USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING MOTION TO DISMISS BECAUSE OF GRAND JURY
COMPOSITION
Before the Court at Docket 525 is Defendant John Pearl Smith, II’s Motion
to Dismiss the Superseding Indictment Because the Grand Jury Did Not Represent
a Fair Cross Section of the Community. Mr. Smith filed a declaration of defense
expert Jeffrey Martin in support of the motion at Docket 525-1. The government
responded in opposition at Docket 547. Mr. Smith filed a reply at Docket 551.
The Court held an evidentiary hearing on the motion on January 9, 2020,
and heard testimony from Mr. Martin.1 After the evidentiary hearing, each party
filed a supplemental brief.2 The government filed an additional exhibit with its
1 Docket 639 (minutes of evidentiary hearing); Docket 642 (transcript of evidentiary hearing).
Mr. Smith waived his physical appearance at the evidentiary hearing and instead appeared by
telephone. Docket 610.
2 Docket 650 (government’s supplemental brief); Docket 653 (Mr. Smith’s supplemental brief).
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supplemental brief at Docket 654. The Court has struck the government’s exhibit
at Docket 654.3
The grand jurors summoned for the grand jury in this case were selected
under the District of Alaska’s 2015 Jury Plan. Mr. Smith challenges the
composition of the grand jury in this case on three grounds. First, he alleges that
the lack of current demographic information regarding each of the five jury divisions
in the district violates the Jury Selection and Service Act (JSSA).4 Second, he
contends that the jury clerk did not comply with the district’s 2015 Jury Plan
because she used an inaccurate proration formula for the five divisions when
summoning grand jurors.5 Third, he maintains that the incorrect implementation of
the 2015 Jury Plan caused systemic issues that resulted in African Americans and
American Indians/Alaska Natives to be underrepresented in the grand jury venire
in violation of the Sixth Amendment and the JSSA.6
I. There is sufficient information to assess the district’s compliance with
the Jury Selection and Service Act.
The JSSA requires that district courts utilize jury plans that ensure the
random selection of a fair cross section of people residing in the community.7 The
3 Docket 682.
4 Docket 525 at 5–6.
5 Docket 525 at 6–8.
6 Docket 525 at 8–10.
7 28 U.S.C. § 1863(a).
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JSSA further requires that “[e]ach district court shall submit a report on the jury
selection process within its jurisdiction to the Administrative Office of the United
States Courts in such form and at such times as the Judicial Conference of the
United States may specify.”8 Mr. Smith asserts that the forms used by the jury
clerk to submit information to the Administrative Office (known as AO-12 forms)
“do not describe the current demographic information for each the five divisions,”
and that “[t]his lack of essential information violates the JSSA and frustrates its
goals because there is no way for Smith to enforce his Sixth Amendment right to
a fair and impartial Grand Jury pool composed of a cross-section of the
community.”9
A JSSA challenge “is allowed only for ‘substantial failure to comply with the
Act.’”10 “Technical violations are insubstantial where they do not frustrate the Act’s
goals of obtaining jury lists that are a cross-section of the community, allocating
jury duty fairly among the citizenry, and determining disqualifications, excuses,
exemptions and exclusions on the basis of objective criteria only.”11 Even
assuming that there is inadequate information on the AO-12 forms about the
demographics of the registered voters in each division, this would not establish a
8 28 U.S.C. § 1863(a).
9 Docket 525 at 6.
10 United States v. Erickson, 75 F.3d 470, 477 (9th Cir. 1996) (quoting United States v. Nelson,
718 F.2d 315, 318 (9th Cir. 1983)).
11 Id.
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constitutional or statutory violation, particularly as it is undisputed that the district
has submitted the AO-12 report on the form and in the manner required by the
Judicial Conference.12 Indeed, as the defense recognized in its post-hearing brief,
Mr. Martin “pointed out that the population sampling done in the [American
Community Survey] is a sufficient sample size for an accurate assessment of the
population>”13 Mr. Martin also testified at the hearing that he regularly relied on the
AO-12 forms in his jury composition work.14 The defense has failed to establish
that the district’s use of the AO-12 forms constituted a substantial failure to comply
with the JSSA.
II. An inaccurate proration formula was used to summon the grand jurors.
The 2015 Jury Plan contemplates five master jury wheels, one from each of
the five divisions in the district: Anchorage, Fairbanks, Juneau, Ketchikan, and
Nome.15 The jury plan requires that grand juries be drawn from each of the five
divisions “on a pro rata basis according to the number of voters in each division.”16
Mr. Smith asserts that the jury clerk used an incorrect proration formula, resulting
in an incorrect number of grand jurors being summoned from each of the five
12 See 28 U.S.C. § 1863(a).
13 Docket 653 at 5.
14 Docket 642 at 81–83.
15 Docket 525-2 at 4, § 1.2(b) (D. Ak. 2007 Plan for Random Selection of Grand and Petit
Jurors).
16 Docket 525-2 at 9, § 5.1(b) (D. Ak. 2007 Plan for Random Selection of Grand and Petit
Jurors).
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divisions.17 For purposes of this motion, the Court accepts the proration
calculations of Mr. Martin as valid and accurate. His calculation on this issue were
as follows:18
Division Proration formula if
jury plan proration
formula used
Proration formula
jury clerk was
instructed to use
Actual composition
of 125 summoned
grand jurors
Anchorage 68.69% of grand jury 50.00% 52.80%
Fairbanks 16.81% 45.00% 41.60%
Juneau 7.94% 2.00% 3.20%
Ketchikan 3.13% 2.00% 1.60%
Nome 3.43% 1.00% 0.80%
The defense has established that the district did not apply the correct
proration formula when summoning the grand jurors in this case. The issue is
whether this error constitutes a substantial failure to comply with the Constitution
and the JSSA.19 As the defense acknowledges, “the substantial failure
requirement seems to get collapsed into the merits of the fair cross-section
requirement.”20 Thus, this Court turns to that analysis.
17 Docket 525 at 7–8.
18 Docket 525-1 at 3, ¶¶ 26, 27, 28.
19 28 U.S.C. § 1867(d) (“If the court determines that there has been a substantial failure to
comply with the provisions of this title in selecting the grand jury, the court shall stay the
proceedings pending the selection of a grand jury in conformity with this title or dismiss the
indictment, whichever is appropriate.”).
20 Docket 525 at 9.
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III. The disparities between the racial demographics of the eligible jurors
in Alaska and the grand jury venire do not constitute a constitutional
violation or JSSA violation.
Mr. Smith maintains that the district’s use of an incorrect proration formula
“resulted in a grand jury that did not represent a cross-section of the community.”21
The Court accepts Mr. Martin’s calculations on this topic as accurate for purposes
of this motion. He calculated the racial demographics as follows:
District-wide
demographics of
all eligible
jurors22
District-wide
demographics of
selected jury
pool23
Demographics of
125 selected
potential grand
jurors24
White 71.36% 78.40% 83.06%
African American 3.37% 1.67% 1.61%
American
Indian/Alaska Native
13.21% 9.36% 5.65%
Asian 4.06% 3.13% 0.81%
Hispanic/Latino 5.29% N/A25 N/A
Native
Hawaiian/Pacific
Islander
0.88% 0.76% 0.81%
Other 1.08% 2.06% 4.84%
Multiracial 6.04% 4.62% 3.23%
21 Docket 525 at 8.
22 Docket 525-1 at 2, ¶ 21.
23 Docket 525-1 at 4, ¶ 39. This group consists of the 32, 557 summoned jurors who returned a
preliminary questionnaire. Docket 642 at 26; see also Docket 525-1 at 4, ¶¶ 34-38.
24 Docket 525-1 at 6, ¶ 52. One potential grand juror did not indicate their racial identification.
25 Mr. Martin’s calculations do not include any reference to Hispanic/Latino demographics as
related to the selected jury pool or the 125 selected potential grand jurors.
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The Sixth Amendment and the JSSA require that the venire from which a
jury is chosen be comprised of a fair cross-section of the community.26 “The 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.”27 In
Duren v. Missouri, the Supreme Court held that a defendant must show three
things to establish a prima facie violation of the fair-cross-section requirement:
(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.28
However, “[t]he fair-cross-section principle must have much leeway in
application.”29 The parties and the Court agree that African Americans and
American Indians/Alaska Natives are distinctive groups in the community. Thus,
the parties’ arguments focus on the second and third Duren requirements; the
Court addresses the third requirement first.
A. The third Duren requirement: Was there a systematic exclusion of
a distinctive group?
26 Taylor v. Louisiana, 419 U.S. 522, 529–30 (1975).
27 United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985).
28 439 U.S. 357, 364 (1979).
29 Berghuis v. Smith, 559 U.S. 314, 321 (2010) (alteration in original) (quoting Taylor, 419 U.S.
at 537–38).
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The Court recognizes that the district court did not apply the correct proration
formula to summon the grand jury in this case. Going forward, the Court has
conferred with the Clerk of Court and the jury clerk in an effort to ensure that future
grand juries are selected using the correct proration formula.
However, Mr. Smith has not shown that the use of incorrect proration
formulas was directed at a distinct group. Although “disproportionate exclusion of
a distinctive group from the venire need not be intentional to be unconstitutional,”30
from the Court’s perspective, the use of the incorrect proration formula does not
raise the same systematic concerns as the intentional exclusion of a distinctive
group. “[T]he essence of randomness is the absence of any arbitrary attempt to
exclude a class of persons from the jury.”31 Here, there is no indication that the
district’s proration formula was used in an attempt to exclude a distinctive group.32
The Court does not find that that the underrepresentation of African Americans and
American Indians/Alaska Natives is “inherent in the particular jury-selection process” used
to select the grand jury in this case.33 For this reason, the defense has not established
the third requirement of the Duren test.
30 Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004) (holding that Fresno County’s
failure to issue summonses to prospective jurors who failed to return preliminary questionnaires
did not cause a systematic exclusion of Hispanics in the jury selection process).
31 McClendon v. United States, 587 F.2d 384, 387 (8th Cir. 1978).
32 Cf. Vasquez v. Hillery, 474 U.S. 254, 258, 262 (1986) (noting that “intentional discrimination in
the selection of grand jurors is a grave constitutional trespass” in a case where African
Americans had never served on a grand jury in the history of the county).
33 Randolph, 380 F.3d at 1142 (emphasis in original) (quoting Duren, 439 U.S. at 366).
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B. The second Duren requirement: Does the representation of
distinctive groups in the grand jury demonstrate a substantial
disparity that constitutes a constitutional or statutory violation?
Assuming the use of the proration formula resulted in a systematic exclusion
of distinctive groups so as to have met the third Duren requirement, the Court next
considers whether the use of the incorrect formula caused a substantial disparity
between the composition of the grand jury and the population in the community.
In determining whether the representation of a distinctive group is fair and
reasonable, “[c]ourts have employed a number of analytical methods . . . including
the absolute disparity test, the absolute impact test, the comparative disparity test,
and standard deviation analysis.”34 The parties have briefed and the Court has
reviewed Ninth Circuit cases discussing the shortcomings of the various analytical
tools. Here, Mr. Smith’s expert compared the demographics of the jury-eligible
population in the district with the grand jurors actually summoned and seated in
this case using the absolute disparity and comparative disparity methods along
with standard deviation analysis. For purposes of ruling on this motion, the Court
adopts the calculations of Mr. Martin under each of these methods as accurate.
Mr. Smith maintains that each of these methods demonstrates a constitutionally
significant underrepresentation of African Americans and American Indians/Alaska
Natives on the grand jury.35
34 United States v. Hernandez-Estrada, 749 F.3d 1154, 1160 (9th Cir. 2014) (en banc).
35 Docket 525 at 10–12; Docket 551 at 2–6.
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1. Absolute disparity
The absolute disparity method assesses the difference between the
percentage of a distinct group in a jury pool and the same group in the population.36
Using that method, Mr. Martin concluded that the absolute disparity for African
Americans is 1.70% underrepresentation and for American Indians/Alaska Natives
is 3.85% underrepresentation within the selected jury pool.37 Within the smaller
pool of 125 selected as potential grand jurors, the absolute disparity for African
Americans is 1.76% underrepresentation and for American Indians/Alaska Natives
is 7.57% underrepresentation.38 “Although no bright-line rule exists as to what
level of absolute disparity constitutes a constitutional or Jury Selection Act
violation, [the Ninth Circuit] ‘ha[s] declined to find underrepresentation of a
distinctive group where the absolute disparity was 7.7% or lower.’”39 And yet, as
the Ninth Circuit has recognized, under the absolute disparity method, “if a minority
group makes up less than 7.7% of the population in the jurisdiction in question,
that group could never be underrepresented in the jury pool, even if none of its
36 Docket 525-1 at 4, ¶ 41.
37 Docket 525 at 11; Docket 525-1 at 5, ¶ 42. This group consists of the 32, 557 summoned
jurors who returned a preliminary questionnaire. Docket 642 at 26; see also Docket 525-1 at 4,
¶¶ 34-38.
38 Docket 525-1 at 6, ¶¶ 53, 54.
39 Hernandez-Estrada, 749 F.3d at 1161 (quoting United States v. Rodriguez–Lara, 421 F.3d
932, 943–44 (9th Cir. 2005)).
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members wound up on the qualified jury wheel.”40 Nonetheless, in accordance
with Ninth Circuit precedent, Mr. Smith has not demonstrated a constitutional or
statutory violation using the absolute disparity method.
2. Comparative disparity
Because the absolute disparity method can overlook some minority groups,
Mr. Smith asserts that “it is more appropriate to use Comparative Disparity” when
considering underrepresentation in this case.41 “[T]he comparative disparity test
illustrates, in a general way, the comparative differences in a manner that takes
population size into consideration.”42 Comparative disparity is determined by
taking the absolute disparity and dividing that by the percentage of the distinct
group in the total eligible population.43 Using the comparative disparity test, for the
approximately 33,000 summoned individuals who returned a questionnaire, Mr.
Martin determined that African Americans were 50.39% underrepresented44 and
American Indians/Alaska Natives were 29.14% underrepresented.45
40 Id. (emphasis in original) (citing Rodriguez–Lara, 421 F.3d 932, 944 n. 10).
41 Docket 525 at 11.
42 Hernandez-Estrada, 749 F.3d at 1163.
43 Id. at 1162.
44 Docket 525-1 at 5, ¶ 46. Mr. Martin calculated the absolute disparity for African Americans to
be 1.70% underrepresentation; to determine comparative disparity, this figure is divided by
3.37%, which is the percentage of the entire eligible population that is African American. See
Docket 525-1 at 2, 4, ¶¶ 21, 39; Docket 642 at 54.
45 Docket 525-1 at 5, ¶ 46. Mr. Martin calculated the absolute disparity for American
Indians/Alaska Natives to be 3.85% underrepresentation; to determine comparative disparity,
this figure is divided by 13.21%, which is the percentage of the entire eligible population that is
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As for the 125 people actually summoned as potential grand jurors for this
case, the comparative disparity for African Americans was 52.15%
underrepresentation and for American Indians/Alaska Natives was 57.27%
underrepresentation.46 According to Mr. Martin, this means that “we’re missing
about half the group we would have expected.”47
As the Ninth Circuit has recognized, “one problem with the comparative
disparity test is that it can overstate the underrepresentation of a group that has a
small population percentage.”48 For this reason, the government contends that the
comparative disparity test is inappropriate in this case.49 Moreover, the
government maintains that “the 50% comparative disparity suggested by the
defendants’ [sic] statistics does not amount to substantial underrepresentation.”50
The Court finds that, as applied here, the comparative disparity rates ranging
from 29.14% to 57.27% fall within the level of comparative disparity that other
circuit courts have held to be permissible, even as those courts recognized the
shortcomings of the comparative disparity methodology. For example,
American Indians/Alaska Native. See Docket 525 at 11; Docket 525-1 at 5, ¶¶ 21, 39.]
46 Docket 525-1 at 6, ¶¶ 53–54; Docket 642 at 48.
47 Docket 642 at 48.
48 Hernandez-Estrada, 749 F.3d at 1163. The Ninth Circuit explained that if “a group constitutes
.1% of the population, with no representation in the jury pool[,] [t]he comparative disparity of that
group would be 100%. Few would argue that the absence of a group representing just 0.1% of
the population violates the fair cross-section requirement . . . .” Id.
49 Docket 547 at 7–8.
50 Docket 547 at 8.
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comparative disparities of 54.49%,51 58.39%,52 and 59.84%53 have been found
permissible by other circuits. Moreover, the Ninth Circuit, in dicta, has permitted a
comparative disparity of 52.9%.54 Mr. Smith points to no court that has dismissed
an indictment because a distinctive group in the grand jury had a comparative
disparity in this range. Here, where the distinctive groups in question make up a
small portion of the district’s population, comparative disparities in the high-50%
range are acceptable. Accordingly, the Court finds that the underrepresentation
that Mr. Martin calculated using the comparative disparity method does not
establish a violation of the Sixth Amendment or the JSSA.
3. Standard deviation analysis
Finally, the standard deviation analysis looks at both the absolute disparity
and comparative disparity in combination in an effort to “determine whether the
demographics of the jury list diverge substantially enough from the population
51 Howell v. Superintendent Rockview SCI, 939 F.3d 260, 268–69 (3d Cir. 2019) (noting absolute
disparity of 5.83% for African Americans in jury venire, while census data indicated that 10.7%
of adult population in county was African American).
52 United States v. Chanthadara, 230 F.3d 1237, 1256–57 (10th Cir. 2000) (noting absolute
disparity of 1.60% for Hispanics within master jury wheel, while 2.74% of adult population was
Hispanic and holding that a comparative disparity of 58.39% did not establish a prima facie
violation where the group in question only made up 2.92% of the population).
53 United States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998) (noting absolute disparity of
0.51% for Asians among veniremen, while 1.27% of adult population was Asian, but noting that
“considering the small size of each of the groups in relation to the larger community, it is not
surprising that the comparative disparity numbers are large.”).
54 United States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989) (noting absolute disparity
of 2.05% for Hispanics within master jury wheel, while 3.87% of total population was Hispanic).
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demographics that the difference is not the product of chance but is systematic.”55
Using this analysis, Mr. Martin determined that the percentage of African
Americans in the jury pool differed from the percentage of African Americans in the
population by 13 standard deviations and the percentage of American Indians/
Alaska Natives in the jury pool differs from the percentage of these groups in the
population by 16 standard deviations.56 It is unclear how Mr. Martin combined the
two other methods to arrive at these calculations, but the Court accepts them as
accurate for purposes of ruling on this motion. Mr. Martin found these deviations
statistically significant.57
The Court finds that the disparities shown by the standard deviations are
likely caused at least in part by the Court’s use of the incorrect proration formula.58
However, a “challenging party must establish not only statistical significance, but
also legal significance.”59 Given that disparities calculated under both the absolute
disparity method and comparative disparity method fall within the ranges upheld
55 Docket 525-1 at 6, ¶ 49.
56 Docket 525-1 at 6, ¶¶ 50, 51.
57 Docket 525-1 at 6, ¶¶ 50, 51. Mr. Martin explained that “[i]f there is no systematic under or
over representation of a distinctive group, the divergence of demographics should exceed 2
standard deviations only approximately 5% of the time while the divergence of demographics
should exceed 3 standard deviations only approximately 0.5% of the time.” Docket 525-1 at 6,
¶ 49.
58 Docket 642 at 56 (testimony of Mr. Martin explaining that while the proration formula is “one
part of skewing the demographic numbers,” the standard deviation analysis is also affected by
“not splitting jurors in half” and “the small number [of grand jurors] that we’re picking”).
59 Hernandez-Estrada, 749 F.3d 1154 at 1165
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by the Ninth Circuit, the defense has not demonstrated that this statistical
deviation, to the extent it was caused by the district’s use of the wrong formula, is
of legal significance.60
CONCLUSION
Mr. Smith has not established a prima facie case that any
underrepresentation of a distinct group constitutes a substantial violation of the
JSSA or that the three-part Duren test has been met.61 For the foregoing reasons,
IT IS ORDERED that the Motion to Dismiss at Docket 525 is DENIED.
DATED this 5th day of May, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
60 See United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980) (declining to focus on
standard deviation disparity when the absolute disparities demonstrated by the defendant did
not make out a constitutional violation); United States v. Orange, 447 F.3d 792, 799 (10th Cir.
2006) (declining to consider “other statistical measures . . . when the existing measures,
absolute and comparative disparity, fail to establish a prima facie case under existing law.”).
61 Only if a defendant establishes a prima facie case does the burden shift to the government to
demonstrate 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.” Duren, 439 U.S. at 367–38.
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