USA v. Olivares et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LUIS OLIVARES,
Defendant.
CR. 10-50118-01-JLV
ORDER DENYING MOTION TO
QUASH JURY PANEL
On December 8, 2014, defendant Luis Olivares filed a motion to quash
the jury panel in this case. 	(Docket 1104). 	On December 9, 2014, the
United States responded and requested that the court deny defendant’s
motion to quash the jury panel. 	(Docket 1107). 	Later on December 9, 2014,
outside the presence of the jury, the court received oral argument from
defendant and the United States.
The Sixth Amendment of the United States Constitution entitles criminal
defendants to a trial by jury. 	U.S. Const. amend. VI. 	“[T]he selection of a petit
jury from a representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial.” 	Taylor v. Louisiana,
419 U.S. 522, 528 (1975); see also Jury Selection and Service Act of 1968,
28 U.S.C. §§ 1861-1869. 	A defendant asserting an infringement on his
constitutional right to a jury drawn from a fair cross section of the community
must satisfy the prima facie test first set forth in Duren v. Missouri, 439 U.S.
357, 364, (1979). 	“To establish a prima facie violation of the fair-cross-section
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requirement . . . a defendant must prove that: (1) a group qualifying as
‘distinctive’ (2) is not fairly and reasonably represented in jury venires, and (3)
‘systematic exclusion’ in the jury-selection process accounts for the
underrepresentation.” 	Berghuis v. Smith, 559 U.S. 314, 327 (2010) (citing
Duren, 439 U.S. at 364. 	“However, once the defendant has made a prima facie
showing of an infringement of his constitutional right to a jury drawn from a fair
cross section of the community, it is the State that bears the burden of justifying
this infringement by showing attainment of a fair cross section to be
incompatible with a significant state interest.” 	Duren, 439 U.S. at 368 (citing
Taylor, 419 U.S. at 533–35 (emphasis added).
The jury in Mr. Olivares’ case was selected on December 1, 2014. 	Mr.
Olivares, through his attorney, participated in the voir dire of the prospective
jurors and in the ultimate selection of the jurors chosen in this case. 	Mr.
Olivares did not challenge the composition of the jury venire until December 8,
2014, seven days after the jury was selected. 	The jury venire in this case was
randomly selected from the jury wheel maintained by the Clerk of Court. 	The
jury wheel for the Western Division of the District of South Dakota is comprised
of all registered voters living in the Western Division. 	Plan for the Random
Selection of Grand and Petit Jurors, at 3-4 (D.S.D. July 22, 2008), available at
http://www.sdd.uscourts.gov/sites/sdd/files/juryplan72208.pdf.
Mr. Olivares failed to adduce any evidence indicating the court’s jury wheel
systematically excludes minorities from jury panels. 	Mr. Olivares generally
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asserts the jury venire appearing on December 1, 2014, “was not a fair
cross-section of the community as required by the Amendment VI of the United
States Constitution” . . . . and “was underrepresented by minorities and should
have included at least 7 [of] the 50 [prospective] jurors as minorities.” 	(Docket
1104 at ¶¶ 2 & 13).1 	Mr. Olivares further asserts the cold weather and economic
conditions in the far eastern portion of the Western Division, presumably
including Pine Ridge and Rosebud, systematically excluded minorities from
attending jury service on December 1, 2014. 	Id. at ¶¶ 1, 13-15. 	Mr. Olivares’
arguments are unavailing.
The United States Court of Appeals for the Eighth Circuit “consistently
upheld the use of voter registration lists in the selection of jury pools.” 	United
States v. Morin, 338 F.3d 838, 844 (8th Cir. 2003); see also id. (“Absent proof
that Native Americans, in particular, face obstacles to voter registration in
presidential elections, ‘[e]thnic and racial disparities between the general
population and jury pools do not by themselves invalidate the use of voter
registration lists and cannot establish the “systematic exclusion” of allegedly
under-represented groups.’ ”) (quoting United States v. Sanchez, 156 F.3d 875,
879 (8th Cir. 1998)). 	Furthermore, the court frequently has jurors appear from
the Pine Ridge Indian Reservation and is aware of the constant flow of travel
between the Pine Ridge Reservation and Rapid City.
1The court notes that two of the jurors selected to serve in this case
self-identify, at least in part, as having Native American lineage.
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Defendant failed to establish a prima facie violation of his right to a jury
drawn from a fair cross section of the community and his motion to quash the
jury panel must be denied. 	Accordingly, and good cause appearing, it is hereby
ORDERED that the motion (Docket 1104) is denied.
Dated December 10, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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