United States v. John Smith, II

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2025
• Docket: 23-30036
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-30036

Plaintiff-Appellee, D.C. Nos. 3:16-cr-00086-SLG-1 v. 3:16-cr-00086-SLG

JOHN PEARL SMITH II, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted February 13, 2025 Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and BENNETT,** District Judge.

John Pearl Smith II appeals the district court’s denial of his motion to

dismiss the superseding indictment. The District of Alaska failed to implement the

geographic proration formula required under its 2015 Jury Plan. Smith argues that

this failure deprived him of his right to a grand jury that represented a fair cross-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. section of the community because it led to a jury venire with fewer African

American and American Indian/Native Alaskan jurors, and more white jurors. We

have jurisdiction under 28 U.S.C. § 1291 and “review independently and non-

deferentially a challenge to the composition of grand and petit juries.” United

States v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989). We affirm.

1. Smith fails to make a prima facie showing that his right to a grand jury

that represented a fair cross-section of the community was violated. To establish a

prima facie showing under the Sixth Amendment and the Jury Selection and

Service Act, Smith must show:

(1) [T]hat the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979); see also United States v. Miller, 771

F.2d 1219, 1227-28 (9th Cir. 1985).

Only the second and third Duren factors are in dispute. The second Duren

factor “requires proof, typically statistical data, that the jury pool does not

adequately represent the distinctive group in relation to the number of such persons

in the community.” United States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996). A

“challenging party must establish not only statistical significance, but also legal

significance.” United States v. Hernandez-Estrada, 749 F.3d 1154, 1165 (9th Cir.

2 2014). Legal significance requires “examin[ing] . . . the likely, actual, and real life

impact of the jury pool at issue,” which “look[s] to people not percentages.” Id.

(cleaned up). “[U]nderrepresentation does not have legal significance” if it “does

not substantially affect the representation of the group in the actual jury pool.” Id.

Even assuming that Smith’s statistical calculations are accurate and

statistically significant, Smith fails to demonstrate legal significance. While the

District of Alaska used an incorrect proration formula, which it has acknowledged

and indicated it will correct, Smith fails to demonstrate how the representation of

African Americans and Native Americans/Alaska Natives was substantially

affected. For example, under the correct proration formula, the number of white

jurors could actually increase while the number of American Indians/Alaska

Natives could decrease as it would have led to greater representation from the

Anchorage division, which has the smallest percentage of Native

Americans/Alaskan Natives and a similar percentage of white residents as the other

divisions. Contrary to Smith’s contention, the record indicates that the correct

proration formula would have only a marginal effect on the demographic

composition of the grand jury, so any impact would not be legally significant. See

United States v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977). As such, Smith

3 fails to meet his burden under the second Duren factor.1

AFFIRMED.

1 We need not address Smith’s arguments regarding the third Duren factor because a prima facie case requires a showing that all factors are met. Duren, 439 U.S. at 364.