United States v. Adrian Ward Rogers
73 F.3d 774
8th Cir.
1996
Check Treatment

*1 pending forfeitures of prior jeopardy $30,000. Although Sykes Jeep inter- and asserted his proceedings in the

vened this circuit has

ownership property, stay government’s of the forfei-

held that the the attachment of proceedings prevents

ture Clementi,

jeopardy. (8th Cir.1995) (“Jeopardy does filing upon government’s mere

not attach claim.”)

of an administrative prerequisite

Sykes fails to demonstrate Thus,

prior jeopardy. the indictment does Jeopardy

not violate the Double Clause court.

we affirm the district America, Appellee,

UNITED STATES of ROGERS, Appellant.

Adrian Ward

No. 95-2180. Appeals,

United States Court

Eighth Circuit.

Submitted Nov. 1995. 9, 1996.

Decided Jan. Suggestion Denying Rehearing

Order

En Banc Feb. 1996. *2 jury impaneled

After the had been and trial, Rogers filed a motion to sworn for his jurors quash from which the had the venire drawn, challenging constitutionality been Rogers’ jury-selection process. of Iowa’s 1, 1995, On March motion was denied. jury Rogers guilty of both the rob- found bery The court and the firearms offense. eighty sixty months sentenced him to and imprisonment, respectively, to run consecu- tively and in addition to a 240-month term prior drug His total imposed for a offense. Moines, Iowa, Price, argued Des William imprisonment. sentence was 380-months appellant. II. DISCUSSION Paff, Attorney, Assistant U.S. Lester A. 1) appeal: Rogers raises four issues on appellee. argued for jury-selection plan, constitutionality of Iowa’s 3) 2) BEAM, HEANEY, arraignment, at his his absence MORRIS Before 4) trial, ARNOLD, identification used Judges. Circuit SHEPPARD sufficiency his convic- of the evidence for HEANEY, Judge. tions. Jury-Selection Plan A. Iowa by a Rogers appeals his convictions

Adrian convictions, Although Rogers’ robbery of a firearm we affirm jury and the use of bank reluctantly respect Rogers’ to do so with felony in of a violation in the commission jury-selection plan. 2113(a) (b) challenge of the Iowa § and 18 U.S.C. 18 U.S.C. — previ- recognize that we are bound We 924(c), affirm. respectively. § We court, ous decision our (8th Cir.1993), Garcia, I. BACKGROUND plan present Iowa with- which held that the Rogers was indict- On November Nevertheless, scrutiny. stands constitutional jury robbery of the grand for the ed on compelled to discuss our concerns we feel Davenport, Security Savings Bank United encourage the court en bane this issue and to for the use of firearm Iowa and appeal. on this to reconsider Garcia district court of the offense. The commission jury-selee- Rogers contends that Iowa arraignment in the unusu- Rogers’ scheduled right plan violated his Sixth Amendment tion the Polk of the courtroom of al location up fair cross- by jury made of a to be tried County Rogers refused to sub- Jail In the Southern section prerequisite for strip-search, mit to Iowa, jurors prospective are se- District of At courthouse. transportation to the federal wheel, jury which is from a master lected Rogers’ was in- arraignment, counsel years with from voter every four names filled not leave his cell. formed of actual voters. At registration lists or lists permission, Rogers’ counsel the court’s With trial, jurors were sum- eighty-nine Rogers of the up to the cell to inform went selection; eighty-nine jury all moned for impor- arraignment and the purpose of the argument, Rogers’ At oral were white. coun- presence; Rogers told his tance of his the diffi- urged court to consider counsel our Rogers’- him. counsel proceed without sel to convincing an African-American culty of appeared on to the courtroom returned system produced client request of his client. He did behalf in the fairness pool fair. Public confidence respect The district court found justice system, continuance. with criminal trials, is a right community to be participation had waived recog- explicitly guilty” plea Supreme entered Court accepted a “not concern the Louisiana, objection Taylor No was made nized Rogers’ behalf. L.Ed.2d trial. arraignment at the or at procedure contrast, Court, recognized Supreme our court Id. at 492. guarantees Missouri, a criminal Amendment the Sixth Duren v. found a up made of a fair cross- defendant a largely violation based on nu- cross-section community. 991 at 491 section of the merical evidence: *3 Louisiana, 530, Taylor (citing 419 U.S. at undisputed demonstration [Petitioner’s] 697). a at For defendant to estab 95 S.Ct. large discrepancy just that a occurred not prima facie violation of the constitu lish a occasionally every weekly in but venire for requirement, tional fair cross-section he must period nearly year manifestly of indi- show: underrepresen- cates the cause of the (1) alleged group to be excluded is is, systematic in tation was inherent —that (2) community; group a ‘distinctive’ in the particular jury-selection process. the group in representation the of this also, at 99 at U.S. S.Ct. 669. See juries from is which are selected Perez-Hernandez, not fair and reasonable in relation to the (“In 1380, 1384 n. 5 a fair persons community; of in number such the analysis, purposeful cross section discrimina underrepresentation is emphasis purely tion is irrelevant since the is systematic group in due to exclusion of the venire.”). the structure the jury-selection process. the support challenge, In of his constitutional Missouri, (citing Id. Duren v. Rogers presents the same numerical evi- (1979)). S.Ct. presented dence as recognizing While African Americans consti- the court in Garcia and which our court group, (citing tute a distinctive id. Peters v. declined to consider at that time. We now Kiff, 407 U.S. 33 L.Ed.2d (1972)), pro- consider our court in declined to the evidence because we find it Garcia repre- consider whether African-American bative of both the second and third Duren sentation in Iowa venires is fair and reason- elements and because it buttresses our re- Instead, able. it determined that Garcia quest for reconsideration of Garcia. Accord- failed demonstrate the census, ing to the 1990 African Americans process systematically excluded African (31,656 1,485,443) constituted out of 1.87% representation jury pools, in Americans from general population the in the Central Divi- thus, prima he failed to establish a sion of the Southern District of Iowa. Yet violation. Id. (70 5,424) only 1.29% out of were in included rejecting system- argument Garcia’s petit jury pool in the Central Division exclusion, atic our court an introduced ele- through from March 1987 March 1992. ment of intentional discrimination not re- Comparing the number of African Ameri quired by Supreme court Court. Our general in population cans with the num stated: pools, Rog ber of those included Garcia does not contend that Iowa law provides separate ers two calculations any imposes suspect 1) disparity, court: the absolute which is the qualifications or that Plan is adminis- (1.87 figures difference between the two and disp discriminatory tered manner. Garcia 2) 1.29), 0.579%, comparative or any showing has not made that African arity,1 Although utilizing is which 30.96%. Hispanies systematically Americans or are disparity the absolute calculation seem jury-selection process. excluded intuitive, systemat its result understates the disparity A numerical alone does not vio- deficiencies; representative percentage ic rights late of Garcia’s and thus will not

support challenge disparity percentage to the Iowa Plan. can never exceed the comparative disparity 1. The calculation is as fol- lows: of African Americans of African Americans

% in the % in the venires population less X 100 of African Americans % population

in the Thus, system itself contributed to dence that in the African Americans participation in were lack of African-American case, if African Americans even in this potential pools. entirely from the lists the venire excluded ' disparity, under an ab- jurors, the maximum establish, a mini Defendant’s statistics calculation, be 1.87%. solute mum, facie case that blacks are exclusion, however, compar- total case of being systematically excluded from ser 100%. While disparity figure would be ative Iowa, vice in the District of Southern provide simpli- figures recognize both that, justification forthcoming, some unless issue, complex fied statistical shorthand-for system place comport there does not pro- disparity calculation comparative Duren, constitution. with our See U.S. system- meaningful measure of a more vides Thus, 367-68, 99 at 670. this case group: “distinctive” impact vis-a-vis the atic *4 warrants reconsideration our court.2 representation of African it calculates Arraignment B. to the Afri- jury pools relative Americans Rogers argues that absence also his rela- community rather than can-American arraignment his violated his Sixth population. Contra United the entire tive to right present all crimi Amendment to be (8th 150, F.2d 155 Clifford, 640 States v. against him. It irrefuta proceedings nal is Cir.1981) (our adopt court has declined ble that defendants have constitutional concept as a better disparity comparative every stage a trial. right to be of underrepresentation). calculating means of Allen, 343, 337, 90 Illinois v. 397 U.S. See case, five-year period, Iowa’s over a In this (cit (1970) 1060, 1057, S.Ct. underrepresented the jury-selection system States, 370, ing 146 U.S. 13 Lewis United thirty community by over African-American (1892)). 136, spe 36 L.Ed. 1011 More S.Ct. words, thirty was In other black percent. cifically, 43 of the Federal of Rule Rules on a likely to be called to serve percent less requires Procedure a defendant’s Criminal source composition of the jury than if the ease, arraignment. how presence at this perfectly lists mirrored ever, Rogers’ as a basis consider absence if that Interestingly, Rogers also states only plain if it constituted error for reversal randomly selected jury-selection plan in Iowa properly preserve Rogers failed to citizenry, probabil- jurors the entire court below. See Fed. this issue only African Americans out ity calling 70 of see, 52(b); e.g., R.Crim.P. 5,424 jurors is than 0.1%. potential less of (8th Cir.1988). Meeks, 1201, 1203 857 provide the calcu- Although Rogers does not a defendant has had sufficient Where figure, does lation for this against him and an charges notice of the part it as dispute it and we take note of opportunity to defend himself at adequate extremely probability low of the record. The trial, arraignment that an court has held oc- underrepresentation would have Cook, 972 required. States v. further evi- is not United provides chance alone curred (codified 90-274, 101, No, author, as § 82 Stat. 54 writing only, himself also en- 2. This 1861-1869), requires §§ at 28 U.S.C. amended courages court to con- the Iowa federal district plans to: modifying jury plan to increase its selection sider prescribe source or sources some other sig- representation jury pools. minority in its A where neces- addition to voter lists names in proportion of the defendants convicted nificant rights policy protect sary to foster the as of No- federal courts are black: in the Iowa 1861, cross-section [fair sections secured requirement] 1995, (164 nearly the 756 vember 22% 1862 [anti-discrimination] prisoners) were black. convicted in Iowa federal this title. Yet, consistently lists Iowa’s use of voter has districts, (1984). 1863(b)(2) § Several 28 U.S.C. including persons jury pools produced have few or no that Minnesota, jury supplement lists their government responds the ob- of color. The persons license or who have a drivers with jury pools underrepresentation in Iowa served minority rep- card to increase state identification likely vote to the fact that African Americans due courts federal district resentation. The Iowa popula- proportion than the rest of in lower supplement jury See similarly its lists. should argues court has not It further that our tion. Williams, Note, Represen- Jury Cynthia Source A. Lists, recognized phenomenon a constitution- such a as Registration the Use Voter tativeness and (cita- Clifford, (1990) F.2d at 156 violation. See 640 (arguing al courts 65 N.Y.U.L.Rev. Nevertheless, omitted). gov- legislation supplementation of lists under tions should order remedy plans, erning Jury and Service Act creation of Selection lists). Pub.L. Jury and Service Act of Selection (8th (citing Rogers, Hammers, including F.2d 218 Garland v. Rogers’ Travis Washington, getaway 232 U.S. testimony S.Ct. driver. The additional irreparable 58 L.Ed. 772 and United States v. diminishes likelihood of mis- Cir.1977)), Coffman, identifieation in this case. We therefore denied, 1058, 113 991, 122 conclude that cert. while Collins’ identification tainted, case, Rogers have been we cannot L.Ed.2d was say provided used in this arraign notice. At the time of his case Rogers’ ment, process rights. violated due copies had received two indictment; furthermore, his counsel ex Sufficiency D. of the Evidence plained charges to him the he faced and the Finally, Rogers challenges the suf importance appearance. of his Three ficiency of the evidence for his convictions. later, Rogers present during months was jury’s We can reverse the determinations trial, six-day jury provided him which with if, only after review of the entire record in a ample opportunity against to defend himself light most government, favorable to the Cook, charges. arraign Under a formal reasonable could not guilt have found ment would be excused in this case. More beyond See, Cook, e.g., reasonable doubt. over, say Rogers’ we cannot absence at ample F.2d at 221. testimony There was arraignment injustice. led to manifest specifically connecting Rogers at trial to the We therefore affirm conviction *5 robbeiy Moreover, bank per issue. bank ground. sonnel testified as to weapons the use of during robbery. Therefore, the we do not C. Identification Procedures upset the verdicts in this case. Rogers argues gov further III. CONCLUSION ernment’s in-court identification impermissibly suggestive were and unreliable Accordingly, we affirm convictions only because he was one of a few African robbery for bank and the use of a firearm present in Rog Americans the courtroom. But, doing, offense. in so only explicitly challenges ers the in-court encourage this court en bane to re-visit the Collins, identification Shane a witness for issue of Iowa’s plan and the government who had been unable to Iowa federal district courts to reform their identify Rogers photo in array one week jury plan minority representation. to increase robbery yet pointed after the Rogers in BEAM, claim, Judge, concurring courtroom. To sustain his specially. must govern demonstrate both that questioning ment’s impermissi Collins was I concur in the result reached the court “ bly suggestive ‘very and that it created a I, specifically IIB, IIC, and concur in Parts irreparable substantial likelihood of misiden IID III opinion. of the court’s I dis tifieation totality under the of the circum agree with the opinion contention that our in Murdock, stances.’” See United States v. (8th United States v. 991 F.2d 489 Cir.1991) (quoting holding violates the Duren Brathwaite, 98, 116, Manson v. 432 U.S. 97 Missouri, 99 S.Ct. (1977)), cert. L.Ed.2d 579 or the Constitution. The — denied, -, U.S. 133 purported underinclusion of the “distinctive L.Ed.2d 184 group” in gathered under the Iowa plan selection systemat results not from cross-examination, Rogers’ On counsel anyone ic exclusion of but apparent from an placed reliability accuracy underparticipation in voter jury: Collins’ identification in context for the processes by targeted other election clas highlighted he only that Collins had seen the sification. suspect fleeing backyard across for a few minutes and identify Rog- that he could not Judge Heaney extols the virtue of Minne- photo ers in a lineup Rog- one week later. program sota’s supplementing the first that, ers’ counsel also noted other than a stage assembly venire with names from driv- persons sitting gallery, few spectator and, possibly, ers license lists “state identifi- only was card[s],” black in the courtroom. cation whatever this identification In addition to testimony, Collins’ may least card list amount to. While is no there two other another, way witnesses identified evidence the record one or any cannot at time underlying apathy conceive reasons reg- justification visiting automobile disproportionate for of this also lead result and, thus, drivers license fewer istrations alienation on this defendant. event, the Motor Voter applications. respectfully I therefore dissent very likely makes in effect in Iowa program petition rehearing. denial of for list a redundant and of a drivers license use unnecessary Iowa Code Ann. effort. See (West Supp.1995).

§ 48A.18 Heaney place the

Judge does not source cards he refers to.

the state identification identify reasonably uni- the cards

Unless citizens, the group of existence

versal mind, spring to readily

which does contrary to run to the

suggestion would seem equal for opportunity service

idea contemplated and the Constitution. Duren KLEIN; Klein; Bob Genevieve John Pendergrass; Thompson; Frank Sam ORDER Schaffer; Clymer Law; Margaret Don 16, 1996 Feb. Hall; Wayne Franklin, Rep nie Class rehearing en suggestion banc is The for resentative; Morris, Repre Glen Class Judge Judge Morris McMiUian denied. sentative; Vernon, Rowland Class suggestion. grant Arnold S. Representative, Appellants, rehearing by the petition panel is The denied. also *6 COMPANY; ARKOMA PRODUCTION ARNOLD, SHEPPARD Circuit MORRIS Arkla, Exploration Inc.; Compa Arkla McMILLIAN, dissenting, joined

Judge, Jones; McCoy, ny; Jerral W. Michael V. Judge. Appellees. grant rehearing I would en banc for the Heaney’s Judge panel reasons indicated No. 94-1353. particularly, I opinion in case. More believe Appeals, United States Court (8th Cir.1993) incorrectly F.2d 489 concluded Eighth Circuit. produced in this that statistics like the ones repre- not tend case do to establish Jan. 1995. Submitted in Iowa federal court sentation blacks Jan. 1996. Decided is not fair and reasonable. it Were prior holding, I not for this would have at the Suggestions Rehearing Rehearing and for very to the district court for least remanded En March Banc Denied 1996.* I think proceedings, further because has out a case defendant made right was that his Sixth Amendment violated.

The has never advanced a rea- using

son for lists as venires, though for black citizens

basis even seriously underrepresented on lists.

are such much, all, probably It matter if at does not occurs,

why but it

might gen- be black citizens are well system. I

erally skeptical political * suggestions part or deci- Judge grant Arnold no consideration Hansen took rehearing nold, Judge en Chief Richard S. Ar- banc. sion this case. Judge Judge Sheppard Morris Loken