United States v. Orange

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 2, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 05-6105
vs.

KEITH LAMAR ORANGE,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-01-1606-L)

Kerry A. Kelly, Assistant U.S. Attorney (and John C. Richter, U.S. Attorney, on
the briefs), Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Gary S. Peterson, Oklahoma City, Oklahoma, for Defendant - Appellant.

Before KELLY, BRISCOE, and McCONNELL, Circuit Judges.

KELLY, Circuit Judge.

Petitioner-Appellant Keith Lamar Orange, appeals from the district court’s

denial of his 28 U.S.C. § 2255 petition based on claims of ineffective assistance

of counsel. United States v. Orange, 364 F. Supp. 2d 1288 (W.D. Okla. 2005).
On appeal, Mr. Orange argues that his trial counsel was ineffective because he

failed to challenge the jury composition of Mr. Orange’s grand and petit juries,

and did not do any factual investigation. Mr. Orange maintains that this

professionally unreasonable decision prejudiced him because a jury composition

challenge would have succeeded. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

Background

On March 18, 1998, a federal grand jury in the Western District of

Oklahoma indicted Mr. Orange on one count of conspiracy to defraud the United

States in violation of 18 U.S.C. § 286, and five counts of filing and causing a

false claim to be presented to a United States agency, in violation of 18 U.S.C. §

287 & 18 U.S.C. § 2. The case was based on Mr. Orange’s substantial

participation in “an elaborate scheme operated from prison to file fraudulent

income tax returns seeking refunds.” United States v. Orange, No. 99-6009, 2000

WL 757735, at *1 (10th Cir. June 12, 2000) (unpublished). On August 27, 1998,

following a four day trial, a jury convicted Mr. Orange on these counts. The

district court sentenced Mr. Orange to 78 months imprisonment on the conspiracy

count and 60 months imprisonment on the remaining counts, all sentences to run

concurrently. The court also imposed a three year term of supervised release. His

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conviction was upheld on direct appeal, and the Supreme Court denied certiorari.

Orange v. United States, 531 U.S. 939 (2000).

Proceeding pro se, Mr. Orange filed a motion pursuant to 28 U.S.C. § 2255

on October 11, 2001, raising a variety of claims. R. Doc. 294. Pertinent to this

case, Mr. Orange challenged the district’s jury selection process, both facially and

as applied, as violative of his Sixth Amendment right to a fair cross section and

his Fifth Amendment right to equal protection. R. Doc. 294 at 6-10. Mr. Orange

also alleged ineffective assistance of counsel, because of his trial counsel’s

failure to challenge the ethnic composition of Mr. Orange’s jury. R. Doc. 299 at

2. The district court denied relief, R. Doc. 302, finding that Mr. Orange failed to

demonstrate a systematic exclusion of a group or that the district’s use of voter

registration lists as the source for the master jury wheel names was

constitutionally or statutorily unsound. R. Doc. 301 at 4.

Mr. Orange appealed, and this court denied Mr. Orange’s request for a

certificate of appealability (“COA”) on all issues and dismissed the appeal.

United States v. Orange, No. 02-6112, 2002 WL 31341552 (10th Cir. Oct. 18,

2002) (unpublished). In dismissing the appeal, the panel determined that (1) Mr.

Orange failed to make a sufficient showing on either his facial or as-applied

challenges to jury composition and (2) having found that the jury composition

challenges were without merit, counsel was not ineffective for failing to raise

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them. Id. at *3.

On rehearing, a split panel reversed the district court’s ruling on Mr.

Orange’s ineffective assistance of counsel claim as it related to the jury

composition issue. R. Doc. 312 at 4. This court instructed the district court to (1)

determine whether trial counsel’s failure to challenge the jury composition was

strategic, and if not, (2) investigate the merits to determine whether Mr. Orange

can show deficient performance and prejudice sufficient to establish ineffective

assistance of counsel. Id. at 4-5.

The district court appointed counsel and held evidentiary hearings over

several days, wherein it was established that prior to trial, Mr. Orange asked his

counsel, Stan Parsons, to pursue a jury composition challenge. Tr. Vol. 1 1 at 14-

16, 49-50. Mr. Parsons testified that in response to Mr. Orange’s request, he

undertook legal research and, based on that research, concluded a jury

composition challenge was unlikely to succeed. Id. at 16-18. Mr. Parsons visited

with Mr. Orange, shared his research and did not recall Mr. Orange bringing up

the subject again. Id. at 18. Not surprisingly, Mr. Orange remembered the events

differently. He testified that after he brought up the jury composition motion with

1
The hearing transcripts contain a record volume number and a transcript
volume number. For the purposes of this opinion, Tr. Vol. 1 refers to the
transcript dated January 8, 2004, Tr. Vol. 2 refers to the transcript dated February
25, 2004, and Tr. Vol. 3 refers to the transcript dated January 18, 2005.

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Mr. Parsons, Mr. Parsons “never mentioned it again.” Id. at 50. Mr. Orange

testified that he followed up with Mr. Parsons, who told him he “hadn’t got

around to it.” Id. Mr. Orange also claimed he asked Mr. Parsons to object to the

jury composition on the first day of trial and Mr. Parsons responded that it was

too late. Id. at 51. On February 25, 2004, the district court heard testimony about

the practice in the Western District of Oklahoma regarding factual investigation

into jury composition issues and the rarity of such requests.

On January 18, 2005, the district court held a hearing to address the

Western District’s jury selection method and relevant statistical analysis. The

district has four divisions for jury selection purposes, and a jury wheel is

maintained for each of the divisions. Tr. Vol. 3 at 21-22. To create the master

jury wheel, the clerk’s office randomly and publicly selects a starting number.

The master jury wheel contains only names and addresses. Every sixteenth name

thereafter is selected. Id. at 44-45. The clerk’s office sends out juror

questionnaires to the people whose names are drawn in order to create the

qualified jury wheel. Id. at 24-25. 2 Only jurors who return the questionnaires are

included on the qualified jury wheels. Both the master and qualified jury wheels

2
A qualified juror must be a U.S. citizen, at least 18 years of age, be a
district resident for at least one year, be able to read, write and understand
English, be mentally and physically competent, and not have been convicted of a
felony or have charges pending. Id. at 33-34.

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are created on a random basis. Id. at 35-36.

The district court heard expert testimony and received exhibits on the racial

composition of the 1993 and 1997 jury wheels. 3 The 1993 district wide 4 qualified

wheel was comprised as follows:

Distinctive Black Indian Asian Hispanic
Group
Percentage of 7.40 4.21 1.47 3.02
voting age
population
(1990 Census)
Percentage of 4.78 2.66 .67 1.36
qualified
venire
Absolute 2.62 1.55 .80 1.66
Disparity
Comparative 35.41 36.82 54.41 54.97
Disparity

Orange, 364 F. Supp.2d at 1295; Aplt. Br. at 14; Aplee. Br. Addendum at

unnumbered 28. The 1997 qualified wheel for the Oklahoma City division (where

Mr. Orange’s petit jury was selected from) was comprised as follows:

3
The 1997 grand jury that indicted Mr. Orange was randomly drawn from
the 1993 qualified jury wheel. The petit jury that heard Mr. Orange’s 1997 trial
was drawn from the 1997 qualified wheel.
4
Grand jurors are chosen district-wide, not within the individual divisions.

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 Distinctive Black Indian Asian Hispanic
Group
Percentage of 8.63 4.27 1.64 2.74
voting age
population
(1990 census)
Percentage of 5.06 2.64 .80 1.49
qualified
venire
Absolute 3.57 1.63 .84 1.25
Disparity
Comparative 41.37 38.17 51.22 45.62
Disparity

Orange, 364 F.Supp.2d at 1295; Aplt. Br. at 12; Aplee. Br. Addendum at

unnumbered 28. On appeal, these numbers are undisputed.

The district court held that Mr. Orange could not establish any prejudice

resulting from counsel’s performance, and first declined to decide whether that

performance was deficient. Orange, 364 F. Supp. 2d. at 1298. Immediately

thereafter, the district court noted that Mr. Parsons certainly viewed his decision

not to challenge the jury selection procedure as strategic, and then indicated that

such a decision was not deficient performance. Id. This appeal followed.

Discussion

We review the district court’s legal rulings on a § 2255 motion de novo and

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its findings of fact for clear error. United States v. Pearce, 146 F.3d 771, 774

(10th Cir. 1998). A claim for ineffective assistance of counsel presents a mixed

question of fact and law, which we review de novo. Boltz v. Mullin, 415 F.3d

1215, 1221 (10th Cir. 2005).

In order to establish a successful claim for ineffective assistance of

counsel, Mr. Orange must show (1) that counsel’s performance was deficient, and

(2) that this deficient performance prejudiced his defense, depriving him of a fair

trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Here, Mr. Orange claims ineffective assistance, based on counsel’s failure to file

a motion or object based on jury composition. Because Mr. Orange must

demonstrate both Strickland prongs to establish his claim, id. at 692, a failure to

prove either one is dispositive. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000)

(quoting Strickland, 466 U.S. at 697) (“The performance component need not be

addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.’”); see also Romano v. Gibson, 239 F.3d 1156, 1181 (10th

Cir. 2001) (“This court can affirm the denial of habeas relief on whichever

Strickland prong is the easier to resolve.”).

To satisfy the prejudice prong, Mr. Orange must show that there is a

reasonable probability that but for counsel’s alleged errors, the result of the

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proceeding would have been different. Strickland, 466 U.S. at 694; see also

Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Hickman v. Spears,

160 F.3d 1269, 1273 (10th Cir. 1998). When, as here, the basis for the ineffective

assistance claim is the failure to raise an issue, we must look to the merits of the

omitted issue. See Jones v. Gibson, 206 F.3d 946, 959 (2000). If the omitted

issue is without merit, then counsel’s failure to raise it is not prejudicial, and thus

is not ineffective assistance. Id. Assuming, arguendo, that counsel’s performance

was deficient, Mr. Orange cannot establish prejudice because his jury composition

claim would have failed on the merits. 5

As such, we now turn to the merits of Mr. Orange’s jury composition claim.

The district court’s factual determinations relevant to the jury composition claim

are reviewed for clear error and its legal determination of whether a prima facie

violation of the fair cross section requirement has occurred is reviewed de novo.

United States v. Shinault, 147 F.3d 1266, 1271 (10th Cir. 1998). The Sixth

Amendment guarantees a defendant the right to a jury pool consisting of a fair

cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 538 (1975);

United States v. Gault, 141 F.3d 1399, 1402 (10th Cir. 1998). 6 A defendant has

5
We need not decide whether the district court decided the deficient
performance issue and whether that resolution was correct. Examination of
Strickland’s prejudice prong is sufficient to resolve the matter.
6
Claims of violation of the Jury Selection and Service Act, 28 U.S.C.
§§ 1861-1869, are evaluated under the Sixth Amendment standard. Shinault, 147

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no constitutional right to a jury composed in whole or in part of persons of his

race. Beachum v. Tansy, 903 F.2d 1321, 1331 (10th Cir. 1990).

To establish a violation of the fair cross section requirement, Mr. Orange

must show (1) that the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in

the community; and (3) that this under-representation is due to systematic

exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S.

357, 364 (1979). The Fifth Amendment requires a substantially similar showing,

that the district’s system resulted in substantial under-representation of a distinct

group over a substantial period of time. Casteneda v. Partida, 430 U.S. 482, 494

(1977); Gault, 141 F.3d at 1402.

There is no dispute that Mr. Orange satisfied the first Duren element,

Aplee. Br. at 28, and we note that he need not belong to one of the distinctive

groups to have standing to challenge the fair cross section, Taylor, 419 U.S. at

526. We next consider whether the distinctive groups’ representation is fair and

reasonable in relation to their representation in the community. In order to make

this determination, we have consistently relied upon two measurements: absolute

and comparative disparity. Shinault, 147 F.3d at 1272; Gault, 141 F.3d at 1401-

F.3d at 1270.

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02; United States v. Yazzie, 660 F.2d 422, 426 (10th Cir. 1981). We have

explained these measures:

Absolute disparity is determined by subtracting the percentage of a
group in the jury wheel from the percentage of that same group in
the general population. Comparative disparity is determined by
dividing the absolute disparity of a group by the percentage of that
group in the general population.

Gault, 141 F.3d at 1402 (internal citation omitted). While absolute disparity

measures the difference between the percentage of a group in the general

population and its percentage in the qualified wheel, comparative disparity

measures the decreased likelihood that members of a distinct and under-

represented group will be called for a jury. United States v. Chanthadara, 230

F.3d 1237, 1257 (10th Cir. 2000); Shinault, 147 F.3d at 1272. In order to warrant

judicial intervention, the disparities must be “gross” or “marked.” Yazzie, 660

F.2d at 428; United States v. Test, 550 F.2d 577, 590 (10th Cir. 1976).

Absolute disparity is the starting point for all other methods of comparison

in this circuit. Chanthadara, 230 F.3d at 1256; Shinault, 147 F.3d at 1273. The

highest absolute disparity here, in either the 1993 or 1997 wheels, was 3.57%.

This disparity falls far short of the percentages in cases in which the Supreme

Court has found a Sixth Amendment violation. See Duren, 439 U.S. at 365-66

(39% absolute disparity); Casteneda, 430 U.S. at 482 (40% absolute disparity);

Jones v. Georgia, 389 U.S. 24 (1967) (14.7% absolute disparity). Moreover,

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selection mechanisms with absolute disparities higher than those presented in this

case have been upheld. Yazzie, 660 F.2d at 427 (4.29% absolute disparity);

Gault, 141 F.3d at 1402-03 (7% absolute disparity); Test, 550 F.2d at 588-89 (4%

absolute disparity). 7 The numbers for the district’s jury wheels for 1993 and 1997

fall clearly within this range. See Shinault, 147 F.3d at 1273.

Similarly, we have upheld selection procedures with higher comparative

disparities than those involved here, which range from 38.17% to 51.22%. In

Shinault, the comparative disparities were 59.84%, 50.09% and 48.63% with

group populations comprising 1.27%, 5.11% and 2.92% of the total community,

respectively. Id. The court noted 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 . . . considering the small size of each

of the groups in relation to the larger community, it is not surprising that the

7
Other circuits have upheld selection mechanisms with absolute disparities
between 2% and 11.5%. See e.g., United States v. Hafen, 726 F.2d 21, 23 (1st
Cir. 1984) (2.02%); Bryant v. Wainwright, 686 F.2d 1373, 1377-78 (11th Cir.
1982) (7.4%); United States v. Hawkins, 661 F.2d 436, 442 (5th Cir. 1981)
(5.45%); United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (7.2%);
United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115, 1126-27 (5th Cir.
1981) (11.5%); United States v. Potter, 552 F.2d 901, 906 (9th Cir. 1977) (2.7%)
(rev’d on other grounds), United States v. Brady, 579 F.2d 1121, 1132 (9th Cir.
1978); Thompson v. Sheppard, 490 F.2d 830, 832-33 (5th Cir. 1974) (11.0%);
United States v. Musto, 540 F.Supp. 346, 356 (D.N.J. 1982), aff’d sub nom.,
United States v. Aimone, 715 F.2d 822 (3d Cir. 1983) (5.4%).

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comparative disparity numbers are large.” Id. (internal citations and quotations

omitted). The court concluded that these figures were not “gross” or “marked”

enough to warrant judicial intervention. Id. In Chanthadara, comparative

disparities of 40.89% (for the group 7.9% of the population) and 58.39% (for the

group 2.74% of the population) were insufficient to establish a prima facie

violation. 230 F.3d at 1257. Here, the comparative disparity figures are less:

35.41%, 36.82%, 54.41%, and 54.97%, while the percentage of adult populations

are roughly the same. As such, the comparative disparity figures here are

insufficient to establish a prima facie case that the representation is not fair and

reasonable.

Mr. Orange suggests that persistent and statistically significant disparities

in minority representation (based on other statistical measures) exist and that such

a showing, coupled with reasonable procedures the district could have taken to

reduce such disparities, should establish a prima facie case. Aplt. Br. at 42. We

reject that approach when the existing measures, absolute and comparative

disparity, fail to establish a prima facie case under existing law. A court’s

consideration of reasonable measures that may reduce disparity is primarily

remedial and really does not address whether the disparity is a result of systematic

exclusion of a particular group.

We do recognize, as we have in the past, certain limitations associated

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with using absolute and comparative disparities as our measures in these types of

cases. See Shinault, 147 F.3d at 1273 (“Indeed, small absolute disparity figures

are less persuasive in a case . . . where, because of the minorities’ small

population, even the complete exclusion of the groups would result in absolute

disparities of less than 6%. . . . [Similarly], the smaller the group is, the more the

comparative disparity figures distorts the proportional representation.”);

Chanthadara, 230 F.3d at 1256-57 (internal citations and quotations omitted); see

also United States v. Jackman, 46 F.3d 1240, 1247 (2nd Cir. 1995) (discussing

weakness of absolute disparity analysis); Hafen, 726 F.2d at 24 (discussing

weakness of comparative disparity analysis). Still, we have consistently used

these methods, and absent evidence of intentional tampering, selection procedures

that result in disparities within the accepted range will be upheld.

Mr. Orange did present evidence based on other statistical measures, such

as chi square and standard deviation, and suggested that the selection process was

non-random. Tr. Vol. 3 at 99-100, 102-09. Absent direct evidence of tampering

or purposeful discrimination, we hold that when a court is presented with

evidence of comparative and absolute disparities, and those disparities fall within

our accepted range, a court need not look further into other statistical methods. 8

8
Mr. Orange’s case is entirely distinguishable from, and our holding not
inconsistent with, the Sixth Circuit’s decision in United States v. Ovalle, 136 F.3d
1092, 1104-1107 (6th Cir. 1998), where the court held that proof of disparities

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 Nor do we find any systematic exclusion in the district’s jury selection

methods. Systematic exclusion is exclusion “inherent in the particular jury-

selection process utilized.” Duren, 439 U.S. at 366. Mr. Orange identified

several causes for the alleged minority under-representation: (1) the clerk’s office

made no effort to update addresses before mailing questionnaires, or any effort to

locate those whose questionnaires were returned as undeliverable, thereby

decreasing representation in the more mobile minority population, Aplt. Br. at 16-

17; (2) the minority population was less likely to return the juror questionnaires

and the clerk’s office takes no further follow-up action, Aplt. Br. 19-22; and (3)

the voter registration list is itself unrepresentative because minorities are less

likely to register to vote as their majority counterparts, Aplt. Br. 23-25. Mr.

Orange urges the use of the Department of Public Safety (“DPS”) list of holders

of drivers’ licenses and identification cards. Aplt. Br. at 23.

None of these purported causes for under-representation constitute

systematic exclusion. Discrepancies resulting from the private choices of

potential jurors do not represent the kind of constitutional infirmity contemplated

was unnecessary. There, the jury selection plan at issue, in an effort to assure
that African-Americans are fairly represented in the qualified jury wheel, one in
five non-African-Americans were selected at random to be removed from the jury
wheel simply because of their racial status. Id. at 1105. Thus Ovalle dealt with
the situation, distinct from the one presented here, where the plan affirmatively
excludes jurors based on race.

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by Duren. See Test, 550 F.2d at 586-87; see also Barber v. Ponte, 772 F.2d 982,

997 (1st Cir. 1985) (en banc); United States v. Cecil, 836 F.2d 1431, 1446-47 (4th

Cir. 1988). The circuits are “in complete agreement that neither the Act nor the

Constitution require that a supplemental source of names be added to voter lists

simply because an identifiable group votes in a proportion lower than the rest of

the population.” Test, 550 F.2d at 587 n.8 (collecting cases) (internal quotations

and ellipses omitted). In addition, voter registration lists are the presumptive

statutory source for potential jurors. 28 U.S.C § 1863(b).

Because Mr. Orange cannot satisfy the second element of Duren, he cannot

establish a prima facie case that the Western District of Oklahoma’s selection

procedure violates the Sixth Amendment or the Jury Service Selection Act of

1968. 9 Mr. Orange cannot establish a Fifth Amendment violation because the

record does not support any purposeful discrimination, Duren, 439 U.S. at 368 n.

26, and Mr. Orange has failed to show systematic exclusion.

Finally, we turn to Mr. Orange’s statutory claim that the district’s grand

jury procedure violates the Jury Selection and Service Act’s proportionality

requirement. 28 U.S.C. § 1863(b)(3) requires a plan to assure that “each county,

9
We also find unpersuasive Mr. Orange’s arguments that the selection
plans violate statutory requirement of randomness, Aplt. Br. at 60, and the alleged
“creation of a non-statutory exclusion.” The failure of a person to comply with
the law and return a jury questionnaire does not violate either of these provisions.

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parish, or similar political subdivision is substantially proportionally represented

in the master jury wheel for that judicial district, division, or combination of

divisions.” Id. (emphasis added).

Specifically, the number of prospective jurors from each divisional wheel

to the pool from which Mr. Oranges grand jury was drawn was:

Oklahoma City 62
Enid-Ponca City 13
Lawton-Mangum 15
Woodward 10

The district court determined that the correct proportional allocation (and

Mr. Orange does not challenge, Aplt. Br. at 63) should have been:

Oklahoma City 66
Enid-Ponca City 12
Lawton-Mangum 15
Woodward 7

The district court found that while there existed a “minor geographic

imbalance,” there was insufficient evidence for a substantial violation of the Act.

Orange, 364 F.Supp. 2d at 1297. We agree. “Mere geographical imbalance [as

measured by a division’s over representation in a master jury wheel], absent

evidence that an identifiable and cognizable segment of the community has been

systematically excluded or underrepresented by reason of such imbalance, does

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not violate the statutory and constitutional requirement that the jury panel

represent a fair cross section of the community.” Test, 550 F.2d at 582 n.4

(internal quotations omitted).

The differences here (one in twenty-five misplaced jurors) are not

significant enough to constitute substantial failure to comply with the Act. See

United States v. Bailey, 76 F.3d 320, 322 (10th Cir. 1996). It does not necessarily

follow that because the minimally under-represented district has the highest black

population, a correction would have resulted in a higher number of black jurors.

Moreover, having already determined that the district-wide composition did not

have disparity substantial enough to warrant judicial intervention, Mr. Orange has

failed to show that the geographic imbalance carried with it a racial impact.

In Mr. Orange’s case, the merits of his jury composition claim would have

failed under both constitutional and statutory standards. As such, there could be

no prejudice from his counsel’s failure to raise the issue. Mr. Orange thus failed

to satisfy the prejudice prong of Strickland, and the district court properly denied

his § 2255 motion based on ineffective assistance of counsel.

AFFIRMED.

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United States v. Orange, No. 05-6105
McCONNELL, J., concurring.

I am not necessarily convinced that, “[a]bsent direct evidence of tampering

or purposeful discrimination, . . . when a court is presented with evidence of

comparative and absolute disparities, and those disparities fall within our

accepted range, a court need not look further into other statistical methods,” as

the majority holds, Maj. Op. 13-14, especially where expert testimony indicates

that there exist low cost, but effective, means by which disparities could be

significantly reduced, even without resorting to sources other than voter

registration lists. But I am convinced that the great weight of this Circuit’s

precedent points in that direction, and that defense counsel cannot be thought to

have provided constitutionally ineffective assistance on account of devoting his

energies to other more promising lines of defense. I therefore concur in the

judgment.

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