JAMES V. SELNA, District Judge.
Defendant Francisco Rodriguez ("Rodriguez") moves the Court to dismiss the indictment or grant a new trial pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A) and 28 U.S.C. § 1867(a). (Motion, Docket No. 1190.) The United States ("the Government") timely opposed. (Government Opposition, Docket No. 1212.) Alternatively, Rodriguez moves to compel the Clerk of the Court for the United States District Court for the Central District of California ("CDCA"), Terry Nafisi ("the Clerk"), to produce additional discovery relating to the adoption and management of the Central District's Jury Selection Plan. (Motion, Docket No. 1190.) The Clerk timely opposed. (Clerk Opposition, Docket No. 1199.) Rodriguez timely replied. (Reply, Docket No. 1233.) For the following reasons, the Court
This is a criminal prosecution for alleged conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d), and conspiracy to violate the Violent Crimes in Aid of Racketeering Statute ("VICAR"), 18 U.S.C. § 1959(a)(5). The October 2004
Rodriguez first indicated his intent to challenge the petit jury venire orally on August 12, 2011. (Reporter's Transcript (8/12/11), Docket No. 1214, at 23-24.) The Court informed Rodriguez that he must file a written motion and suggested waiting until additional individuals were summoned as jurors the next week. (Id. at 24.) On August 22, 2011, Rodriguez filed his initial motion challenging the petit jury venire. (Motion to Strike Venire, Stay Proceedings, and Order Discovery of Jury Information, Docket No. 1073.) In response, the Government argued, inter alia, that Rodriguez's motion was untimely under 28 U.S.C. § 1867(a).
The Court never addressed the timeliness of the challenge to the grand jury composition. During a hearing on August 26, 2011, the Government noted that "the grand jury was selected in 2004" and "[t]here is no record of anything relating to that prima facie case or otherwise," and asked if the Court is still "leaving that open." (Reporter's Transcript (8/26/11), Docket No. 1088, at 39.) The Court responded, "If we are going to talk about one, we might as well talk about both," and suggested seeking out any available data. (Id.)
Rodriguez moves to dismiss the indictment, for a new trial, or for additional discovery. He argues that by adopting and maintaining a jury selection plan that systematically underrepresents Hispanics on grand and petit juries, the Southern Division has violated his rights under the Jury Selection and Service Act of 1963 ("JSSA"), 28 U.S.C. §§ 1861-78, and the Fifth and Sixth Amendments.
% Citizens % Non-Hispanic White % Hispanic
Year Registered (18 +) Citizens Registered Citizens Registered
2000 65.84% 70.93% 55.00%
2004 68.59% 76.22% 55.38%
2008 68.23% 72.90% 62.83%
2010 60.90% 68.39% 52.01%
Hispanics in General
Year Population (18 +) % Hispanic % Hispanic Citizens
2000 549,509 26.4% 15.54%
(253,565 Persons)9
2010 669,206 29.4%10 N/A
Population % Population Citizens Hispanic % Citizens
Year (18 +) Hispanic — Hispanic (18 +) Citizens — Hispanic
200511 2,144,727 602,199 28.01% 1,706,257 305,465 17.90%
2007 12 2,230,800 640,658 28.72% 1,777,750 326,940 18.39% 2008 2,245,108 654,045 29.13% 1,799,668 345,701 19.21% 2009 2,271,237 671,359 29.56% 1,833,803 379,091 20.67% 2010 2,280,716 673,441 29.53% 1,863,822 391,542 21.01% 2011 2,318,625 693,633 29.92% 1,891,999 404,433 21.38%
According to the Clerk, in Orange County, there were 1,554,792 registered voters in 2009, and 1,589,950 registered voters in 2010. (Terry Nafisi, Memorandum re: Status of Jury Representation Issue, Wilke Decl. Ex. U, at 1.) Thus, 84.79% of eighteen-and-over citizens in Orange County were registered in 2009, and 85.31% of eighteen-and-over citizens were registered in 2010.
The Jury Selection Plan adopted by the Article III judges in CDCA and approved by the Judicial Council of the Ninth Circuit governs the selection of grand and petit jury venires. See 28 U.S.C. § 1863(a); 28 U.S.C. § 132(b). The Clerk does not participate in the decision to approve or reject the Jury Selection Plan. (Clerk Opposition, at 1.) The Jury Selection Plan, in accordance with 28 U.S.C. § 1863(b)(2), requires the Southern Division to use voter registration lists to select the names of prospective jurors. (General Orders 99-08, 07-10, 11-08 § 4, Wilke Decl. Exs. A-C.) The Plan
The Plan instructs the Clerk to send a questionnaire (a juror qualification form) to prospective jurors, whose names are drawn randomly from the voter registration lists. (General Order 11-08 § 8.) The questionnaire asks the prospective juror for her race and ethnicity. (See Sample Juror Questionnaire, Wilke Decl. Ex. P.) Question 10(b) specifically asks if the juror is Hispanic or Latino. (Id.) Any person eighteen-and-over who has resided for at least one year within the district is qualified to serve on a grand or petit jury unless she is unable to read, write, or understand English enough to satisfactorily complete the questionnaire; is unable to speak English; is incapable of performing jury service due to mental or physical infirmity;
To monitor the Plan and ensure jurors are selected from a fair cross section of the community, the Clerk's Office generates a yearly JS12 Race Ethnicity Report that details the racial and ethnic composition of CDCA's jury pools and the juror-eligible population. (Clerk Opposition, at 2-3; see, e.g., JS12 Race Ethnicity Reports, Wilke Decl. Ex. J; JS12 Race Ethnicity Reports, Wagstaffe Decl. Ex. J.) According to the Judicial Conference of the United States, courts should use age-eligible citizen data when generating such reports, not age-eligible general population data. (Report of the Proceedings of the Judicial Conference of the United States — March 13, 2002, Wagstaffe Decl. Ex. A, at 15.) The Administrative Office of the U.S. Courts ("AO") provides this data to the federal districts approximately every ten years in conjunction with the U.S. Census Bureau's reporting of decennial population figures. (Clerk Opposition, at 3; Judge Thomas F. Hogan, Memorandum re: 2010 Population Tables, Wagstaffe Decl. Ex. B, at 1.) The Clerk's Office received the 2010 data in March 2012, after Rodriguez filed this challenge. (See Hogan Memorandum, Wagstaffe Decl. Ex. B; Declaration of Terry Nafisi ("Nafisi Decl.") ¶ 3, Docket No. 1199-1.)
Before October 2011, the JS12 Race Ethnicity Reports issued by the Clerk for 2001-2010 relied on data from the 2000 Census and stated that Hispanics constituted 15.54% of Orange County's "general population." (See JS12 Race Ethnicity Reports, Wilke Decl. Ex. J; Nafisi Decl. ¶ 3.) In this context, "general population" referred to age-eligible citizens. (Nafisi Decl. ¶ 3; Motion, at 5 n. 3.)
After Rodriguez challenged the venire, the Clerk's Office comprehensively reviewed its jury selection procedures and instituted several changes. (Nafisi Decl. ¶ 7.) First, during the review, the Clerk's Office uncovered two errors in how its computer systems calculated the race and ethnicity of the jury pools: 1) multiple counting of deferred jurors, and 2) identifying all individuals who failed to answer the race/ethnicity question in the juror questionnaire as "Non-Hispanic" rather than "Unknown." (Motion, at 10-11; Jury Representation Memorandum, Wilke Decl. Ex. U, at 2; Jury Management Report (Automation Review) — October 14, 2011, Wagstaffe Decl. Ex. I.) Specifically, before October 2011, the Clerk determined the percentage of Hispanics in the jury pool by dividing the total number of persons who answered "yes" to being Hispanic or Latino on the juror questionnaire by the total number of processed questionnaires. (Motion, at 10.) Now, the Clerk determines the percentage by dividing the total number of persons who answer "yes" to being Hispanic or Latino by the total number of persons who respond to the question, thus not including persons who fail to respond in the calculation. (Id.; Jury Representation Memorandum, Wilke Decl. Ex. U, at 3.) Second, the Clerk's office began using the ACS age-eligible citizen data to generate revised JS12 Race Ethnicity Reports for 2007-2011. (See Nafisi Decl. ¶¶ 8; JS12 Race Ethnicity Reports, Wagstaffe Decl. Ex. J.)
The following tables present the parties' proposed disparity calculations. "Absolute
AD Using Citizen (18 +) Data
Year (2000 Census Bureau) CD Using Citizen (18 +) Data
2004 15.54 - 10.99 = 4.55% 4.55/15.54 = 29.28%
2005 15.54 - 10.34 = 5.20% 5.20/15.54 = 33.46%
2007 15.54 - 12.48 = 3.06% 3.06/15.54 = 19.69%
2008 15.54 - 11.52 = 4.02% 4.02/15.54 = 25.87%
2009 15.54 - 12.22 = 3.32% 3.32/15.54 = 21.36%
2010 15.54 - 15.19 (Jan-June) = .35% .35/15.54 = 2.25%
AD Using CD Using AD Using CD Using
General Population General Population Citizen (18 +) Citizen (18 +)
Year (18 +) Data (18 +) Data Data (ACS) Data (ACS)
2004 26.4 (2000 Census) - 15.41/26.4 = 58.37% N/A N/A
10.99 (2004 JS12) =
15.41%
2005 26.4 (2000 Census) - 16.06/26.4 = 60.83% N/A N/A
10.34 (2005 JS12) =
16.06%
2007 28.72 (ACS) - 13.43 15.29/28.72 = 53.24% 18.39 - 13.43 4.96/18.39 =
(2007 Jury Questionnaires)16 = 4.96% 26.97%
= 15.29%
2008 29.13 - 14.19 = 14.94% 14.94/29.13 = 51.29% 19.21 - 14.19 5.02/19.21 =
= 5.02% 26.13%
2009 29.56 - 13.42 = 16.14% 16.14/29.56 = 54.60% 20.67 - 13.42 7.25/20.67 =
= 7.25% 35.07%
2010 29.53 - 16.35 = 13.18% 13.18/29.53 = 44.63% 21.01 - 16.35 4.66/21.01 =
= 4.66% 22.18%
2011 29.92 - 16.61 = 13.31% 13.31/29.92 =45.57% 21.38 - 16.61 4.77/21.38 = =4.77% 22.31%
Absolute Disparity Using Comparative Disparity Using
Year Citizen (18 +) Data (ACS) Citizen (18 +) Data
2004 17.90 - 10.99 (2004 JS12) = 6.91% 17 6.91/17.90 = 38.60%
2005 17.90 - 10.34 (2005 JS12) = 7.56% 7.56/17.90 = 42.23%
2007 18.39 - 17.60 (2007 Processed Questionnaires .79/18.39 = 4.30%
Report) = .79% 18
2008 19.21 - 17.02 = 2.19% 2.19/19.21 = 11.40%
2009 20.67% - 16.02% = 4.65% 4.65/20.67 = 22.50%
2010 21.01% - 19.53% = 1.48% 1.48/21.01 = 7.04%
2011 21.01 (2010 ACS) - 19.70 (2011 PQs) = 1.31% 19 1.31/21.01 = 6.24%
21.38 - 19.70 (2011 PQs) = 1.68% 1.68/21.38 = 7.86%
The Sixth Amendment and the requirements codified in the JSSA, 28 U.S.C. §§ 1861-78, are coextensive and guarantee a criminal defendant the right to have a grand jury and petit jury drawn from a fair cross section of the community.
To establish a prima facie case for a violation of the Sixth Amendment and JSSA fair cross section requirement, the defendant must show:
447 F.3d at 703 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). The defendant is not required to show the selection procedure is susceptible to abuse or not race-neutral, only that the exclusion of his or her group is "systematic." Rodriguez-Lara, 421 F.3d at 940. Once a defendant establishes a prima facie case, the burden shifts to the government to show that a significant state interest is "`manifestly and primarily advanced by those aspects of the jury - selection process ... that result in the disproportionate exclusion of a distinctive group.'" Id. (quoting Duren, 439 U.S. at 367-68, 99 S.Ct. 664).
To establish a violation of the Fifth Amendment right to equal protection, "the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). To establish a prima facie equal protection claim, the defendant must (1) show the group is "`a recognizable, distinct class, singled out for different treatment under the laws ...'"; (2) "`prove the degree of underrepresentation, by comparing the proportion of the group in the total population to the proportion called to serve as... jurors, over a significant period of time'"; and (3) show "`a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.'" Rodriguez-Lara, 421 F.3d at 940 (quoting Castaneda, 430 U.S. at 494, 97 S.Ct. 1272). The Ninth Circuit rejects the proposition that "the mere susceptibility of a selection procedure to abuse, even where accompanied by evidence that a given group is substantially underrepresented on a single venire, establishes a prima facie case of intentional discrimination as a matter of law." Hirst v. Gertzen, 676 F.2d 1252, 1258 (9th Cir.1982). Once a defendant establishes a prima facie case, the burden shifts to the government to rebut the presumption "`by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.'" Rodriguez-Lara, 421 F.3d at 940 (quoting Castaneda, 430 U.S. at 494, 97 S.Ct. 1272).
The Government argues that Rodriguez's JSSA challenge is untimely under 28 U.S.C. § 1867(a). (Government Opposition, at 13-20.) As to the petit jury, the Court sees no reason to reconsider its previous holding that "Rodriguez acted diligently and within the time requirements of Section 1867(a)." (Order, Docket No. 1080, at 7.) Although the Court finds that Rodriguez's JSSA grand jury challenge is
Rodriguez all but admits in his Reply that he never investigated the Southern Division's grand jury practices before August 2011. Instead, he puts the burden of diligence on the Clerk, claiming that he could not have discovered the grounds for his motion earlier (1) from available JS12 Reports because (a) the original reports showed a 4.6% absolute disparity in 2004, (Wilke Decl. Ex. J-5), or (b) the original reports did not detail their methodology and relied on census data for the age-eligible citizen population that was then identified on the reports as the "general population," (Reply at 7-8); and (2) from ACS data publicly available since 2005 because it does not show Hispanic representation in the age-eligible citizen population in 2004, (id. at 9).
The Court finds this is not a credible explanation for why Rodriguez first complained about the 2004 grand jury in August 2011, particularly where the composition of a 2011 petit jury cannot necessarily indicate a deficiency in a grand jury seven years earlier. In United States v. Bearden, 659 F.2d 590, 597-98 (5th Cir. Unit B 1981), the court thought it was doubtful that the defendants had exercised diligence in investigating grand jury selection practices where they began "intensive[ly] investigat[ing]" the practices prior to the indictment, interviewed court employees, and reviewed documents in the clerk's office but did not explain why they did not attempt to question the jury clerk about potential improprieties. Rodriguez apparently undertook no such investigation before 2011, six years after his indictment and two years after the Clerk destroyed the 2004 questionnaires pursuant to the document retention practices.
Rodriguez's claim that he would not have been on notice even if he had previously seen the original JS12 Race Ethnicity Reports is not well-taken. His motion in 2011 was founded on population statistics and his belief that using the voter registration lists alone is improper; it does not even mention the Clerk's data. (See Motion to Strike Venire, Docket No. 1073, at 9-10.) Further, many of his current arguments rest on a disbelief in the credibility of the Clerk's representations and methodology in the original and revised
Hispanics are a distinctive group under the first prong of Duren. Hernandez-Estrada, 704 F.3d at 1020-21. Thus, only the second and third prongs of Duren are disputed. Rodriguez maintains that he does not have to submit data for the ageeligible citizen population to make a prima facie fair cross section or equal protection claim and that the Court should account for prospective jurors who failed to establish their ethnicity by using surnames to identify Hispanic ethnicity. (Reply, at 9, 14). The Government contends that the Court must only consider the age-eligible citizen population data, because it best approximates the percentage of jury-eligible Hispanics in the Southern Division, and disregard prospective jurors who did not establish their ethnicity. (Government Opposition, at 21-27.)
To analyze the second prong of Duren, which typically requires proof in the form of statistical data, the Ninth Circuit only uses the "absolute disparity" test.
The court must then compare the percentage of jury-eligible Hispanics to the percentage of Hispanics in the jury wheel. To determine the percentage of Hispanics in the jury wheel, the district court should "exclude those who did not identify their ethnicity on the questionnaire." Hernandez-Estrada, 704 F.3d at 1020-21 (citing Rodriguez-Lara, 421 F.3d at 944 n. 11.) This approach "avoid[s] distorting the numbers." 421 F.3d at 944 n. 11. In contrast, Rodriguez's approach "unrealistically assume[s] that none of the jurors not reporting their ethnicity," id., and lacking a Spanish surname were Hispanic. The court's "calculations [should] reflect no assumptions about the ethnicity of those not reporting." Id. Therefore, although Rodriguez disagrees and believes his data set is more "refined," the Court must, because the data allows, follow the Clerk's and Government's approach and exclude prospective jurors with unreported ethnicity from the disparity analysis.
As to the petit jury, the proper absolute disparity calculation is the Government's — Table 6. Therefore, Hispanics were underrepresented by 1.68% in 2011. If the Court looked to Rodriguez's jury wheel methodology, Hispanics were underrepresented by 4.77%. As Rodriguez concedes, the data does not demonstrate that Hispanic citizens were constitutionally (or statutorily) underrepresented in the Southern District's petit jury venire in 2010-2011.
As to the grand jury, the precise absolute disparity is unknown because there is no available jury-eligible Hispanic citizens data or revised jury pool composition data for 2004. Rodriguez supports using the 2000 U.S. Census Bureau Hispanic general population data and the original 2004 JS12 Race Ethnicity Report to find a 15.41% absolute disparity, which would be constitutionally significant. See Rodriguez-Lara, 421 F.3d at 944 (finding
The Court finds that Government's proposal "best approximates the percentage of jury-eligible Hispanics in the district" and accordingly adopts it. Torres-Hernandez, 447 F.3d at 704. U.S. Census Bureau data shows that Hispanics constituted 26.4% of Orange County's eighteen-and-over general population in 2000. ACS data shows that the percentage of eighteen-and-over Hispanic citizens in Orange County increased from 17.90% to 21.38% between 2005 and 2011. This is 5% less than the eighteen-and-over general population in 2000, and no evidence suggests that the percentage of Hispanic citizens in Orange County decreased from 2004 to 2005. Hence, it would be inconsistent and contrary to the guidance in Torres-Hernandez to rely on the ACS jury-eligible data to analyze venires post-2004 while simultaneously only using the U.S. Census Bureau's age-eligible data from 2000 for the grand jury challenge. Accordingly, because the absolute disparity in 2004 was at most 6.91% (and recognizing that Hispanics probably comprised less than 17.90% of the jury-eligible population in the Southern Division in 2004), the data does not demonstrate that Hispanics were constitutionally (or statutorily) underrepresented in the grand jury venire in 2004. See Hernandez-Estrada 704 F.3d at 1024-25 (holding that 6.2% absolute disparity between Hispanics in jury pool and jury-eligible citizen population did not clear 7.7% threshold).
Accordingly, the Court
Rodriguez argues that the Castaneda test is met because 1) Hispanics are a distinct class; 2) the statistical disparities he presents demonstrate substantial underrepresentation of Hispanics in the jury wheel; 3) CDCA relies only on registered voter lists despite state-wide evidence that the lists underrepresent Hispanics; and 4) the jury selection procedure is "susceptible of abuse" or "not racially neutral." (Motion, at 23-29; Reply, at 13-18.) The Government counters that Rodriguez fails to show substantial underrepresentation under the Ninth Circuit's standards or any other evidence that the Clerk purposefully concealed data and discriminated against Hispanics. (Government Opposition, at 32-35.)
More importantly, Rodriguez fails to demonstrate that the Southern Division's jury selection procedure is susceptible of abuse or not racially neutral, or any other discriminatory intent on the part of the Clerk. The existence of a subjective selection system for selecting potential grand or petit jurors may, together with other evidence, support a prima facie showing of discriminatory purpose made out by the use of statistics. See Hillery v. Pulley, 563 F.Supp. 1228, 1248 (E.D.Cal. 1983), aff'd 733 F.2d 644 (9th Cir.1984), aff'd sub nom. Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (citing Castaneda, 430 U.S. at 497, 97 S.Ct. 1272; Turner v. Fouche, 396 U.S. 346, 360, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970)). In Castaneda, the Supreme Court held that the petitioner established a prima facie equal protection violation because the selection method, the "key-man" system, allowed jury commissioners to personally select between fifteen and twenty citizens from the community to be members of the jury pool, which made the method "highly subjective" and susceptible of abuse. 430 U.S. at 484, 497, 97 S.Ct. 1272; see Esquivel, 88 F.3d at 727. In Alexander v. Louisiana, 405 U.S. 625, 627, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), jury commissioners compiled a list of names from sources including telephone and city directories, voter registration lists, and lists compiled by the jury commissioners. Questionnaires sent to persons on the list asked about race, and once a questionnaire was returned, the commissioners would attach a card designating, inter alia, the potential juror's race. Id. at 628, 92 S.Ct. 1221. The Supreme Court found that "[t]he racial designation on the questionnaires and information cards provided a clear and easy opportunity for racial discrimination." Id. at 630, 92 S.Ct. 1221.
In Hillery, 563 F.Supp. at 1232, the court found that no black person had served on the county grand jury from 1893-1962. During the seven years before the defendant's indictment, the state judge who picked the grand juries had never selected a black person, although he claimed it was not for discriminatory reasons. Id. at 1233. Statistical analysis indicated a high improbability that something other than discrimination resulted in no black person sitting on a grand jury for those seven years, and the court emphasized "the highly subjective nature of the grand jury selection system." Id. at 1241,
The JSSA requires district courts to supplement the voter registration lists with other sources of names if necessary to achieve a fair cross section of the community. 28 U.S.C. § 1863(b)(2). As in Esquivel, the random selection of the Southern Division's master jury wheel from these lists is objective and wholly distinguishable from the subjective methods, or methods susceptible to subjective judgments, criticized in Castaneda, Alexander, and Hillery. The random selection treats Hispanics the same as Caucasians, blacks, Asians, and other groups. Nor do the Clerk's other actions establish a prima facie case of intentional discrimination that can "be inferred from the totality of relevant circumstances." Hirst, 676 F.2d at 1260. The Clerk's decisions to use ACS instead of Census Bureau data — which the original JS12 Race Ethnicity Reports indicate was age-eligible citizen data — and change the methodology for calculating Hispanic representation in the jury wheel do not demonstrate purposeful concealment. Rather, the decisions comport with the Ninth Circuit's recommendations for jury selection procedures and disparity calculations in Rodriguez-Lara, Torres-Hernandez, and Hernandez-Estrada, and have improved the accuracy and usefulness of the JS12 Race Ethnicity Reports.
Therefore, the Court finds that Rodriguez fails to establish a prima facie case of intentional discrimination based on statistical evidence, the jury selection procedure in the Southern Division, and the totality of the circumstances. Accordingly, the Court
The Court previously concluded that "[t]o the extent any discovery request is predicated on alleged Fifth and Sixth Amendment violations," under Rodriguez-Lara, 421 F.3d at 947, "Rodriguez must show the disparity element prior to receiving discovery on other matters beyond that." (Order Modifying Scope of Discovery, Docket No. 1082, at 13.) The Court has found no actionable Fifth or Sixth Amendment or JSSA claims or statistical evidence of a constitutionally significant absolute disparity, and the evidence does not establish the likelihood of a prima facie case. Therefore, the circumstances do not warrant additional discovery on the fair cross section or equal protection claims. Accord United States v. Cerna, No. CR 08-0730 WHA, 2009 WL 2998930, at *3 (N.D.Cal. Sept. 16, 2009) (citing Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 221, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)) ("It is true that defendants may be permitted to inspect the records of past grand juries in preparation of a constitutional claim, but first they must present some evidence tending to show the existence of the essential elements of their challenge.").
Accordingly, the Court
For the foregoing reasons, the Court
The concept of a trial by one's peers is a key constitutional protection and fundamental to the public's trust in the jury trial system in criminal cases. Thus, the extended analysis which both Rodriguez and the Government have developed over many months is plainly warranted. On the extensive record before the Court, the Court finds that Rodriguez received a trial by his peers at both the grand jury and petit jury stages. He was denied neither his constitutional nor statutory rights.
IT IS SO ORDERED.
The Ninth Circuit has not spoken clearly on whether the failure to comply with § 1867's procedural requirements bars a constitutional challenge to a jury selection procedure. See Paige v. United States, 493 F.2d 22, 23 (9th Cir.1974) (holding that attack on grand and petit jury selection process was time-barred under Jury Selection and Tenure Act of 1968 ("JSTA"), 28 U.S.C. § 1867(a), although defendant argued that use of voter lists discriminates against those groups, making JSTA unconstitutional and § 1867(a) inapplicable). The Government does not claim the constitutional challenges are time-barred, so it is unnecessary to address this question.
