United States v. Rene M. Pion

TORRUELLA, Circuit Judge

(Concurring).

Although I agree with my colleagues on all parts of this well-crafted opinion, with the exception of Part E thereof — and even as to that, I conclude that appellant has failed to raise a cognizable claim before this court — I must express myself separately with respect to the substance of the majority’s reasoning in reaching our common result.

First of all, the court has reached issues and' made pronouncements thereon, which are not properly before us. I am referring to appellant’s allegation that the jury pool from which the petit jury was drawn does not represent a cross-section of the community, thus violating the Sixth Amendment of the Constitution. See, Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

This contention was raised by appellant, after conviction, as part of a supplemental *26motion for a new trial. It therefore clearly fails to comply with the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861-1876, pursuant to which:

In criminal cases, [challenges to the composition of the jury must be raised] before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds [for such a challenge] ...

28 U.S.C. § 1867(a). This statute further establishes that:

The procedures prescribed by this section shall be the exclusive means by which a person accused of a federal crime, ... may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.

28 U.S.C. § 1867(e) (emphasis added).

The government’s apparent lapse in not challenging appellant’s failure to comply with these mandatory requirements, and the district court’s complacency therewith, are irrelevant to determining whether the issue is properly before us. The jury challenge requirements are to be strictly construed and failure to comply precisely with their terms forecloses any challenge to the composition of the jury. United States v. Cooper, 733 F.2d 1360 (10th Cir.1984), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984); United States v. Green, 742 F.2d 609 (11th Cir.1984); United States v. Raineri, 670 F.2d 702 (7th Cir.1982), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982); United States v. Bearden, 659 F.2d 590 (5th Cir.1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1981); United States v. Young, 570 F.2d 152 (6th Cir.1978); United States v. D’Alora, 585 F.2d 16 (1st Cir.1978); Government of Virgin Islands v. Navarro, 513 F.2d 11 (3d Cir.1975), cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 698 (1975); United States v. Fernández, 497 F.2d 730 (9th Cir.1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1423, 43 L.Ed.2d 670 (1974). Any objection to jury composition which is not timely raised is considered waived for all purposes. United States v. Webster, 639 F.2d 174 (4th Cir.1981), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Young, supra; United States v. Grismore, 546 F.2d 844 (10th Cir.1976).

The record shows that appellant failed to raise the jury composition issue in a timely fashion,1 and thus, as a matter of law, he is foreclosed from the right to contend this matter on appeal. We therefore need go no further. Yet we do, and I am thus required to express my disagreement with the majority’s unnecessary dicta regarding the merits of this issue.

As is well known, to establish a prima facie violation of the cross-section requirement, a petitioner must show: (1) that the group alleged to be excluded is a “cognizable” or “distinctive” group in the community; (2) that the representation of this group in veni-res from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the underrepresentation in petitioner’s venire is due to the systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Hernández v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954).

There should be little doubt regarding the cognizability of Hispanics for Sixth Amendment purposes. See Hernández v. Texas, 347 U.S. at 475, 74 S.Ct. at 667; Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985-86, 90 L.Ed. 1181 (1986). Where I part company with my colleagues is in our relative application of the second and third Duren prongs.

In my view, in contrast with the majority, the figures presented by appellant show a statistically significant underrepresentation of Hispanics within the jury venire. According to the 1990 census, 4.2% of the residents within the Eastern Division of the District of Massachusetts, the relevant community, are Hispanics. Yet Hispanics represent only .80% of the venires for that Division. Otherwise stated, although the population composi*27tion is such that one would expect 42 Hispanics to serve on the district court’s jury for every one-thousand citizens called to such duty, in fact only eight Hispanics serve in the venires for every one-thousand citizens called. Appellant further contends that when compared with other identifiable ethnic groups, such as non-minority whites, blacks or American Indians, only Hispanics are disproportionately underrepresented — and the statistics were produced to support this contention.

According to my calculations, if one takes the above figures as correct, Hispanics are underrepresented in the venire by 80.95% as compared to their numbers in the community.2 Duren v. Missouri, supra, 439 U.S. at 364, 99 S.Ct. at 668. Such a disparity is not only statistically significant but also constitutionally cognizable. Id. My method of determining disparity is dubbed the “comparative disparity” standard by my colleagues, ante at 23 n. 5, which they understand should not be used “where [the] allegedly underrepresented group constitutes [a] very small proportion of the total population.” Id. Citing United States v. Hafen, 726 F.2d 21, 23-24 (1st Cir.1984), they promote the so-called “absolute disparity” standard, ante at 23 nn. 5-6, whereby they conclude that the under-representation is only 3.4%,3 a spread which is said to be constitutionally insignificant. Hafen tells us that this system of calculating disparity should be used where the cognizable group is small because if the “comparative disparity” method is used under those circumstances, it will distort “reality.” Hafen, 726 F.2d at 24.

I believe this to be an erroneous conclusion for several reasons. First of all, I find Hafen to run contrary to prior, valid circuit precedent in LaRoche v. Perrin, 718 F.2d 500 (1st Cir.1983), which established the so-called comparative disparity calculation as the circuit standard for determining under-representation. See also Barber v. Ponte, 772 F.2d 982, 989 nn. 11, 12 (1st Cir.1985). Hafen’s attempt to distinguish LaRoche is unconvincing. Secondly, the majority’s approach leaves us without any guide or standard as to when the cognizable group is to be considered too small or large so as to trigger the, switch from one standard to the other. It would appear that applying different constitutional standards to varied groups, depending on whether they are large or small, would not only raise substantial equal protection issues, but would defeat the important goals promoted by the Jury Selection and Service Act and the Sixth Amendment. The minorities most in need of protection are those least entitled to it, to allegedly prevent a “distortion of reality.” I might ask who’s “reality” are we talking about? To my view, the true distortion of “reality” is the failure of a criminal law system, before which is tried a large number of persons from an ethnic group, to include within its mechanisms the peers of those charged, at least in some reasonable measured proportion to their membership in the population. Finally, on its face the so-called “absolute disparity” standard appears to run contrary to Duren, which speaks to “the representation of [the] group in the community ... in relation [i.e., in comparison] to the number of such persons in the community.” Duren, supra, 439 U.S. at 364, 99 S.Ct. at 668. This language seems to speak in comparative, not in absolute, terms,

We thus come to the issue of systematic exclusion. Normally, systematic exclusion requires a showing of substantial disparity in numbers over a sustained period of time, Barber v. Ponte, 772 F.2d 982, 989 (1st Cir.1985), something which has not been established by appellant in this case. I believe, however, that where the disparity established by the claimant reaches the proportion of those in the present case, 80.95%, the burden must be shifted to require the government to justify that such an aberration is not the product of inappropriate conduct. In most cases, such as perhaps the present one, this *28should be a burden easily explainable by the government.

Had appellant complied with the absolute requirements of 28 U.S.C. § 1867, I would have voted for reversal of his conviction. Having failed to do so, however, I concur in the affirmance of his conviction, although as indicated above, I believe that at least part of the majority’s reasoning is flawed.

. There is no allegation that appellant was impeded from doing so for any valid reason, or that the information upon which his claim is based was unavailable.

. This percentage of underrepresentation is measured by calculating the shortfall between the percentage of eligible Hispanic jurors (4.2%) and the percentage appearing for juror orientation (0.8%), i.e., 3.4%, and then dividing the shortfall in Hispanic representation (3.4%) by the percentage of eligible Hispanics (4.2%).

. 4.2% - .8% = 3.4%.