United States v. Rodriguez-Lara

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10113
Plaintiff-Appellee, D.C. No.
v.  CR-03-05101-1-
LUIS MANUEL RODRIGUEZ-LARA, OWW
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
April 11, 2005—San Francisco, California
Filed August 26, 2005
Before: Donald P. Lay,* Betty B. Fletcher, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge B. Fletcher
*Honorable Donald P. Lay, Senior United States Circuit Judge for the
Eighth Circuit, sitting by designation.
11595
UNITED STATES v. RODRIGUEZ-LARA 11599
COUNSEL
Melody M. Walcott, Assistant Federal Public Defender,
Fresno, California, for the defendant-appellant.
David Gappa, Assistant U.S. Attorney, Fresno, California, for
the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant-appellant Luis Manuel Rodriguez-Lara
(“Rodriguez”), an alien convicted of reentry after deportation,
appeals the district court’s denial of his motion to appoint an
expert to assist him in pursuing his equal protection and fair
cross-section challenges to the composition of the jury pool in
the Fresno Division of the Eastern District of California.
Rodriguez also claims that the district court erred in its appli-
cation of the U.S. Sentencing Guidelines and that the court
violated his Sixth Amendment rights by enhancing his sen-
tence in violation of Apprendi v. New Jersey and its progeny.
Given the extent of the fair cross-section showing Rodri-
guez was able to develop even without the help of an expert,
we hold that under the circumstances reasonably competent
11600 UNITED STATES v. RODRIGUEZ-LARA
counsel would have required the services of an expert for a
paying client, and the lack of an expert prejudiced Rodriguez.
The district court therefore abused its discretion in denying
Rodriguez’s motion for the appointment of an expert.
Although Rodriguez’s Sixth Amendments rights were not vio-
lated by the judge’s use of a prior conviction to enhance
Rodriguez’s sentence, the district court committed plain error
in applying the acceptance-of-responsibility reduction under
the Sentencing Guidelines. We therefore vacate Rodriguez’s
sentence and remand for resentencing and the appointment of
an expert.
I. BACKGROUND
Under the Jury Selection and Service Act of 1968 (JSSA),
28 U.S.C. § 1861 et seq., each federal judicial district must
devise a plan for random selection of grand and petit jurors.
This plan must be designed to ensure that litigants have grand
and petit juries selected from a fair cross-section of the com-
munity in the applicable district or division of the district, and
that no prospective jurors are subject to discrimination on any
of several enumerated grounds. Id. §§ 1861-63. The statute
contemplates that each district or division will use voter regis-
tration lists or the lists of actual voters of the political subdivi-
sions within that district or division, but the statute also
requires that jury selection plans “prescribe some other source
or sources of names in addition to voter lists where necessary
to foster the policy and protect the rights” of fair cross-section
and anti-discrimination. Id. § 1863(b)(2).
The jury plan for the Eastern District of California provides
that names of prospective jurors for the master jury wheel are
to be drawn randomly from voter registration records for all
counties within the relevant division of the district. Amended
Plan for the Random Selection of Grand and Petit Jurors,
General Order No. 374 (E.D. Cal. Mar. 22, 2000), at 3 (here-
inafter “Amended Plan”).1 The Fresno Division consists of
1
We take judicial notice of the Eastern District’s most current juror
selection plan, which replaced the 1992 plan included in the record. We
UNITED STATES v. RODRIGUEZ-LARA 11601
Merced, Mariposa, Madera, Fresno, Inyo, Kings, Tulare,
Kern, Calaveras, Stanislaus, and Tuolumne Counties. Id. at 1.
Names from the master jury wheel are drawn randomly as
necessary to fill the qualified jury wheel (which consists of
the names of individuals eligible for jury service and not
exempt or excused); names from the qualified wheel are
drawn randomly as necessary to select the individuals to be
summoned for service on grand and petit juries. Id. at 8, 12.
The qualifications for service are: United States citizenship;
eighteen years of age; residence within the judicial district for
one year; ability to read, write and understand English; ability
to speak English; mental and physical capability to render sat-
isfactory service; and no charge pending or conviction for a
crime punishable by imprisonment for more than one year
(absent restoration of civil rights). Id. at 10; 28 U.S.C.
§ 1865(b). Members of the armed forces in active service,
members of police and fire departments, and public officers
actively engaged in the performance of their official duties are
exempt from service. Amended Plan at 11; 28 U.S.C.
§ 1863(b)(6). Individuals who are over seventy years of age,
who have served as a federal grand or petit juror within the
preceding two years, who serve as volunteer safety personnel,
or for whom service would constitute an “undue hardship or
extreme inconvenience” (for example, because of distance
from the court or family emergency), may be excused from
service. Amended Plan at 10-11.
In March 2003, Rodriguez was charged with being a
deported alien found in the United States in violation of 8
U.S.C. § 1326. After successfully moving to represent him-
self, Rodriguez moved to dismiss the indictment, claiming
that Hispanics were underrepresented in the jury wheel of the
Fresno Division of the Eastern District of California, in viola-
note that the feature of the plan most salient to Rodriguez’s claims remains
unchanged: the 1992 plan, like the current plan, calls for the use of voter
registration records as the sole source of names for the master jury wheel.
11602 UNITED STATES v. RODRIGUEZ-LARA
tion of the fair cross-section requirement of the Sixth Amend-
ment and of the equal protection guarantee of the Fifth
Amendment.2 Relatedly, Rodriguez moved the court to pro-
vide him with jury statistics compiled by the court on forms
designated “JS-12” (commonly known simply as “JS-12s”),
and to appoint a demographic expert to assist him in substan-
tiating his claims concerning the systematic underrepresenta-
tion of Hispanics in the jury pool.
The court denied these motions without prejudice, and
Rodriguez renewed them, this time attaching supporting
exhibits including (in relevant part) a 1992 declaration pre-
pared for another case by an expert involved in several jury
underrepresentation cases; the 1992 jury selection plan for the
Eastern District of California; several JS-12s from the early
1990s; and 2000 census population data for the Fresno Divi-
sion. The district court expressed doubt about the viability of
Rodriguez’s claims but nonetheless ordered that Rodriguez be
provided with a more recent JS-12.
Three days later, Rodriguez again renewed his motion to
dismiss, now including the 2003 JS-12 statistics (provided by
the court) reflecting demographics both for the group of indi-
viduals who returned juror questionnaires after being drawn
2
Although Rodriguez styled his equal protection claim as one arising
under the Fourteenth Amendment, a claim of discrimination by the federal
government implicates the equivalent equal protection guarantee inherent
in the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe,
347 U.S. 497 (1954). In accordance with our duty to construe pro se
motions and pleadings liberally, see, e.g., Bernhardt v. Los Angeles
County, 339 F.3d 920, 925 (9th Cir. 2003), we treat Rodriguez’s equal
protection claim as one under the Fifth Amendment.
Rodriguez also alleged a violation of the JSSA, but we need not con-
sider this claim independently, because “[t]he test for a constitutionally
selected jury is the same whether challenged under the Sixth Amendment
of the Constitution or under the Jury Selection and Service Act.” United
States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989) (citation and
internal quotation marks omitted).
UNITED STATES v. RODRIGUEZ-LARA 11603
from the master jury wheel, and for the group of individuals
placed into the qualified jury wheel. Using this data, Rodri-
guez alleged a substantial disparity between the proportion of
Hispanics in the subset of the population old enough to serve
on federal juries (the “age-eligible” population) and the pro-
portion of Hispanics in the qualified jury wheel.3 Incorporat-
ing some of the arguments from the expert declaration he had
attached to his second motion, Rodriguez asserted that the
reason for the disparity was the Fresno Division’s use of voter
lists as the sole source of names for the master jury wheel.
The day before trial, the court denied Rodriguez’s motions
for the final time. In the view of the district court, Rodriguez
was required to show a disparity between Hispanic represen-
tation in the qualified jury wheel and Hispanic representation
in the subset of the population meeting all the federal juror-
eligibility requirements (the “jury-eligible population”), not
merely the general or age-eligible population, and the court
characterized the government’s “supplemental voter informa-
tion exhibit” as showing that for a portion of the Fresno Divi-
sion, the jury-eligible population was approximately 17%
Hispanic even though the total population was approximately
30% Hispanic.4 The court noted that challenges to jury pool
composition in the Eastern District of California had been
rejected by the Ninth Circuit in 1996 and by the Eastern Dis-
trict in 2003.5 According to the court, the “best way” to deter-
3
Rodriguez alleged an “absolute disparity” of 37.4%, a figure that is not
borne out by the data. As we shall explain, the data do reflect substantial
underrepresentation of Hispanics, just not to the extent Rodriguez claims.
4
The court mischaracterized the government’s data. For the state assem-
bly district in question, the 17% figure represented the proportion of the
registered-voter population that was Hispanic, not the proportion of the
jury-eligible population that was Hispanic.
5
The Ninth Circuit case to which the court referred, United States v.
Jones, was an unpublished memorandum disposition. 91 F.3d 156 (9th
Cir. 1996). The district court case, United States v. Luong, rejected a chal-
lenge to jury composition in the Sacramento Division, not the Fresno Divi-
sion, of the Eastern District. 255 F. Supp. 2d 1123, 1126, 1131 (E.D. Cal.
2003).
11604 UNITED STATES v. RODRIGUEZ-LARA
mine if Rodriguez’s fair cross-section and equal protection
rights were being violated “is to see who shows up tomorrow
in the jury panel. And we will get a very good look. And if
you don’t believe that there is a fair representation there, you
can object and if it isn’t a representative panel, we don’t have
to proceed to trial.” The court further observed that “in the
last 15 to 20 cases, we get very, very strong Hispanic repre-
sentation.” Not “see[ing] anything more that has been submit-
ted than when we started this process,” and because of “the
insufficiency of the factual showing which didn’t require an
expert,” the court denied Rodriguez’s motions to dismiss and
to have an expert appointed.6
Rodriguez was convicted after a one-day trial.
At sentencing, the court applied a 16-level enhancement
because Rodriguez had been previously deported following a
conviction for a drug trafficking offense — a state felony con-
viction for transport of methamphetamine — for which he had
received a sentence greater than 13 months. See U.S. Sentenc-
ing Guidelines Manual § 2L1.2(b)(1)(A)(I) (2002). After
Rodriguez expressed deep regret for returning to the United
States, the court gave a two-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), but declined to give
a third level because the case went to trial and therefore the
acceptance of responsibility was not timely (though the judge
denied that he was penalizing Rodriguez for going to trial).
Rodriguez did not object to the judge’s failure to give a three-
6
The following day, on the morning of trial, the court indicated it was
supplementing the record of the denial of Rodriguez’s motion with addi-
tional statistics provided by the government. The relevance of these statis-
tics, which reflect demographics for the total population and the registered
voter population of State Board of Equalization District Two, is unclear.
The Fresno Division includes 11 counties. State Board of Equalization
District Two includes 31 entire counties and portions of 3 others. Some
counties partially included in District Two, such as San Bernardino and
Los Angeles, are not even part of the federal Eastern District, much less
the Fresno Division.
UNITED STATES v. RODRIGUEZ-LARA 11605
level reduction. Applying the resulting sentencing range, the
court sentenced Rodriguez to 77 months imprisonment, along
with a special assessment of $100 (waived) and three years of
supervised release.
Rodriguez timely appealed, and we have jurisdiction under
28 U.S.C. § 1291.
II. ANALYSIS
A. Jury Composition Challenges / Failure to Appoint an
Expert
A district court’s denial of a request for public funds to hire
an expert is reviewed for abuse of discretion. United States v.
Nelson, 137 F.3d 1094, 1101 n.2 (9th Cir. 1998). A challenge
to the composition of grand or petit juries is reviewed “inde-
pendently and non-deferentially.” Thomas v. Borg, 159 F.3d
1147, 1149 (9th Cir. 1998) (citation and internal quotation
marks omitted).
[1] Federal law provides that a district judge shall authorize
the provision of expert services to a defendant financially
unable to obtain them where such services are necessary for
adequate representation. 18 U.S.C. § 3006A(e)(1). It is an
abuse of discretion to deny a request for an expert under this
provision where (1) “reasonably competent counsel would
have required the assistance of the requested expert for a pay-
ing client,” and (2) the defendant “was prejudiced by the lack
of expert assistance.” Nelson, 137 F.3d at 1101 n.2 (citation
and internal quotation marks omitted). Prejudice must be
shown by clear and convincing evidence. Id. Therefore,
Rodriguez’s claim that an expert should have been appointed
must be evaluated in the context of the underlying claims for
which he asserts he ought to have been given expert help.
Rodriguez’s two challenges to the representativeness of the
Fresno Division jury pool are related but distinct. In Cas-
11606 UNITED STATES v. RODRIGUEZ-LARA
taneda v. Partida, 430 U.S. 482 (1977), the Supreme Court
laid out the following procedure for making out a prima facie
case for an equal protection violation in the jury selection pro-
cedures:
[1] The first step is to establish that the group is one
that is a recognizable, distinct class, singled out for
different treatment under the laws, as written or as
applied. [2] Next, the degree of underrepresentation
must be proved, by comparing the proportion of the
group in the total population to the proportion called
to serve as . . . jurors, over a significant period of
time. . . . [3] Finally . . . a selection procedure that
is susceptible of abuse or is not racially neutral sup-
ports the presumption of discrimination raised by the
statistical showing.
Id. at 494 (citations omitted). These elements, if shown, raise
the inference of discriminatory intent: “Once the defendant
has shown substantial underrepresentation of his group, he
has made out a prima facie case of discriminatory purpose.”
Id. at 495. At that point, “the burden of proof shifts to the
State to rebut the presumption of unconstitutional action by
showing that permissible racially neutral selection criteria and
procedures have produced the monochromatic result.” Id. at
494 (citation and internal quotation marks omitted).
[2] To establish a prima facie case for a violation of the
Sixth Amendment’s fair cross-section requirement, under
Duren v. Missouri, 439 U.S. 357 (1979), the defendant must
show:
(1) that the group alleged to be excluded is a “dis-
tinctive” group in the community; (2) that the repre-
sentation 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
UNITED STATES v. RODRIGUEZ-LARA 11607
(3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
Id. at 364. Unlike the equal protection challenge, the fair
cross-section claim does not require a showing that the selec-
tion procedure is susceptible of abuse or not race-neutral; the
defendant must only show that the exclusion of his or her
group is “systematic.” Once the defendant has established a
prima facie case, the burden shifts to the government to show
that “a significant state interest be manifestly and primarily
advanced by those aspects of the jury-selection process . . .
that result in the disproportionate exclusion of a distinctive
group.” Id. at 367-68; see also Thomas, 159 F.3d at 1150.
The selection of a grand or petit jury in violation of either
the equal protection or the fair cross-section guarantee is
structural error that entitles a defendant to relief without a
demonstration of prejudice. See Vasquez v. Hillery, 474 U.S.
254, 263-64 (1986) (plurality and majority portions); United
States v. Okiyama, 521 F.2d 601, 604 (9th Cir. 1975) (per
curiam); see also Taylor v. Louisiana, 419 U.S. 522, 530
(1975) (describing the fair cross-section requirement as “fun-
damental to the jury trial guaranteed by the Sixth Amend-
ment”).
1. Fair Cross-Section
[3] We begin with the Sixth Amendment claim. Rodri-
guez’s claim clearly satisfies the first prong of Duren. Hispan-
ics have long been recognized as a “distinctive” group in the
community. See United States v. Sanchez-Lopez, 879 F.2d
541, 547 (9th Cir. 1989) (citing Castaneda, 430 U.S. at 495).
The second prong of the Duren test requires the defendant
to show that the distinctive group is underrepresented in jury
venires “in relation to the number of such persons in the com-
munity.” Duren, 439 U.S. at 364. This standard seems clear
enough — it is to the community that comparisons must be
11608 UNITED STATES v. RODRIGUEZ-LARA
made for the purposes of a fair cross-section claim. Here,
however, the district court faulted Rodriguez’s showing —
which compared jury pool Hispanic representation to His-
panic representation in the age-eligible population — for fail-
ing to make a comparison to Hispanic representation in the
jury-eligible population.
[4] The weight of Supreme Court and circuit authority
teaches that, for purposes of the prima facie case, the propor-
tion of the distinctive group in the jury pool is to be compared
with the proportion of the group in the whole community. In
Duren itself, the Supreme Court required the defendant to
show “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.” Id. (empha-
sis added). The Court then elaborated that “the fair-cross-
section requirement involves a comparison of the makeup of
jury venires or other sources from which jurors are drawn
with the makeup of the community, not of voter registration
lists.” Id. at 365 n.23 (emphasis in original). Noting that no
evidence in the record undermined the numbers proffered by
the defendant, the Supreme Court evaluated the defendant’s
prima facie case using census data showing the proportion of
age-eligible members of the distinctive group at issue. Id. at
364 n.21, 365 & n.23. The Supreme Court has subsequently
reiterated that “[t]he second prong of Duren is met by demon-
strating that the [distinctive] group is underrepresented in pro-
portion to its position in the community as documented by
census figures.” Teague v. Lane, 489 U.S. 288, 301 n.1 (1989)
(plurality portion) (emphasis added).
Other Supreme Court authority reflects a similarly permis-
sive view of the requirements of a prima facie showing of
underrepresentation. In Castaneda, for example, the Supreme
Court allowed the defendant to use total population figures to
establish a prima facie case in the related context of an equal
protection challenge to jury composition. 430 U.S. at 495-96.
Similarly, in Turner v. Fouche, 396 U.S. 346 (1970), the
UNITED STATES v. RODRIGUEZ-LARA 11609
Supreme Court evaluated the representativeness of a grand
jury source list by comparison with minority representation
within the general population of the relevant county. Id. at
359. And in Alexander v. Louisiana, 405 U.S. 625 (1972), the
Supreme Court analyzed a prima facie case for an equal pro-
tection violation using census data reflecting the proportion of
the distinctive group among the age-eligible population,
whom the Court characterized as “presumptively eligible for
grand jury service,” even as it acknowledged that state law
disqualified potential jurors based on non-residency, illiter-
acy, alienage, disability, and criminal history, as well as age.
Id. at 627 & n.4.
Following the Supreme Court’s lead, our circuit’s fair
cross-section cases treat total population figures as an appro-
priate basis for comparison for the purposes of a prima facie
case under Duren. See, e.g., United States v. Suttiswad, 696
F.2d 645, 648 n.3 (9th Cir. 1982); United States v. Armstrong,
621 F.2d 951, 955-56 (9th Cir. 1980) (Kennedy, J.). In United
States v. Sanchez-Lopez, we specifically confronted the gov-
ernment’s objection that a defendant’s statistical analysis
based on census data did not take into account the proportion
of Hispanics (the distinctive group there in question) who
were ineligible for jury service. 879 F.2d at 547. Citing Duren
and Castaneda, we squarely rejected the proposition “that the
defendants were required to provide jury eligible population
figures.” Id. Instead, “[b]ecause the government . . . failed to
present any evidence that contradicted appellants’ figures, we
will assume for purposes of this analysis that the statistics are
valid.” Id. This circuit has generally continued to adhere to
the Duren/Sanchez-Lopez view that the defendant need not
come forward with jury-eligible population data in order to
make a prima facie case. See, e.g., Randolph v. California,
380 F.3d 1133, 1140 (9th Cir. 2004); Thomas, 159 F.3d at
1150; Nelson, 137 F.3d at 1101.
[5] Our case law reflects one corollary to this rule: where
the record contains population data broken down by age, the
11610 UNITED STATES v. RODRIGUEZ-LARA
representativeness of the jury pool is to be compared to this
refined set of data for the purpose of the defendant’s prima
facie case under Duren. See United States v. Esquivel, 88 F.3d
722, 726-27 (9th Cir. 1996) (opinion of T.G. Nelson, J.,
announcing the judgment of the panel).7 Although the
Supreme Court’s acceptance of comparisons using total popu-
lation figures clearly indicates that a defendant is not required
to gather data reflecting the age-eligible population of the dis-
tinctive group in question, see, e.g., Castaneda, 430 U.S. at
495-96, our use of age-eligible data where available comports
with the Supreme Court’s analysis in Duren itself, which
relied on census data reflecting the proportion of the distinc-
tive group in the adult population, see 439 U.S. at 362.
[6] Two of our cases appear to be in conflict with the
Supreme Court and with the Sanchez-Lopez line of cases. See
United States v. Artero, 121 F.3d 1256, 1261-62 (9th Cir.
1997) (requiring a fair-cross-section claimant to compile data
reflecting the jury-eligible — not merely age-eligible — pop-
ulation in order to make the representativeness comparison for
the second prong of the prima facie case); Sanders v. Wood-
ford, 373 F.3d 1054, 1069-70 (9th Cir. 2004) (following
Artero).8 However, given the overwhelming weight of our
own prior case law and (more importantly) that of the
Supreme Court, we must adhere to our longstanding authority
that the defendant’s prima facie case for a fair-cross section
claim may rely on a comparison to total population data or,
where available in the record, age-eligible population data.
7
Judge Kleinfeld concurred only in the result; Judge Boochever, in a
“concurrence and partial dissent,” would have preferred to remand to the
district court instead of taking judicial notice of the data reflecting the age-
eligible population. See id. at 728-29.
8
Prior to Artero, one other Ninth Circuit case suggested, without discus-
sion or citation, that the appropriate comparison group for the second
Duren prong is the “number of eligible minorities.” United States v. Can-
nady, 54 F.3d 544, 548 (9th Cir. 1995). The decision did not elaborate on
this proposition or clarify whether it was referring to age-eligible or jury-
eligible minorities.
UNITED STATES v. RODRIGUEZ-LARA 11611
Sanchez-Lopez is the binding precedent of our circuit, which
a three-judge panel may not overrule absent intervening
Supreme Court or en banc authority (of which we have found
none). See Obrey v. Johnson, 400 F.3d 691, 699-701 (9th Cir.
2005) (recognizing and resolving tension among Ninth Circuit
cases applying conflicting versions of the harmless error stan-
dard in civil cases); see also H & D Tire & Automotive-
Hardware, Inc. v. Pitney Bowes, Inc., 227 F.3d 326, 330 (5th
Cir. 2000) (“When panel opinions appear to conflict, we are
bound to follow the earlier opinion.”).9
9
While its precedential pedigree and fidelity to Supreme Court jurispru-
dence are what compel us to follow the view reflected in Sanchez-Lopez
and Esquivel, our conclusion is fortified by the evident wisdom of this
position on its merits.
Whereas census data are readily accessible, jury-eligible population
data will often be quite hard for fair-cross-section claimants to obtain,
given the difficulty of sorting out from the general population figures the
number of individuals who (for example) are not citizens, who are not flu-
ent in English, or who are “incapable, by reason of mental or physical
infirmity, to render satisfactory jury service.” 28 U.S.C. § 1865(b) (federal
jury qualifications). Other courts have noted the potentially “insuperable”
burden that requiring such data could place on fair-cross-section claim-
ants, United States v. Butera, 420 F.2d 564, 569 n.13 (1st Cir. 1970), over-
ruled on other grounds, Barber v. Ponte, 772 F.2d 982, 996 (1st Cir.
1985) (en banc), as well as scholars’ conclusion that “eligible population
figures are almost impossible to obtain.” People v. Harris, 679 P.2d 433,
442 (Cal. 1984) (plurality opinion) (quoting David Kairys et al., Jury Rep-
resentativeness: A Mandate for Multiple Source Lists, 65 Cal. L. Rev. 776,
785 n.63 (1977) (internal quotation marks omitted)), not followed on other
grounds, People v. Sanders, 797 P.2d 561, 570-72 (Cal. 1990); see also
Hon. Walter P. Gewin, An Analysis of Jury Selection Decisions, Appen-
dix to Foster v. Sparks, 506 F.2d 805, 811, 833 (5th Cir. 1975). Requiring
a fair-cross-section claimant to come forward with a comparison to the
jury-eligible population thus risks placing one of the elements of the prima
facie case for equal protection and fair cross-section claims out of reach,
thereby insulating jury selection systems from judicial scrutiny entirely.
So it stands to reason that none of the Supreme Court’s cases has
charged a fair-cross-section claimant with the affirmative obligation to
compile data reflecting the jury-eligible population. In fact, we have found
no case, before or after Duren, in which the Supreme Court rejected a
prima facie showing of underrepresentation because of a failure to provide
11612 UNITED STATES v. RODRIGUEZ-LARA
Under the Duren/Sanchez-Lopez approach, the data Rodri-
guez has presented satisfies the second prong of the prima
facie case for a fair cross-section violation. Our case law has
settled on “absolute disparity” — the difference between the
percentage of the distinctive group in the community and the
percentage of that group in the jury pool — as the appropriate
measure of the representativeness of the jury pool. See
Sanchez-Lopez, 879 F.2d at 547.10 We have declined to find
underrepresentation of a distinctive group where the absolute
statistics reflecting the distinctive group’s proportion in the jury-eligible
— as opposed to the general or age-eligible — population. To reiterate the
Supreme Court’s admonition in Duren, “the fair-cross-section requirement
involves a comparison of the makeup of jury venires or other sources from
which jurors are drawn with the makeup of the community.” 439 U.S. at365 n.23 (emphasis in original).
10
The main alternative measure of representativeness is “comparative
disparity,” which is determined by taking the absolute disparity percentage
and dividing it by the percentage of the distinctive group in the total popu-
lation. See Sanchez-Lopez, 879 F.2d at 548. For example, if Hispanics are
20% of the community and 5% of the jury pool, the absolute disparity is
15% (20% minus 5%), and the comparative disparity is 75% (15% divided
by 20%).
Each measure has its limitations. The comparative disparity method can
distort the effect of disparities in representation when absolute numbers
are low. See, e.g., Armstrong, 621 F.2d at 955-56. For example, if Hispan-
ics are 2% of the community and 1% of the jury pool, the comparative dis-
parity is 50%, but for every 100 jurors, there is only one fewer Hispanic
than would be proportional.
However, absolute disparity is also problematic. For example, our cir-
cuit has tolerated absolute disparities in distinctive group representation of
up to 7.7%. See Suttiswad, 696 F.2d at 649. The necessary implication of
this margin is that if a distinctive group makes up 7.7% or less of the com-
munity, then the fair cross-section requirement offers no redress even if
that group is entirely shut out of the jury pool. See Kairys et al., 65 Cal.
L. Rev. at 793 (“[I]n the 11% black jurisdiction, the 10% absolute dispar-
ity amounts to almost total exclusion of black people.”).
While Ninth Circuit precedent requires us to evaluate representativeness
using absolute disparity statistics alone, that approach is not without short-
comings.
UNITED STATES v. RODRIGUEZ-LARA 11613
disparity was 7.7% or lower, see Suttiswad, 696 F.2d at 649
(7.7% disparity); Thomas, 159 F.3d at 1151 (collecting cases),
while we have found a 15.4% absolute disparity sufficient to
satisfy the second prong of the Duren test, and cited with
approval another circuit’s recognition of the significance of a
14.1% disparity, see Randolph, 380 F.3d at 1140 (citing Ram-
seur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992) (en banc)).
[7] In Rodriguez’s case, the JS-12 data and the 2000 census
data for the age-eligible population show an absolute disparity
of 14.55% between the percentage of age-eligible Hispanics
in the Fresno Division population (35.21%) and the percent-
age of Hispanics in the subset of the jury pool for which eth-
nicity information is available (20.66%).11 A 14.55% absolute
disparity falls within the range of disparities that we have rec-
ognized as significant for the purpose of establishing underre-
presentation in the context of a prima facie case. Therefore
Rodriguez has satisfied the second Duren prong.12
The third Duren prong requires a showing that the underre-
presentation results from a systematic exclusion of the distinc-
11
Our calculations are set out in an Appendix to this opinion. Two
points should be noted. First, we use the age-eligible population figures
that are available in the record. See Esquivel, 88 F.3d at 726-27 (opinion
of T.G. Nelson, J., announcing the judgment of the panel).
Second, to address the problem of the 24% of the qualified jury wheel
whose ethnicity was unreported, the ethnicity percentages were recalcu-
lated as a percentage of the jurors whose ethnicity was reported. In other
words, to avoid distorting the numbers by using the percentage of reported
Hispanics as a percentage of all prospective jurors including those not
reporting their ethnicity (an approach that would unrealistically assume
that none of the jurors not reporting their ethnicity were Hispanic), the
individuals not reporting were simply not included in the percentage cal-
culations. Therefore the calculations reflect no assumptions about the eth-
nicity of those not reporting.
12
The district court rejected Rodriguez’s claim in part based on the
judge’s personal observations about the representativeness of the juries he
has seen. The case law provides no support for taking such observations
into account under Duren.
11614 UNITED STATES v. RODRIGUEZ-LARA
tive group in the jury-selection process. Under Duren,
“disproportionate exclusion of a distinctive group from the
venire need not be intentional to be unconstitutional, but it
must be systematic.” Randolph, 380 F.3d at 1141. Courts
have found systematic exclusion to be shown, for example,
where a jury selection system allowed women to opt out of
service more easily than men, where a computer error resulted
in the exclusion of individuals from two regions where a large
proportion of racial and ethnic minorities lived, and where
jurors were selected based on wholly subjective criteria. Id.(citing Duren itself, United States v. Jackman, 46 F.3d 1240(2d Cir. 1995), and Gibson v. Zant, 705 F.2d 1543 (11th Cir.
1983), for these examples). We determined that a defendant
failed to satisfy the “systematic exclusion” prong where he
presented a hypothesis as to the cause of Hispanic underrepre-
sentation but “presented no evidence to support this sugges-
tion.” Id. at 1141.
[8] In this case, Rodriguez has claimed that systematic
exclusion of Hispanics results from the Fresno Division’s use
of voter registration lists as the sole source of names for its
master jury wheel. In support of this contention, Rodriguez
offered a 1992 declaration prepared for another case by Pro-
fessor J. Dennis Willigan, a sociology professor involved in
several jury underrepresentation cases, who asserted that the
practice of selecting jurors from voter registration lists under-
represents racial and ethnic minorities. Rodriguez also cited
People v. Harris, in which a plurality of the California
Supreme Court concluded that a defendant had satisfied the
“systematic exclusion” prong of Duren with a sufficient
showing that underrepresentation results from the use of voter
registration lists as the sole source of names for the jury pool.
679 P.2d at 446 (plurality opinion). Relatedly, the concur-
rence in Harris alluded to “published studies which point to
the exclusive reliance upon voter registration lists as a likely
source of racial and ethnic disparity in the composition of
juries.” Id. at 455 (Grodin, J., concurring in the judgment).13
13
In People v. Sanders, the California Supreme Court refused to read
Harris as standing for the proposition that “sole reliance on voter registra-
UNITED STATES v. RODRIGUEZ-LARA 11615
However, Rodriguez was not able to provide evidence linking
sole reliance on voter registration lists for jury selection to
current systematic exclusion of Hispanics in the Fresno Divi-
sion. Rodriguez’s failure of proof leaves his prima facie case
unfinished.
2. Appointment of an Expert
If the issue before us were the underlying question of
whether Rodriguez had made out a prima facie case for dis-
missing his indictment on Sixth Amendment grounds, on this
record we would have to answer no. But the question we must
answer is whether Rodriguez was entitled to have expert
assistance to help him establish the underlying claim.
[9] Rodriguez’s failure to complete his prima facie case is
not fatal to his appeal of the denial of his motion to have an
tion lists in assembling the master jury list is constitutionally prohibited.”
797 P.2d at 570-71. The court distinguished Harris on the ground that the
court’s understanding of the prima facie case for a fair cross-section viola-
tion had changed since that decision; under the California Supreme
Court’s new interpretation, a defendant had to demonstrate that selection
procedures were themselves constitutionally impermissible or being
applied in a constitutionally objectionable manner. Id. at 571-72. As the
California Supreme Court’s revised understanding of the prima facie case
under Duren is not a view our circuit has shared, the Harris plurality’s
recognition of the exclusionary effect of the use of voter registration lists
as the sole source for jury pools retains some persuasive value for us in
the following limited sense: Harris suggests that Rodriguez’s theory about
the effect of sole reliance on voter registration lists is quite plausible rather
than fanciful.
It bears noting that challenges to the use of voter registration lists as the
sole source for jury pools have not met with success in the federal courts.
See generally United States v. Cecil, 836 F.2d 1431, 1445-49 (4th Cir.
1988) (en banc) (collecting cases and discussing the history of such chal-
lenges in the courts). However, defendants’ failure to support such chal-
lenges in the past does not preclude the possibility that Rodriguez may do
so here. For the purposes of this case, the important point is that there is
some empirical and legal support for Rodriguez’s theory, even if it has not
generally been a successful one.
11616 UNITED STATES v. RODRIGUEZ-LARA
expert appointed. Indeed, conditioning the entitlement to an
expert on a defendant’s establishing a prima facie case would
make little sense: such a rule would provide assistance to a
defendant only upon a demonstration that he does not require
it. Instead, we must determine whether (1) “reasonably com-
petent counsel would have required the assistance of the
requested expert for a paying client,” and (2) the defendant
“was prejudiced by the lack of expert assistance.” Nelson, 137
F.3d at 1101 n.2 (citation and internal quotation marks omit-
ted).
[10] Under the circumstances presented here, we conclude
that both prongs of the test are satisfied. Although Rodriguez
has not established a prima facie case for a fair cross-section
violation, he has made a substantial showing sufficient to war-
rant further inquiry. Rodriguez has shown that Hispanics are
substantially underrepresented in the Fresno Division jury
pool, and Rodriguez has alleged (with some support, though
no particularized evidence) a plausible theory of systematic
exclusion: specifically, that the use of voter registration
records as the sole source of names for the Fresno Division
jury pool systematically underrepresents Hispanics. An expert
would be able to investigate whether Hispanics have been
systematically excluded and potentially provide the necessary
information to complete Rodriguez’s prima facie case. This is
precisely the type of situation in which reasonably competent
counsel would require the services of an expert for a paying
client: the defendant has alleged a dispositive defense that is
supported in substantial measure by the evidence available but
which cannot be fully developed without the help of an
expert.
[11] In order to demonstrate that the district court abused
its discretion in failing to appoint an expert, Rodriguez must
also show by clear and convincing evidence that the court’s
failure to do so prejudiced him. No Ninth Circuit case appears
UNITED STATES v. RODRIGUEZ-LARA 11617
to have addressed the prejudicial effect on a fair cross-section
claim of a district court’s failure to appoint an expert.14
If prejudice means that the defendant must show his
defense would have been successful, then obviously Rodri-
guez’s claim must fail. However, such a narrow understand-
ing would put nearly all defendants in a catch-22 and reduce
the statutory provision for federal funding for expert services
to an empty promise: the expert’s services would only be
available upon the showing of a meritorious defense, and the
defense could only be shown with the help of an expert.
In the few cases in which we have had occasion to elabo-
rate on the meaning of the standard of 18 U.S.C. § 3006A(e),
we have rejected this narrow understanding. In United States
v. Hartfield, 513 F.2d 254 (9th Cir. 1975), abrogated on other
grounds, United States v. Sneezer, 900 F.2d 177, 179 n.3 (9th
Cir. 1990), for example, we held that the denial of defendant’s
motion to obtain an electroencephalogram (EEG) was an
abuse of discretion “because the only defense available to
[Hartfield] was a defense that turned on his mental condition.”
Id. at 258. We did not require the defendant to show that an
EEG would have provided a successful defense. Similarly, in
United States v. Bass, 477 F.2d 723 (9th Cir. 1973), we held
that the district court’s failure to appoint a psychiatric expert
for the defense was an abuse of discretion because the defen-
dant’s “family and personal history indicated that an insanity
defense might be appropriate.” Id. at 725. In that case, the
defendant was entitled to an expert notwithstanding our
acknowledgment that “we cannot predict the outcome of an
examination conducted by [the requested] expert.” Id. at 726.
By contrast, in United States v. Labansat, 94 F.3d 527 (9th
14
In the published cases involving the denial of an expert in this context,
panels have denied relief based on the defendant’s failure to show that rea-
sonably competent counsel would have required the services of an expert,
not on the basis of a failure to demonstrate prejudice. See Nelson, 137 F.3d
at 1101 n.2; Suttiswad, 696 F.2d at 649; Armstrong, 621 F.2d at 956.
11618 UNITED STATES v. RODRIGUEZ-LARA
Cir. 1996), we held that a bank robbery defendant was not
prejudiced by the district court’s refusal to authorize public
funding for the hiring of an expert on eyewitness identifica-
tion to discredit prosecution witnesses, because the evidence
against the defendant was overwhelming: numerous witnesses
identified the defendant as the robber, the defendant’s vehicle
was at the scene of the crime, the gloves worn by the robber
were found in the defendant’s possession, and the jury saw
bank surveillance photographs of the robber, who was identi-
fied as the defendant by his own sister. Id. at 529-30.
[12] These cases illustrate that the function of the prejudice
inquiry is to prevent appellate courts from second-guessing
district judges in cases in which the requested services could
not have mattered to the outcome, not to force the defendant
to prove that the requested expenditure would necessarily
have produced a different result. Thus, while the wealth of
evidence against the defendant in Labansat demonstrated that
the denial of expert assistance did not prejudice him, the
court’s inability to predict what the expert services requested
in Hartfield and Bass would reveal did not foreclose relief in
those cases.
[13] The circumstances here resemble those in Hartfield
and Bass. Like the defendants in those cases, Rodriguez has
requested expert services in furtherance of a claim that would,
if meritorious, change the outcome of the case. As in Hart-
field and Bass, we cannot say for certain whether the expert
services, if provided, would vindicate the defendant’s claim.
But such uncertainty was not fatal to the defendants’ respec-
tive appeals in those cases, and we therefore conclude that it
is not fatal here. Of course, defendants should not be permit-
ted to delay proceedings and sap valuable judicial resources
with frivolous allegations of claims or defenses that tend to
require expert help to establish. Rodriguez’s fair cross-section
claim, however, is far from a shot in the dark: Rodriguez has
established two of the three prongs of the Duren prima facie
case and alleged a plausible theory in support of the third. We
UNITED STATES v. RODRIGUEZ-LARA 11619
hold that, under the circumstances, it was an abuse of discre-
tion not to grant him the expert help he requested to try to
make out his fair cross-section claim.
[14] We express no opinion as to the likelihood that Rodri-
guez’s fair cross-section claim will ultimately succeed, as we
do not know what a study of the matter will reveal. We there-
fore decline currently to vacate Rodriguez’s conviction. We
reverse only the denial of his motion to have an expert
appointed, and we remand for further proceedings. Once the
expert has done his or her work, the district court will be in
a position to reassess Rodriguez’s underlying motion to dis-
miss the indictment. If Rodriguez establishes the prima facie
case, the burden will shift to the government in accordance
with Duren. If, at that point, the government cannot carry its
burden, then the district court must grant Rodriguez’s motion
to dismiss the indictment and set aside the conviction.15
B. Application of Sentencing Guidelines on Acceptance
of Responsibility
A district court’s application of the federal Sentencing
Guidelines is reviewed de novo. United States v. Nielsen, 371
F.3d 574, 582 (9th Cir. 2004).
Rodriguez argues that he was entitled to an additional one-
level reduction in his sentencing range because of his accep-
tance of responsibility. The Guidelines provide for a two-level
reduction for acceptance of responsibility, see U.S. Sentenc-
ing Guidelines Manual § 3E1.1(a) (2002), and an additional
one-level reduction for defendants at level 16 or greater where
the defendant has assisted authorities by “(1) timely providing
complete information to the government concerning his own
15
Because our analysis of the fair cross-section claim has led us to con-
clude that the district court should have appointed an expert, we need not
consider whether Rodriguez’s showing on his equal protection claim also
entitled him to the requested expert.
11620 UNITED STATES v. RODRIGUEZ-LARA
involvement in the offense,” or “(2) timely notifying authori-
ties of his intention to enter a plea of guilty,” or both, id.
§ 3E1.1(b).
A district court commits reversible error if it fails to apply
the additional one-level reduction where the defendant has
satisfied either subsection of U.S.S.G. § 3E1.1(b). United
States v. Ruelas-Arreguin, 219 F.3d 1056, 1062 (9th Cir.
2000). In applying these Guideline provisions, “a judge can-
not rely upon the fact that a defendant refuses to plead guilty
and insists on his right to trial as the basis for denying an
acceptance of responsibility adjustment.” United States v.
Ochoa-Gaytan, 265 F.3d 837, 842 (9th Cir. 2001).
This case is unusual. Before the initiation of his prosecu-
tion, Rodriguez told an immigration officer that he was a citi-
zen of Mexico, that he had previously been deported from the
United States, and that he did not have official permission to
return here. Rodriguez thus admitted all the elements of a vio-
lation of 8 U.S.C. § 1326, the crime for which he was con-
victed. See Ninth Circuit Model Criminal Jury Instructions 9.5
(2003). Nonetheless, Rodriguez exercised his right to require
the government to carry its burden to prove his guilt. At sen-
tencing, the district court gave a two-level reduction for
acceptance, but declined to give a third level “because we
went to trial, and we didn’t have [the acceptance of responsi-
bility] timely.” Despite the district court’s statement to Rodri-
guez that the court was “not going to hold it against you in
any way [that] you went to trial,” this is exactly what the
court did.
[15] Because Rodriguez “timely provid[ed] complete infor-
mation to the government concerning his own involvement in
the offense,” U.S. Sentencing Guidelines Manual
§ 3E1.1(b)(1) (2002), he was entitled to the additional one-
level reduction for acceptance of responsibility. Ruelas-
Arreguin, 219 F.3d at 1062. The district court erred in not
UNITED STATES v. RODRIGUEZ-LARA 11621
granting that reduction and in penalizing Rodriguez for going
to trial. The government concedes as much.
Because Rodriguez did not object at sentencing, the panel
must review for plain error, which is “(1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v.
Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (cita-
tion and internal quotation marks omitted). “If these three
conditions of the plain error test are met, an appellate court
may exercise its discretion to notice a forfeited error that (4)
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation and internal quotation
marks omitted).
As we have explained, the district court erred when it gave
Rodriguez two levels instead of three for acceptance of
responsibility. The district court’s error was plain, because it
is contrary to the law at the time of Rodriguez’s appeal. Id.(citation and internal quotation marks omitted). We also con-
clude that Rodriguez’s substantial rights were affected:
because he was entitled to a lower Guideline range than that
under which he was actually sentenced, the outcome of Rodri-
guez’s sentencing was affected such that our confidence in
that outcome is undermined. Cf. Glover v. United States, 531
U.S. 198, 202-04 (2001) (holding, in the ineffective-
assistance-of-counsel context, that any increase in a defen-
dant’s sentence is prejudicial); United States v. Dominguez
Benitez, 124 S. Ct. 2333, 2339-40 (2004) (likening the plain-
error “substantial rights” inquiry to the prejudice standard
applicable to, among other things, claims of ineffective assis-
tance of counsel).16
16
Our substantial rights analysis is unaffected by the advisory nature of
the Sentencing Guidelines in the wake of United States v. Booker, 125
S. Ct. 738 (2005), for we have held that a pre-Booker misapplication of the
Guidelines still requires that the resulting sentence be vacated, notwith-
standing the transformations in sentencing law wrought by Booker. See
Ameline, 409 F.3d at 1085-86; United States v. Kimbrew, 406 F.3d 1149,
1154 (9th Cir. 2005).
11622 UNITED STATES v. RODRIGUEZ-LARA
Finally, we conclude that the error seriously affected the
fairness, integrity, or public reputation of the proceedings,
because the district court penalized Rodriguez for exercising
his constitutional right to go to trial. The unfairness of penal-
izing a defendant for exercising his legal rights has long been
recognized in our national jurisprudence and needs no elabo-
ration. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 724
(1969); Griffin v. California, 380 U.S. 609, 614-15 (1965). It
is equally clear that public confidence in the justice system is
jeopardized by any such practice, in which basic rights are
undercut by the very institution charged with their protection.
Cf. Olmstead v. United States, 277 U.S. 438, 485 (1928)
(Brandeis, J., dissenting) (“Our government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole
people by its example.”) We therefore have no difficulty con-
cluding that the sentencing error in Rodriguez’s case, though
a small one, seriously affected the fairness, integrity, or public
reputation of the judicial proceeding.
[16] We hold that the district court’s failure to give the
third level of the acceptance-of-responsibility reduction was
plain error. Rodriguez’s sentence must be vacated.
C. Prior Convictions and Apprendi
[17] Rodriguez also claims his sentence is unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny, because the fact of his prior conviction for transport
of methamphetamine, which resulted in a 16-level enhance-
ment of Rodriguez’s sentencing range, was not admitted by
Rodriguez or proved to a jury beyond a reasonable doubt.
Rodriguez’s argument is foreclosed by United States v. Smith,
390 F.3d 661 (9th Cir. 2004), which held that Blakely v.
Washington, 542 U.S. 296 (2004), did not disturb the “prior
conviction” exception to the Apprendi rule. See Smith, 390
F.3d at 667. This understanding was confirmed in Booker,
which repeated the “prior conviction” exception in its rendi-
tion of the Apprendi rule. See 125 S. Ct. at 756. Finally, Shep-
UNITED STATES v. RODRIGUEZ-LARA 11623
ard v. United States, 125 S. Ct. 1254 (2005), does not counsel
a different result, as the district court in this case did not need
to resolve a “disputed fact . . . too far removed from the con-
clusive significance of a prior judicial record.” Id. at 1262(plurality portion). In this case, Rodriguez’s enhancement was
supported by the abstract of judgment and charging document
for the prior conviction.
CONCLUSION
The issue of jury representativeness is one that goes to the
heart of one of our nation’s fundamental judicial institutions.
“For racial discrimination to result in the exclusion from jury
service of otherwise qualified groups not only violates our
Constitution and the laws enacted under it but is at war with
our basic concepts of a democratic society and a representa-
tive government.” Smith v. Texas, 311 U.S. 128, 130 (1940)
(footnote omitted). If our system of jury selection results in
the systematic exclusion of a distinctive group, we have a
responsibility to discover the problem and remedy it. As a
matter of basic fairness, our Constitution promises individuals
charged with crimes that their juries will represent a fair
cross-section of the community. Rodriguez raises a serious
claim that the our system is not keeping that promise; without
further study, we cannot know for sure that he is wrong.
We hold that the district court abused its discretion in deny-
ing Rodriguez’s motion to have an expert appointed, and that
the district court committed plain error by giving a two-level
rather than a three-level reduction for Rodriguez’s acceptance
of responsibility.
We therefore reverse the district court’s denial of Rodri-
guez’s motion to have an expert appointed, vacate Rodri-
guez’s sentence, and remand for further proceedings
consistent with this opinion, including resentencing, the
appointment of an expert, and the subsequent reconsideration
of Rodriguez’s motion to dismiss the indictment.
REVERSED AND REMANDED; SENTENCE
VACATED.
11624 UNITED STATES v. RODRIGUEZ-LARA
APPENDIX: CALCULATION OF ABSOLUTE
DISPARITY FOR HISPANIC REPRESENTATION IN
FRESNO DIVISION JURY POOL
Age-eligible population for the eleven Fresno Division
counties (2000 Census):
Total Hispanic
Population, Population,
age 18+ age 18+
Fresno 542,982 214,927
Tulare 243,769 109,083
Merced 137,870 55,884
Kings 91,933 736,259
Kern 450,266 150,738
Madera 86,642 33,164
Stanislaus 307,775 83,599
Inyo 13,569 1,338
Tuolumne 43,201 3,319
Mariposa 13,427 945
Calaveras 31,306 1,769 Percent
Fresno Division Hispanic:
Total 1,962,740 691,025 35.21%
Representation in the 2003 Qualified Jury Wheel:
Percent
Percent of those
Total of Total reporting
Hispanic 971 15.77% 20.66%
Non-Hispanic 3728 60.54% 79.34%
Unknown 1459 23.69% --
Total 6158 100% --
Total reporting ethnicity 4699 776.31% 100%
Percent Hispanic of 18+ Population 35.21
– Percent Hispanic in Jury Pool – 20.66
= Absolute Disparity = 14.55%