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UNITED STATES v. ORTIZ

August 17, 1995

UNITED STATES OF AMERICA
v.
CRISPITED ORTIZ, et al.



The opinion of the court was delivered by: HARVEY BARTLE, III

 Bartle, J.

 This criminal action involves over 20 defendants alleged to have committed various drug offenses. Defendant Hector Medina together with other defendants has filed a motion to dismiss the indictment pursuant to Rules 6(b) and 12(b) of the Federal Rules of Criminal Procedure. *fn1" They contend that the selection procedures for grand juries in the Eastern District of Pennsylvania and specifically the grand jury which returned the indictment in this case did not represent a fair cross section of the community. Specifically, defendants argue that Hispanics were underrepresented. The court held a hearing on this issue on July 11 and 21, 1995.

 The United States District Court for the Eastern District of Pennsylvania, at the time in question, obtained the names of potential grand jurors for the master wheel from the voter registration lists for the ten counties *fn2" that comprise the district. The percentage of the names selected from each county was the same as the percentage of the district's registered voters that reside in each county. Thus, if a county had 10% of the registered voters in the district, 10% of the potential jurors on the master wheel came from that county. The grand juries being challenged involve the 1993 master jury wheel used from approximately the summer of 1993 to the present. By order of then Chief Judge Louis Bechtle, 104,726 voters were placed in the master jury wheel. They were chosen at random and proportionally from each of the ten counties by means of a computer. The master wheel was then further broken down randomly by computer into four wheels (wheels 1, 2, 3, and 4) of approximately 26,000 persons each. These wheels were used in numerical order, with persons on wheel 1 being sent jury questionnaires in May, 1993 and persons on the other wheels being sent the jury questionnaires at a later time. Second and third mailings were made to persons who did not return the questionnaire on the previous request. If a question was left unanswered on the returned questionnaire, it was sent back with an instruction to fill in the missing information. Finally, the clerk's office reviewed the completed forms to determine whether a person should be disqualified, exempt, or excused from jury duty. For example, persons who were not citizens, who could not read, write, and speak English, who were under 18 years old, who had certain types of physical or mental disabilities, or who were felons were disqualified. Those not disqualified, exempt, or excused comprised what was known as the qualified jury wheel and were subject to call as jurors.

 During the relevant period, two different forms were used. Both forms asked a person's race. The difference in the forms related to the placement of the question on ethnicity. On the first form, the question "Are you Hispanic?" was placed within the same box as a question asking for the prospective juror's race. If a person did not answer the Hispanic ethnicity question, the questionnaire was not sent back as incomplete, since presumably the person had checked another box as to race. On the second form, the Hispanic ethnicity question was set forth separately from the race question. Now it was clearer that a person was required to answer both as to race and as to Hispanic ethnicity. Some of the persons on the master list at issue were sent the first type of questionnaire while others on later wheels received the questionnaire with the Hispanic question more clearly separated from the race question. *fn3" Only 22.6% of qualified jurors who returned the old form answered the question "Are you Hispanic?" versus 79.8% of qualified jurors who returned the new form.

 According to the 1990 United States census, the Hispanic population of the Eastern District of Pennsylvania comprised 2.9% of the total population. However, Hispanics who are United States citizens comprised only 2.59% of the district's total population. *fn4" The defendants' expert on demography, Eugene Ericksen ("Ericksen"), testified that because the Hispanic population grew at a faster rate than the non-Hispanic population between 1980 and 1990, he believed that Hispanics today would constitute 3.2% of the district's total population.

 Ericksen testified that Hispanics comprised 2.13% of the master grand jury list while the government's expert on demography, Samuel Preston ("Preston"), stated that Hispanics made up 2.41% of the master list. Preston also reported that the percentage of Hispanics in the district who were citizens and spoke English well was 2.02%. Ericksen found that Hispanics constituted 1% of the qualified grand jury pool while Preston testified that Hispanics made up 1.28% of the qualified pool. These numbers for the qualified jury pool lead to an absolute disparity *fn5" of 1.6% (2.59% minus 1.0%) according to the defense and 0.74% (2.02% minus 1.28%) according the government. The comparative disparity *fn6" is 61.54% under the defense numbers and 36.63% under the government's numbers.

  Defendants assert that the selection process for the master jury wheel, for the qualified jury wheel, and thus for the grand jurors violated the Fifth Amendment. *fn7" A Fifth Amendment violation is established if: (1) there is a "recognizable, distinct class, singled out for different treatment under the laws;" (2) this group is underrepresented over a significant period of time; and (3) the procedure utilized to select the jurors is "susceptible of abuse or is not racially neutral." *fn8" Castaneda v. Partida, 430 U.S. 482, 494, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977) (citations omitted). *fn9"

 Defendants have not established that the Fifth Amendment was violated. They clearly have not made a showing as to the second element. As the Court of Appeals for the Third Circuit explained in Ramseur v. Beyer, 983 F.2d 1215, 1233 (3d Cir. 1992), cert. denied, 124 L. Ed. 2d 653, 113 S. Ct. 2433 (1993), "studies which have been found to satisfy Castaneda 's requirement of a 'significant period of time' have covered periods substantially longer than the two years covered by this study." Here, defense counsel presented evidence concerning underrepresentation only for a two year time period, from the summer of 1993 until the present. Moreover, no evidence was presented that demonstrated that the method used in this district is susceptible of abuse by court personnel or is not racially neutral. The Court of Appeals has noted that voter registration and department of motor vehicle lists "are constituted using facially neutral criteria and allow no opportunity for subjective or racially motivated judgments." Ramseur, 983 F.2d at 1233 (citation omitted). In fact, defense counsel conceded at the hearing that they were not arguing that intentional discrimination or racially motivated judgments had occurred here.

 Defendants also claim that the jury selection procedure in this district at the relevant time period violated the Sixth Amendment *fn10" of the United States Constitution and the Jury Selection and Service Act of 1968 ("Act"), 28 U.S.C. § 1861 et seq.11 The Sixth Amendment "requires that jurors be drawn from pools that represent a 'fair cross section' of the community." Ramseur, 983 F.2d at 1230. The Act provides that grand juries be "selected at random from a fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. Under the Act, "such plan [for random selection of grand and petit jurors] shall -- specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division." 28 U.S.C. § 1863(b)(2). The voter registration lists are to be supplemented "where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title." *fn12" Id. Thus, supplementation is the exception rather than the rule. United States v. Cecil, 836 F.2d 1431, 1451 (4th Cir. 1988) (quotation omitted), cert. denied, 487 U.S. 1205, 108 S. Ct. 2846, 101 L. Ed. 2d 883 (1988).

 The Sixth Amendment is violated when: (1) there is a "'distinctive' group in the community;" (2) that the representation of the group is "not fair and reasonable in relation to the number of such persons in the community;" and (3) that "this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979). The test for showing underrepresentation under the Act is the same as that for the Sixth Amendment. United States v. Rodriguez, 776 F.2d 1509, 1510 n.1 (11th Cir. 1985) (citation omitted); United States v. Musto, 540 F. Supp. 346, 354 n.1 (D.N.J. 1982) (citation omitted), aff'd sub nom. United States v. Aimone, 715 F.2d 822 (3d Cir. 1983), cert. denied, 468 U.S. 1217, 104 S. Ct. 3586, 82 L. Ed. 2d 883 (1984).

 In order for a valid claim to exist under the Sixth Amendment and under the Act, there must be a "distinctive group" involved. Duren, 439 U.S. at 364; Rodriguez, 776 F.2d at 1510 n.1; Musto, 540 F. Supp. at 354 n.1. Are Hispanics a distinctive group and if so how is an Hispanic defined? Both expert witnesses agreed that Hispanics are not a race. There are both white and black Hispanics. The government's expert Preston testified that since 1970 the principal means of identifying the Hispanic population has been self-identification. Preston explained that Hispanics are not solely of one race, with about 5% of Hispanics classifying themselves as black and the remainder as white. Moreover, Preston reported that the background of Hispanics in this country is quite varied apart from some use of the Spanish language, at least in the past.

 Defendants' expert Ericksen similarly explained that whether or not a person is an Hispanic is not a biological characteristic but a psychological characteristic as to how one identifies himself or herself. It is not simply whether one has some Spanish ancestry or whether one speaks Spanish as a first language. As Ericksen explained, if an Hispanic man married an admittedly non-Hispanic woman and they had children, the children would have to make a decision about whether they would identify themselves as Hispanic. According to Ericksen, factors such as whether the children are living with the father, how they feel about themselves, and the neighborhood where they live would influence whether the children would identify themselves as Hispanic. A person's surname is not a definite indicator. Some last names of persons who may consider themselves Hispanic may not be or may not appear to be of Spanish derivation. Conversely, a woman of admittedly non-Hispanic descent may take her husband's Hispanic surname upon marriage. Suffice it to say that whether a person is Hispanic in the final analysis depends on whether that person considers himself or herself Hispanic.

 The parties have not presented a generally accepted meaning of the term "Hispanic" and the jury questionnaires did not attempt it. Whatever the definition is, it clearly encompasses persons of different races. We need not decide whether Hispanics are or can be a "distinctive group," cognizable under the law, or who is included within the group. Even assuming that Hispanics are a distinctive ...


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