United States v. Footracer

189 F.3d 1058, 99 Daily Journal DAR 9137, 99 Cal. Daily Op. Serv. 7181, 1999 U.S. App. LEXIS 20811, 1999 WL 672558

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 1999
• Docket: No. 97-10528
• Status: Published

Opinions

Opinion by Judge WIGGINS; Dissent by Judge PREGERSON.

WIGGINS, Circuit Judge:

Johnny Roy Footracer, a Native American, claims that he was denied his Sixth Amendment right to a jury venire reflecting a fair cross-section of the community because his criminal trial was transferred from the District of Arizona’s Prescott Division, the division in which the alleged crimes were committed, to the Phoenix Division, which contains a much smaller percentage of Native Americans. We affirm Footracer’s conviction.

I.

In September 1996, a federal grand jury indicted Johnny Roy Footracer on seven counts of various sex offenses allegedly committed against minor girls on the Navajo Indian Reservation in Arizona. The Reservation lies within the Prescott Division of the District of Arizona, and Footracer’s case originally was set for trial in the Prescott Division. The district court, however, sua sponte transferred the trial to the U.S. Courthouse in Phoenix, Arizona.¹ Footracer moved to have his trial returned to Prescott, where Native Americans constitute a much larger percentage of the population than they do in Phoenix, but the district court denied the motion and held the trial in Phoenix. The jury convicted Footracer of four of the seven counts in the indictment, and the district court sentenced Footracer to 46 months incarceration. Footracer now appeals his conviction, arguing that the transfer of his trial from' Prescott to Phoenix violated his Sixth Amendment right to a jury venire composed of a fair cross-section of the community.² We have jurisdiction under 28 U.S.C. § 1291. “We review independently and non-deferentially a challenge to the composition of grand and petit juries.” Thomas v. Borg, 159 F.3d 1147, 1149 (9th Cir.1998) (quoting United States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir.1989)).

II.

Footracer relies on this court’s dicta in United States v. Etsitty, 130 F.3d 420 (9th Cir.1997), to support the claim that transferring his case from the Prescott Division to the Phoenix Division denied him the right to a jury venire reflecting a fair cross-section of the community. In Etsitty, a Prescott district court transferred a criminal case to Phoenix for trial. The district court then denied the defendant’s motion to have the case transferred back to Prescott. A Phoenix jury convicted the defendant, and the defendant appealed to this court. He argued, inter alia, that the transfer of his case to Phoenix violated his Sixth Amendment right to a jury venire reflecting a fair cross-section of the community as articulated in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The defendant based his claim on undisputed evidence showing that the Prescott Division had a much larger percentage of Native Americans than did the Phoenix Division. Faced with this evidence, the Etsitty court opined that the systematic removal of cases from the Prescott Division to the Phoenix Division would pose “a strong case for finding an exclusion of Indians in violation of Duren.” Id. at 425. Nonetheless, the Etsitty court refused to decide the issue, leaving “for another day” the issue of whether the systematic transfer of criminal trials from Prescott to Phoenix violates the fair cross-section requirement.³ Etsitty, 130 F.3d at 426. We believe it is time to resolve this issue.

In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court announced a three-part test for determining the constitutionality of jury selection under the Sixth Amendment:

[T]o establish a prima facie violation of the fair cross-section 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.

Id. at 364, 99 S.Ct. 664.

Footracer claims that Native Americans are the relevant “distinctive” group in this case. If we accept this characterization, Footracer satisfies the first Duren prong because Native Americans undoubtedly qualify as a “distinctive” group. See United States v. Cannady, 54 F.3d 544, 547 (9th Cir.1995) (reaffirming that ethnic minority groups qualify as distinctive groups). Footracer also argues that he satisfies Duren’s second prong because Native Americans were underrepresented on his jury venire. We need not reach this issue, however, because even if Native Americans were underrepresented, Footracer cannot satisfy Duren’s third prong because he cannot show that Native Americans were systematically excluded from jury venires.

To prevail on his claim, Footracer must show that a distinctive group was underrepresented because of the “systematic exclusion of the group.” Duren, 439 U.S. at 364, 99 S.Ct. 664 (emphasis added). Footracer must show that Native Americans, in particular, were excluded. To “exclude” means to “bar from participation, consideration, or inclusion.” Webster’s Ninth New Collegiate Dictionary 433 (1984). Therefore, Footracer must show that the jury selection process barred Native Americans from participating on juries. This use of the term “exclude” implies that the Sixth Amendment is violated only where the particular distinctive group was treated differently. The case law supports this interpretation. In Duren, the Supreme Court found constitutionally infirm a jury selection plan that failed to treat all groups equally. Under the jury selection process in that case, women were treated differently than men because all women and older men, but not men under age 65, were given the option to return a questionnaire to the jury commissioner for the purpose of avoiding jury duty. Duren, 439 U.S. at 361-62, 99 S.Ct. 664. In addition, under the jury selection process in Duren, if women failed to report for jury duty, they were presumed to have claimed an exemption from service. Id. at 362, 99 S.Ct. 664. This same presumption was not extended to men. The different treatment accorded women caused an underrepresen-tation of women on jury venires, violating the Sixth Amendment.

Footracer cannot satisfy this third Duren requirement. He makes no allegation that Native Americans were treated differently than other racial or ethnic groups. According to Footracer, all criminal trials from Prescott are held in Phoenix. He claims that the jury venires for Phoenix trials are composed solely of people residing in the Phoenix Division. Obviously, such an approach would exclude the residents of the Prescott Division, which has a much larger percentage of Native Americans than does the Phoenix Division. Footracer argues, therefore, that the jury selection process, by excluding the large Native American population in the Prescott Division, systematically excludes Native Americans. But Footracer misinterprets Duren’s systematic exclusion requirement. If the Prescott district courts transfer all of their trials to Phoenix, then every potential juror in the Prescott division — Native American and nonNative American alike — is excluded from jury service. Native Americans are not treated differently; they are excluded to the same extent as all other racial and ethnic groups in the Prescott Division.⁴ Thus, instead of arguing that disparate treatment infected the jury selection plan in Arizona, Footraeer argues that the neutral jury selection plan violated the Sixth Amendment because it had a disparate impact on a distinctive group. As such, his argument runs counter to the overwhelming weight of authority, which establishes that a jury selection system does not systematically exclude a distinctive group where the system treats all groups equally but has a disparate impact on one or more.⁵

This principle is seen most clearly in the numerous cases where defendants have challenged the use of voter registration lists in compiling lists of eligible jurors. Many defendants have claimed that, because racial minorities register to vote in smaller percentages than whites, drawing jurors from voter registration lists guarantees that racial minorities will be underrepresented on jury venires. Courts have rejected this argument consistently. Some courts have assumed the fact that the use of voter registration lists leads to the un-derrepresentation of racial minorities on jury venires. These courts still have rejected defendants’ Sixth Amendment challenges to these jury selection plans on the basis of Duren’s systematic exclusion prong. For example, in Truesdale v. Moore, 142 F.3d 749 (4th Cir.1998), the Fourth Circuit rejected such a claim because Truesdale “[did] not advance[ ] any direct evidence of ‘systematic exclusion’ of African Americans from the venire.” Id. at 755. Truesdale argued that use of voter registration lists decreased the percentage of African Americans on jury venires, but he offered no evidence that African Americans were treated differently than any other group. “Instead he [relied] on the bare assertion of substantial underrepresentation to prove that there was a structural or systemic impediment to voter registration by African Americans.” Id. The court rejected the claim, holding that it has “consistently required more to make out a violation of the ‘fair cross-section’ guarantee.” Id. To find a Sixth Amendment violation where a criminal defendant shows only that a distinctive group was underrepresented on jury venires, without evidence that the group was treated differently than other groups, would “allow [the defendant] to substitute evidence of substantial under-representation for evidence of systematic exclusion” and would “exalt racial proportionality over neutrality].” Id.; see also United States v. Cecil, 836 F.2d 1431, 1446 (4th Cir.1988) (holding “that a showing of mere statistical underrepresentation, without evidence of actual discrimination or exclusionary practices was insufficient to establish” a Sixth Amendment violation.) (emphasis added) (internal citations and quotation marks omitted).

The Fourth Circuit is not alone. In United States v. Ireland, 62 F.3d 227 (8th Cir.1995), the Eighth Circuit also rejected a claim that the use of voter registration lists decreased minority participation on juries in violation of the Sixth Amendment. The Ireland court held that even if the defendant could provide evidence of under-representation, such “evidence, without more, fails to establish that Native Americans were systematically excluded.” Id. at 231. “In addition to a numerical disparity, a defendant must demonstrate that the voter-registration qualifications are suspect, or that the jury-selection procedure is administered in a discriminatory manner.” ⁶ Id. Other circuits have made similar rulings. See Schanbarger v. Macy, 77 F.3d 1424 (2d Cir.1996) (“[Ajbsent positive evidence that some groups have been hindered in attempting to register to vote, a jury venire drawn from voter registration lists [does not] violate[ ] the Sixth Amendment’s fair cross-section requirement.”); United States v. Ashley, 54 F.3d 311, 314 (7th Cir.1995); Ford v. Seabold, 841 F.2d 677, 685 (6th Cir.1988).⁷

All of these cases establish that a defendant cannot prevail on a fair cross-section claim without evidence that a distinctive group is treated differently than other groups; disparate impact is not enough.⁸ Even if a group is underrepresented on jury venires, there is no constitutional violation where the jury selection process is neutral in its treatment of all groups. Here, Native Americans were treated the same as all other groups. Thus, we reject Footracer’s argument.

III.

Footraeer cannot show that Native Americans were systematically excluded from Arizona’s jury venires. But assuming as true Footracer’s alleged facts, he has shown the systematic exclusion of all adults eligible for jury service who reside in the Prescott area. If every Prescott criminal case is tried in Phoenix, and if Phoenix jury venires are drawn solely from residents in the Phoenix Division, no resident of the Prescott Division would ever sit on a criminal jury. Geography, not race, would determine the composition of Arizona’s jury venires.

Accepting Footracer’s facts, Arizona’s selection process treats differently the entire, jury-eligible population of the Prescott Division. The question, then, is whether this “group” satisfies Duren’s requirement of distinctiveness. It does not. This circuit has adopted the Eleventh Circuit’s three-part test for determining whether a group is distinctive. United States v. Fletcher, 965 F.2d 781, 782 (9th Cir.1992) (adopting the test used in Willis v. Zant, 720 F.2d 1212 (11th Cir.1983)).⁹ Under this test, a group is distinctive if: (1) the group is defined and limited by some factor, (2) a common thread or basic similarity in attitude, ideas, or experience runs through the group, and (3) there is a community of interests among members of the group such that the group’s interest cannot be adequately represented if the group is excluded from the jury selection process. Id. Using this test, we have held that “college students” are not a “distinctive” group under Duren. Id. We have reached the same conclusion regarding young adults, non-working people, and non-high school graduates. United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir.1977). All of these alleged groups lacked the requisite similarity in “attitudes, ideas, and experiences” to qualify as a distinctive group. Fletcher, 965 F.2d at 782. It seems clear that the population residing within the Prescott Division’s large geographical area lack sufficient shared “attitudes, ideas, and experiences” to qualify as a “distinctive” group. Thus, Footraeer does not satisfy Duren’s first prong.

This understanding of Duren is in harmony with those circuits that have analyzed whether the populations of large, geographic groups like the Prescott Division can constitute “distinctive” groups. In Zicarelli v. Dietz, 633 F.2d 312 (3rd Cir.1980), the Third Circuit rejected a claim similar to Footracer’s. There, a defendant who was accused of committing a crime in Hudson County had his trial transferred to Burlington County. Jurors were drawn only from Burlington County. The defendant claimed that this transfer violated the Sixth Amendment because of the different racial compositions of the two counties. The Third Circuit rejected this argument, holding that residents of a geographic group cannot be considered a distinctive group for cross-section analysis unless the group is “profoundly culturally distinct.” Id. at 320. Numerous courts have made similar rulings.¹⁰ See United States v. Butera, 420 F.2d 564, 572 (1st Cir.1970) (“[W]e are not aware that residents of counties can be said to hold views and attitudes which are in any way ‘distinct’ from those of their neighbors”); Cobbs v. Robinson, 528 F.2d 1331, 1336 (2d Cir.1975) (“Residents of the City of Bridgeport are also not necessarily a cognizable class.”); United States v. Foxworth, 599 F.2d 1, 4 (1st Cir.1979) (“[I]t can hardly be asserted that the registered voters in a given city or town are sufficiently ‘distinct’ to constitute a cognizable group.”).¹¹

IV.

Our interpretation of Duren is not only consistent with established case law, it also avoids undermining Federal Rule of Criminal Procedure 18 and imposing onerous burdens on district courts. A decision adopting Footracer’s argument would do both.¹²

Under Rule 18, Fed.R.Crim.P., a criminal trial must be held in the district in which the crime was committed, but it need not be held in the same division in which the crime was committed. See United States v. Herbert, 698 F.2d 981, 984 (9th Cir.1983). In fact, this rule was meant to “vest[ ] discretion in the court to fix the place of trial at any place within the district.” Id. (citing Fed.R.Crim.P. 18). Adopting Etsitty’s dicta would destroy Rule 18 and thwart its policy goals. Without question, there are numerous districts with internal divisions that vary widely in their ethnic makeups. Thus, even if all jury selection procedures were perfect— and were completely free of discrimination against any group — the jury venires in many divisions still would have a higher percentage of a particular racial minority than would the venires in neighboring divisions. See United States v. Gottfried, 165 F.2d 360, 364 (2d Cir.1948) (“There are probably no districts in the Union, which can be divided without disclosing in the sections different racial, religious, political, social or economic percentages.”). Thus, anytime a district court exercises its Rule 18 right to hold trial in a division other than the division in which the alleged crime was committed, the defendant is likely to have an argument that the jury venire does not reflect the racial composition of the division in which the alleged crime was committed.

Footracer argues that these differences in racial composition could serve as the basis for a Sixth Amendment violation. To rule in Footracer’s favor, we first would have to accept that Native Americans, and other racial minorities, qualify as distinctive groups. This we already have done. Second, we would have to accept the premise that a neutral jury selection system that has a disparate impact on minority groups systematically excludes these minority groups. This premise we reject. But assuming, arguendo, that we accepted both premises, the key to resolving claims like Footracer’s would be whether the distinctive group is underrepresented as articulated in Duren’s second prong. This analysis hinges on the absolute disparity between the group’s percentage of the population as a whole and its percentage of the relevant jury venire. See Thomas, 159 F.3d at 1150. There is no bright line that separates constitutionally acceptable disparities from constitutionally infirm disparities, but the Supreme Court has found disparities as small as 14.7% sufficient to establish underrepresentation. See Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967).

Adopting Footracer’s argument, then, would sound the death knell of Rule 18, because, as a practical matter, it would deny district courts the discretion to hold trial anywhere within a district. Under Footracer’s proposed rule of law, district courts would have two unsavory options. They could try all criminal cases in the same divisions in which the crimes were committed. But this, of course, abolishes Rule 18. Alternatively, to keep Rule 18 alive, district courts would have to constantly update their demographic studies of the divisions in their districts, in order to avoid transferring a case to a neighboring division where the percentage of some racial, ethnic, or otherwise “distinctive” group is 14% less than in the division in which the crime was committed. Importantly, the district court would have to analyze not only the particular group to which a particular defendant belongs, but also every other distinctive group.¹³ The text of the Sixth Amendment does not demand such an extravagant waste of judicial resources, and common sense strongly counsels against it.

V.

Footracer has not shown that he was deprived of a jury venire reflecting a fair cross-section of the community. Native Americans, though a distinctive group, were not systematically excluded by the District of Arizona’s jury-selection process. The residents of the Prescott Division, though excluded by the jury-selection process, are not a distinctive group.

Footracer’s conviction is AFFIRMED.

1 . The district court’s original order offered no reasons for the transfer. Later, in the district court’s denial of Footracer’s motion to return his trial to the Prescott Division, the district court reasoned that trial in Phoenix was more convenient and that a transfer would aid the prompt administration of justice.

2 . Footracer challenges his conviction on a number of other grounds as well. We have addressed these arguments in an unpublished disposition filed concurrently with this published opinion.

3 . Our understanding that the Etsitty court’s discussion of the fair cross-section requirement was dicta parallels that of a Seventh Circuit panel in United States v. Raszkiewicz, 169 F.3d 459 (7th Cir.1999), which noted that Etsitty "commented on” but “did not rule on the constitutionality of” transferring criminal cases from Prescott to Phoenix. Id. at 467.

4 . It is important to note that Footracer does not argue that venires in the Phoenix Division discriminate against Native Americans who reside in the Phoenix Division. Instead, he simply points out that far fewer Native Americans reside in the Phoenix Division, and thus even where venires are formed in a race-neutral manner, fewer Native Americans will make the venires. In addition, Footraeer does not claim that the District of Arizona’s divisions are the result of gerrymandering. See United States v. Cannady, 54 F.3d 544, 547 (9th Cir.1995) ("Only in those cases where the use of a division instead of the entire district [for the selection of jury veni-res] constitutes gerrymandering, resulting in the exclusion of a 'distinctive group' from participation in any jury selection process, is there a potential [Sixth Amendment] violation.").

5 . The dissent disagrees and asserts that "there can be no question that it is disparate impact and not disparate treatment that the Sixth Amendment forbids.” Dissent at 1068. In support of this claim, the dissent enlists a sentence in a footnote at the end of the Duren opinion. But we read this footnote as an attempt to distinguish Fifth Amendment jury composition claims, which require a showing of discriminatory intent, from Sixth Amendment fair cross representation claims, which do not. We do not believe that the Court intended this footnote to trump the language from its holding, which requires defendants to show the "exclusion” of a group from the jury venire. Duren, 439 U.S. at 364, 99 S.Ct. 664. The dissent chides us for focusing on the term "exclusion.” Apparently, the dissent believes the use of the term "exclusion,” versions of which appear twice in the Court's articulation of the fair cross representation test, was unintentional and should have no impact. Thus, the dissent invites us to concentrate, instead, solely on the term "systematic,” see Dissent at 1068, as if the Supreme Court intended the third Duren prong to read “that this under-representation is due to systematic underrep-resentation of the group in the jury selection process.” We decline the dissent's invitation, because we agree with the Fourth Circuit that such an interpretation would "allow [the defendant] to substitute evidence of substantial underrepresentation for evidence of systematic exclusion.” Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir.1998). Had the Supreme Court so intended, it would have articulated its holding accordingly.

6 . The dissent wrongly argues that Ireland's understanding of the fair cross-section requirement forces the defendant to prove discriminatory intent. Dissent at 1068-69. It does not. The defendant must show that a distinctive group is treated differently, but the motive behind the differential treatment is irrelevant under the fair cross-section analysis. This is evident from one of the cases relied upon by the dissent, the Second Circuit’s decision in United States v. Jackman, 46 F.3d 1240, 1244 (2d Cir.1995). As the Jack-man court pointed out, differential treatment can be intentional or unintentional. Thus, intent is not an issue in this case, and discriminatory intent remains an element of a Fifth Amendment challenge to the jury composition, but it is not an element of a Sixth Amendment challenge. See e.g. Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir.1998). The Ireland language simply means that a defendant must show that the jury selection process lacks neutrality — that it treats a distinctive group differently.

7 . This circuit also has rejected claims that the use of voter registration lists to fill jury veni-res violates the fair cross-section requirement. But the key Ninth Circuit decisions addressing such claims, United States v. Artero, 121 F.3d 1256 (9th Cir.1997), United States v. Esquivel, 88 F.3d 722 (9th Cir.1996), and United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977), failed to find substantial underrep-resentation of a distinctive group and, therefore, we had no reason to analyze Duren's systematic exclusion prong in these cases.

8 .We are confused by the dissent’s treatment of the voter-registration cases. The dissent claims that these cases rest on "a two-pronged rationale: (1) courts attribute the underrepresentation of minorities on voter registration lists not to any governmental act, but to 'personal predilection not to register' and ‘sloth,’ and (2) the alternative to using voter registration lists is daunting and impractical.” Dissent at 1070. The first prong of the dissent’s “two-pronged rationale” comes from one court's “speculation]” as to why previous voter-registration cases were decided as they were. United States v. Cecil, 836 F.2d 1431, 1447 (4th Cir.1988) (quoting Foster v. Sparks, 506 F.2d 805, 816-17 (5th Cir.1975)). We choose not to rely on an early court’s speculative attempt to draw a general principle from the myriad voter-registration cases. That court’s “speculation” on general principles is less useful than a careful look at the rationales articulated by the courts we cite, and the rationales articulated by these courts belie the dissent’s assertion. First, we disagree with the dissent that the voter-registration cases were based on the premise that the underrepresentation resulted from the "sloth” of potential voters and not from governmental conduct. The governmental conduct is the decision to use voter registration lists in forming jury venires. The government’s decision to form jury venires in this manner is governmental conduct, and this jury selection system can result in underrep-resentation. To the extent that the courts use potential jurors' "sloth" to excuse the resulting venires, and we are not convinced that they do, we understand these courts to mean only that the selection system itself treats all groups equally, and that the simple fact that some groups register in smaller percentages does not transform a neutral selection procedure into a constitutional violation. Second, we are unpersuaded that the voter-registration cases are premised on the hardship that would result if the government were forced to choose jurors in a different manner. Courts do not engage in an analysis of the government's interests until after the defendant has established a prima facie case. See Duren, 439 U.S. at 367-68, 99 S.Ct. 664. But all of the cases cited in our opinion held that the defendant could not make out a prima facie case, which rendered the government's interests irrelevant. In fact, the dissent fails to cite any voter-registration cases that rely on Duren's governmental interests analysis to reject a defendant’s fair cross-section claim, and we are unaware of any such case.

9 . This circuit is not alone in adopting the Zant test. See United States v. Canfield, 879 F.2d 446, 447 (8th Cir.1989); Ford v. Seabold, 841 F.2d 677, 681-82 (6th Cir.1988); United States v. Raszkiewicz, 169 F.3d 459, 463 (7th Cir.1999).

10 . As Zicarelli points out, in those few cases where exclusion of a geographic group has been found to constitute a Sixth Amendment violation, the geographic group being excluded was "profoundly culturally distinct.” Zicarelli, 633 F.2d at 320. For example, Zi-carelli discusses an Alaska Supreme Court decision that found a Sixth Amendment violation where the defendant was accused of a crime committed in a rural Alaskan village with a population of 100, 95 of which were Native Americans. The village was culturally isolated, without television, cars or roads. The defendant was tried in Anchorage and all prospective jurors were drawn from Anchorage. In that case, the Alaska Supreme Court could find that the group being excluded was sufficiently cohesive to qualify as a "distinct” group. Id. at 317.

11 . The dissent points to United States v. Jackman, 46 F.3d 1240 (2d Cir.1995), as supportive of the proposition that the exclusion of a geographic group can violate the fair cross representation requirement. We agree if, and only if, the geographic group is sufficiently cohesive to qualify as a "distinctive” group. It is not clear that the Jackman court intended to erase the longstanding cohesiveness requirement. If it did, then Jackman is inconsistent with Ninth Circuit precedent, which requires the court to use the Fletcher test to determine whether the alleged "distinctive” group is sufficiently cohesive. We also note that, under the dissent’s understanding of Jackman, the Jackman decision contradicts, without discussion, an earlier decision from its own circuit. See Cobbs v. Robinson, 528 F.2d 1331, 1336 (2d Cir.1975).

12 .Our discussion of Rule 18 is not, as the dissent seems to believe, a discussion of whether governmental interests justify an exclusionary practice. Dissent at 10393. This governmental interest analysis is only required after the defendant makes out a prima facie fair cross representation claim. See Duren, 439 U.S. at 367-68, 99 S.Ct. 664. Foo-tracer has not done so. Our discussion of Rule 18 is meant only to show that the dissent’s understanding of the Sixth Amendment would work a revolutionary, and unnecessary, change in the law and would adversely impact every district court.

13 . " '[TJhere is no rule that [Sixth Amendment claims] may be made only by those defendants who are members of the group excluded from jury service.¹ ” United States v. Nelson, 137 F.3d 1094, 1101 fn. 1 (9th Cir.1998) (quoting Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)). Therefore, district courts would have to be aware of the compositions of all the racial, ethnic, and otherwise "distinctive” groups in both of the relevant divisions.

1 . Footracer presented evidence to the district court that Native Americans over the age of 18 constituted 20.78% of the people over 18 in the Prescott division, but only 1.73% of the people over 18 in the Phoenix division. He also presented evidence that Native Americans comprised only 0.3% of the Phoenix qualified jury wheel.