by the
jury, beyond what would otherwise be the statutory
maximum. Therefore, we find that the District Court
properly rejected Weaver's claim that the failure to include
his prior convictions for serious violent felonies in the
indictment, and to charge the jury that it must find beyond
a reasonable doubt that Weaver committed those prior
offenses, violated his right to due process or trial by jury.

CONCLUSION

For all the foregoing reasons, we will AFFIRM the District
Court's Judgment and Conviction Order.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                29