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United States v. Cannady

filed*fn*: April 11, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TODD EUGENE CANNADY, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. PETER JESS OJEDA, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. ROBERT LEWIS BLACK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-93-00071-AHS. Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-93-00122-LHM-1, D.C. No. CR-93-00116-LHM-1, Linda H. McLaughlin, District Judge, Presiding.

Before: Warren J. Ferguson, Robert R. Beezer, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Ferguson.

Author: Ferguson

FERGUSON, Circuit Judge:

Defendants Todd Eugene Cannady, Peter Jess Ojeda, and Robert Lewis Black appeal their convictions for unrelated crimes. Each defendant contends that the jury selection plan used in the Central District of California is unconstitutional. Cannady and Ojeda also appeal on other grounds which will be determined by separate unpublished Dispositions.

I.

The Central District of California spans seven counties: Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura. In the 1980's, Congress established that court in the Central District be held at federal courthouses in Los Angeles and in Santa Ana. In 1992, Congress divided the Central District into three divisions. The Western Division is composed of Los Angeles, San Luis Obispo, Santa Barbara, and Ventura Counties. The Southern Division is composed of Orange County. The Eastern Division is composed of Riverside and San Bernardino Counties. Until 1993, all juries for cases tried in the Central District, whether in the Los Angeles or in the Santa Ana courthouse, were drawn from the entire district.

In August of 1993, the Central District of California promulgated General Order 336, a new jury selection plan for the Central District. The Judicial Council of the Ninth Circuit approved the order. General Order 336 directs that juries in the Santa Ana courthouse be drawn only from the three counties comprising the Southern and Eastern Divisions, namely Orange, Riverside, and San Bernardino Counties, and juries in the Los Angeles courthouse be drawn only from the Western Division. The plan requires that jurors be selected at random from voter registration lists and placed on the "master jury wheels" for each courthouse. The master jury wheel is an electronic data processing system the purpose of which is to obtain a random and fair cross section of the division or divisions from which jurors are selected.

Defendant Cannady's trial for bank robbery in violation of 18 U.S.C. § 2113(a) and (d) began in late 1993. After selection of his petit jury was completed, Cannady, an African-American, filed a pre-trial objection contending that ethnic minorities were underrepresented in his jury venire. The district court declared a mistrial and ordered briefing on the question whether the jury selection system in place was unconstitutional. Cannady argued that the jury selection procedure violates the Jury Selection and Service Act of 1968 (28 U.S.C. § 1861), the Sixth Amendment, and the equal protection and due process guarantees of the Fifth Amendment. After due consideration, the district court denied Cannady's challenges on the grounds that 1) the selection of jurors from only the Southern and Eastern Divisions of the district is constitutional, and 2) ethnic minorities are not significantly underrepresented on the master jury wheel for the Southern and Eastern Divisions. A new jury was selected in accordance with General Order 336. Cannady was tried and convicted.

Defendant Ojeda's trial for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), occurred in late 1993. Before trial, Ojeda, a Hispanic, filed an objection to the use of General Order 336 in selecting his jury on the ground that it resulted in the underrepresentation of ethnic minorities in his venire in violation of the Fifth and Sixth Amendments and § 1861. The district court overruled Ojeda's objection, and Ojeda was tried and convicted.

Defendant Black's trial for bank robbery in violation of 18 U.S.C. § 2113(a) also occurred in late 1993. Black, an African-American, also filed a pre-trial objection to the jury selection method raising the same challenges as Cannady and Ojeda, and the district court overruled his objection. In reviewing both Ojeda's and Black's objections, the district court adopted the findings and analysis of the district court in United States v. Irurita-Ramirez, 838 F. Supp. 1385 (C.D. Cal. 1993).

Cannady, Ojeda, and Black now appeal their convictions on the ground that the jury selection procedure used by the Central District of California is unconstitutional.

II.

The defendants contend that the jury selection procedure in the Central District deprived them of a jury selected from a fair cross section of the community, in violation of 28 U.S.C. § 1861, the Sixth Amendment and the Fifth Amendment. Defendants' basis for challenging the new jury selection system is that it results in the underrepresentation of distinctive groups in the community because it mandates selection of juries in the Santa Ana courthouse from only the Southern and Eastern Divisions of the Central District and not from the entire district. This court must review "independently and non-deferentially" a challenge to the composition of grand and petit juries. United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 provides that "all litigants . . . 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." (emphasis added). The test for proving a prima-facie constitutional violation in the selection of a fair cross section is the same for challenges under both the Sixth Amendment and 28 U.S.C. § 1861. Sanchez-Lopez, 879 F.2d at 546-47; United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983), cert. denied, 464 U.S. 821, 78 L. Ed. 2d 95, 104 S. Ct. 87 (1983). The ...


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