United States v. Robert Edward Pritt, Jr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10909 JANUARY 31, 2012
Non-Argument Calendar JOHN LEY
_________________________ CLERK
D.C. Docket No. 6:09-cr-00110-JA-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EDWARD PRITT, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 31, 2012)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Robert Edward Pritt appeals his convictions for assaulting a correctional
officer and for assaulting a correctional officer with a deadly weapon. He argues
that (1) the jury selection process of the Orlando Division of the Middle District of
Florida causes the African American and Hispanic populations to be
underrepresented in the jury pool in violation of the Sixth Amendment and the
Jury Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. §§ 1861 et seq.; (2)
the jury selection plan of the Middle District of Florida violates the JSSA because
it does not supplement voter lists with another source of names; and (3) the district
court erred in denying his motions for additional discovery under the JSSA, for an
evidentiary hearing under the JSSA, and for the appointment of experts.
I.
We review de novo constitutional challenges to jury selection processes,
United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995), as well as claims
under the JSSA, see United States v. Carmichael, 560 F.3d 1270, 1277–79 (11th
Cir. 2009).
A.
The Sixth Amendment provides that a criminal defendant “shall enjoy the
right to a speedy and public trial[] by an impartial jury of the State and district
wherein the crime shall have been committed.” U.S. Const. amend. VI. The
Supreme Court has explained that this requires “the selection of a petit jury from a
representative cross section of the community.” Taylor v. Louisiana, 419 U.S.
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522, 528, 95 S. Ct. 692, 697 (1975). To establish a prima facie violation of this
constitutional requirement, the defendant 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
underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979). If a defendant
cannot establish any one of these elements, his claim under the Sixth Amendment
fails. United States v. Pepe, 747 F.2d 632, 649 (11th Cir. 1984).
To determine whether the representation of a group is fair and reasonable,
we look only to the “absolute disparity” produced in the selection process. Id.
Here, this term refers to the percentage point difference between the percentage of
the African American and Hispanic populations eligible for jury service and the
percentage of African Americans and Hispanics in the jury pool. See Carmichael,
560 F.3d at 1280. “Under black letter Eleventh Circuit precedent, ‘if the absolute
disparity . . . is ten percent or less, the second element is not satisfied.’” Id.
(quoting Grisham, 63 F.3d at 1078–79).1
1
The former Fifth Circuit reserved the question of whether this rule applies if a group is
less than 10 percent of the community. United States v. Maskeny, 609 F.2d 183, 190 (5th Cir.
1980) (noting that it was not necessary to address the argument that “reliance on absolute
disparity could lead to approving the total exclusion from juries of a minority that comprise[s]
less than ten percent of the population” because “all the groups [at issue in the case] comprise[d]
3
Both in the district court and on appeal, Pritt conceded that for each of the
years he questions, none of the relevant absolute disparities exceeded 10 percent.2
Instead, he urges us to reassess the requirement that a criminal defendant
demonstrate an absolute disparity of more than 10 percent. Although Pritt’s
argument has some force, this panel may not revisit that requirement. Under our
prior precedent rule, “[w]e may disregard the holding of a prior opinion only
where that holding is overruled by [this] Court sitting en banc or by the Supreme
Court.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quotation
marks omitted).
Pritt argues that the Supreme Court’s decision in Berghuis v. Smith, ___
U.S. ___, 130 S. Ct. 1382 (2010), requires us to reconsider our precedent. We are
not persuaded. In Berghuis, the Supreme Court did observe that the absolute
disparity test is “imperfect.” Id. at 1393. But the Court also made the same
observation about the other tests that the lower courts have applied. See id. Pritt
more than ten percent of the community”).
2
Specifically, in 2007, African Americans were 10.4 percent of the general population,
but only 6.44 percent of the qualified jury wheel (QJW); Hispanics were 10.2 percent of the
general population, but only 8.34 percent of the QJW. In 2009, African Americans again were
10.4 percent of the general population, but only 6.95 percent of the QJW; Hispanics were 10.2
percent of the general population, but only 9.51 percent of the QJW. Under our Circuit
precedent, African Americans and Hispanics must be deemed to be fairly represented in the jury
pool in both 2007 and 2009 so long as they account for at least 0.4 percent and 0.2 percent of the
QJW.
4
emphasizes that the Supreme Court declined to adopt the absolute disparity rule.
But that is true because the Court found it unnecessary to specify which test is
appropriate. Id. at 1393–94 & n.4. (noting that it had “no cause to take sides today
on the method or methods by which underrepresentation is appropriately
measured.”). The Supreme Court thus did not “actually abrogate” our prior
precedent. Kaley, 579 F.3d at 1255.3 The district court did not err in rejecting
Pritt’s Sixth Amendment claim.4
B.
The JSSA provides that “all litigants in Federal courts entitled to trial by
jury 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.” 28 U.S.C. § 1861. The core requirement of the JSSA is that district
courts “place into operation a written plan” designed to protect this right. Id. §
1863(a). If the JSSA is violated, a criminal defendant may move to dismiss the
3
But the Supreme Court noted that absolute and comparative disparity measurements
“can be misleading when, as here, members of the distinctive group comp[ose] [only] a small
percentage of those eligible for jury service.” Berghuis, 130 S. Ct. at 1393 (quotation marks
omitted).
4
In view of this analysis, it is unnecessary for us to address Pritt’s argument that he has
established the third element of the Duren test—that the underrepresentation arises from
systematic exclusion. See Pepe, 747 F.2d at 649 (holding that if a defendant does not establish
any element of the Duren test, his claim under the Sixth Amendment fails).
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indictment or stay the proceedings. Id. § 1867(a). However, “[b]y its terms, the
JSSA provides remedies only for a ‘substantial failure to comply’ with its
requirements.” Carmichael, 560 F.3d at 1277 (quoting 28 U.S.C. § 1867(d)). For
a violation of the JSSA to be “substantial,” it must frustrate one of the principles
underlying the statute, such as the fair cross-section principle. Id. “The standard
for determining a violation of the statutory fair cross-section requirement is the
same as that applied in assessing a sixth amendment fair cross-section violation.”
United States v. Rodriguez, 776 F.2d 1509, 1510 n.1 (11th Cir. 1985). As set out
above, Pritt has not carried his burden to demonstrate a Sixth Amendment
violation. Thus, his claim that the operation of the jury selection plan in the
Orlando Division of the Middle District of Florida constitutes a substantial
violation of the JSSA must also be rejected.
II.
The JSSA provides that a jury selection plan must “specify whether the
names of prospective jurors shall be selected from the voter registration lists or the
lists of actual voters . . . within the district or division.” 28 U.S.C. § 1863(b)(2).
Also, the JSSA requires that a plan “prescribe some other source or sources of
names in addition to voter lists where necessary to . . . protect the rights” under the
statute. Id. The Middle District of Florida’s jury selection plan requires only the
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use of voter lists; it does not contemplate other sources of names. Pritt suggests
that this deficiency also entitles him to a remedy under the JSSA. This argument
also lacks merit. The JSSA provides a remedy for a defendant only if a violation
is “substantial.” Carmichael, 560 F.3d at 1277. Having evaluated his arguments,
we conclude that Pritt has failed to show that the Middle District of Florida’s
failure to supplement the voter lists has given rise to such a violation. Pritt is
therefore not entitled to a remedy under the JSSA.
III.
Pritt filed a motion for additional discovery pursuant to 28 U.S.C. § 1867(f).
He also requested that the district court hold an evidentiary hearing pursuant to 28
U.S.C. § 1867(d). Finally, Pritt filed a motion for appointment of experts under 18
U.S.C. § 3006A(e)(1). On appeal, Pritt suggests that the district court erred in
denying each of these motions. These arguments fail as well.
A.
The JSSA provides that if a criminal defendant files a motion to dismiss or
stay under the statute, “[t]he parties . . . shall be allowed to inspect, reproduce, and
copy [the] records or papers [used by the clerk of court in connection with the jury
selection process] during the preparation and pendency of such a motion.” 28
U.S.C. § 1867(f). Pritt argues that the district court’s decision to deny his motion
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for additional discovery is inconsistent with the Supreme Court’s pronouncement,
in Test v. United States, 420 U.S. 28, 96 S. Ct. 749 (1975), that under this
statutory provision, “a litigant has essentially an unqualified right to inspect”
records regarding jury selection. Id. at 30, 96 S. Ct. at 750 (footnote omitted). We
cannot agree.
In Test, the Supreme Court faced a defendant who was given no access to
the court’s records. Indeed, the only material that the defendant was able to
provide to support his motion to dismiss was an affidavit from his counsel
containing facts disclosed by testimony in a jury challenge in another case. Id. at
29, 96 S. Ct. at 750. The Supreme Court held, under those circumstances, that it
was error for the district court to deny the defendant’s request to inspect the jury
selection records. See id. at 29–30, 96 S. Ct. at 750–51.
Here, Pritt was given access to records that enabled him to calculate the
relevant absolute disparities. Pritt was thus given the requisite material to
ascertain the facts that, under our precedent, are essential to his jury composition
claims. Unlike the defendants in Test and other cases, see, e.g., Gov’t of Canal
Zone v. Davis, 592 F.2d 887, 888–89 (5th Cir. 1979),5 Pritt was given access to
5
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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records that enabled him to “determine whether he has a potentially meritorious
jury challenge.” Test, 420 U.S. at 30, 95 S. Ct. at 750. Under these
circumstances, we cannot say that the district court erred in denying his motion for
additional discovery. See also United States v. McLernon, 746 F.2d 1098,
1122–23 (6th Cir. 1984).
B.
A party is entitled to a hearing under the JSSA only if the facts that he
provides in conjunction with his motion would, if true, “constitute a substantial
failure to comply” with the statute. 28 U.S.C. § 1867(d); see also United States v.
Bearden, 659 F.2d 590, 597 (5th Cir. 1981). The JSSA allows a district court to
“swiftly dispose of [a motion] if it fails, on its face, to state a case for which a
remedy could be granted.” H.R. Rep. No. 90-1076, at 14 (1968), as reprinted in
1968 U.S.C.C.A.N. 1792, 1806. As noted, Pritt conceded in the district court that
the relevant absolute disparities did not exceed 10 percent. The district court thus
did not err in denying his request for an evidentiary hearing.
C.
Under 18 U.S.C. § 3006A, a defendant who is financially unable to obtain
expert services that are “necessary for adequate representation” may request funds
for such services. 18 U.S.C. § 3006A(e)(1). A district court may refuse to
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approve such funds if it concludes that the defendant does not have a plausible
claim or defense. United States v. Rinchack, 820 F.2d 1557, 1564 (11th Cir.
1987). Given that Pritt conceded that the relevant absolute disparities did not
exceed 10 percent, he did not have claims that are plausible under our precedent.
The district court did not abuse its discretion in denying his motion for
appointment of experts.
IV.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
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