Lead Opinion
At approximately 3:00 a.m. on July 11, 1995, Defendant Michael Shinault entered a Food-4-Less grocery store in Wichita, Kansas. Armed with a semi-automatic pistol, he robbed the store of $250. About an hour later, the defendant committed a similar armed robbery of a Total gas station, netting about $40. The defendant was charged with two counts of violating the Hobbs Act, 18 U.S.C. § 1951 (interfering with interstate commerce by robbery), two counts of violating 18 U.S.C. § 924(c) (using or carrying a weapon during a crime of violence), and one count of violating 18 U.S.C. § 922(g)(1) (being a felon in possession of a firearm). A jury returned a guilty verdict on all counts. The defendant now appeals his conviction on several grounds, including contentions that the trial violated his constitutional protection against double jeopardy and that underrep-resentation of minority racial groups in the pool from which his jury was drawn violated his Sixth Amendment right to an impartial jury. We exercise jurisdiction under 18 U.S.C. § 1291 and affirm.
The defendant went to trial in the Wiehita-Hutehinson division of the District of Kansas. After voir dire, a jury with no alternates was sworn. At that point, one of the jurors noted that she had child-care responsibilities that would make it difficult for her to serve on the jury. The district court excused that juror and, without objection from either the government or the defense, swore in another juror. The jury found the defendant guilty of all the charged crimes. At the sentencing phase, the district court applied the Armed Career Criminal enhancement to the defendant’s sentence, based on his previous criminal history. The defendant’s term of imprisonment totaled 562 months.
The defendant appeals on the following grounds: (1) that the jury selection procedures in the District of Kansas denied him his Sixth Amendment right to a jury drawn from a fair cross-section of the community; (2) that the unusual jury selection procedure used in this case violated the Double Jeopardy Clause of the Fifth Amendment; (3) that the court’s instructions to the jury regarding his Hobbs Act crimes effectively removed one element of the crime from the jury’s consideration; (4) that the court based the Armed Career Criminal sentence enhancement on insufficient evidence; (5) that Congress did not have the power to enact the Hobbs Act; and (6) that the defendant’s convictions under the Hobbs Act and 18 U.S.C. § 924(c) violated the Double Jeopardy Clause by imposing multiple punishments on the defendant for the same conduct.
I. Jury Composition
The defendant first asserts that the jury selection system in the Wichita-Huteh-inson division of the District of Kansas violates the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861, et seq., because it systematically excludes Asians, Blacks, and Hispanics from jury service. The Sixth Amendment grants criminal defendants the right to trial by an impartial jury. U.S. Const, amend. YI. A jury selection system violates that right if the system does not draw its jury members from a fair cross section of the community. See Taylor v. Louisiana,
We review the district court’s factual determinations relevant to the defendant’s Sixth Amendment and Jury Act challenge for clear error, see United States v. Gault,
The Jury Act requires, as a procedural matter, that a defendant’s motion challenging a district’s jury selection process contain “a sworn statement of facts which, if true, wohld constitute a substantial failure to comply with the [Act].” 28 U.S.C. § 1867(d). The defendant did not file such a sworn statement in this case, though he did file a motion with this court to supplement the record on appeal with such a statement. Even though the Tenth Circuit interprets the sworn statement requirement strictly, see Contreras,
In substance, the Jury Act sets forth guidelines for selecting grand and petit juries in federal courts. See 28 U.S.C. § 1861. It requires that each judicial district devise a plan for randomly selecting jurors based on voter registration rolls or lists of actual voters. See id. § 1863(b)(2). The plan adopted by the District of Kansas provides for the random selection of prospective grand and petit jurors from the official lists of actual voters in each of the counties in -the six divisions in Kansas. See D. Kan. R. 38.1. The names of individuals selected from the actual voter lists are placed on a “Master Jury Wheel” for the division in which the individuals reside.' The clerk of the court draws names as needed from the divisional master wheel and mails a jury qualification form to the selected individuals. The form asks the potential jurors to identify their racial and ethnic background. All individuals who return the forms, are eligible for service, and are not excused from service, are placed on the “Qualified Jury Wheel.” One is ineligible to sit on a jury if he or she is not an American citizen, is not eighteen years old,' has not resided in the judicial district for at least one year, cannot speak or understand English, is physically or mentally incapable of serving, or is a felon. See 28 U.S.C. § 1865(b). Moreover, certain classes of persons, such as active military, personnel, are barred as exempt, and others, such as volunteer safety personnel, will be excused upon request. See id. § 1863(b)(5),(6). Once the qualified wheel has been stocked, jury veni-res are randomly selected from the qualified wheel; The defendant argues that this method of jury selection, particularly reliance on lists of actual voters, systematically excludes Asians, Blacks, and Hispanies from jury service in the Wichita-Hutchinson Division of the District of Kansas.
In order to establish a prima facie case that a jury selection system violates the Sixth Amendment fair cross section requirement, a defendant must demonstrate:
(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.
Duren v. Missouri,
The defendant identifies three groups that are allegedly unfairly represented in the District of Kansas’s jury system: Asians, Blacks, and Hispanies. The defendant need not belong to any of these groups in order to have standing to object to their exclusion from jury service. See Taylor,
A. Unfair Representation
1. The Relevant Statistics
The second element of the prima facie ease requires the defendant to show that representation of the distinctive groups on jury venires in the District of Kansas “is not fair and reasonable in relation to their numbers in the community.” Duren,
The government’s position has “intellectual merit.” United States v. Rioux,
Thus, despite the shortcomings of the defendant’s statistical method, we find that his method of comparison was appropriate under the circumstances of this case. See Rioux,
2. The Statistical Showing
In determining whether a group has been underrepresented on jury venires, “courts generally rely on two methods of comparison: absolute disparity and comparative disparity.” Gault,
Distinctive Group Asian Black Hispanic
Percentage of voting age population 1.27% 5.11% 2.92%
Percentage of qualified veniremen .51% 2.55% 1.50%
Absolute Disparity .76% 2.56% 1.42%
Comparative 59.84% ■ 50.09% 48.63% Dispai'ity
In this circuit, “absolute disparity ... is the starting place for all other modes of comparison.” United States v. Yazzie,
The defendant urges us to focus on the comparative disparities rather than the absolute disparities because of the small size of the minority populations in Kansas. Indeed, small absolute disparity figures are less persuasive in a case such as this, where, because of the minorities’ small population, even the complete exclusion of the groups would result in absolute disparities of less than 6%. See United States v. Jackman,
The comparative disparities are larger: 48%, 50%, and almost 60%. While these numbers may be more indicative of a Sixth Amendment violation, they too are distorted by the small population of the different minority groups. “[T]he smaller the group is, the more the comparative disparity figure distorts .the proportional representation.” United States v. Hafen,
Although both statistical measurements have their weaknesses in this situation, there can be no doubt that the figures computed under either method do not demonstrate the type of “marked” or “gross” disparities that we have found necessary to establish that the representation of a group is not fair and reasonable in relation to their number in the community. See Gault,
II. Double Jeopardy
The district court empaneled and swore in a complete jury. Then, after being advised that one of the jurors had child-care responsibilities that would not allow her to serve, the court excused that juror, replaced her with another, and swore in the new juror. This unusual procedure raises a tangle of double jeopardy issues. We review two different lines of cases in .order to resolve those issues.
The Double Jeopardy Clause of the Fifth Amendment states that no person -shall be “twice put in jeopardy of life or limb.” U.S. Const, amend. V. The clause protects criminal defendants against having to endure the risk of conviction twice. Thus, the first relevant line of cases expresses the logical principle that the Double Jeopardy Clause does not apply to situations in which the defendant has been placed in jeopardy only once. These cases have their origin in Ball v. United States,
Only two other circuits have addressed the situation before us, the Ninth and the Sixth, and only the Ninth relied on the principle of continuing jeopardy to reject the defendant’s argument (we discuss the Sixth Circuit’s approach infra). In that case, a jury of twelve, with no alternates, was empaneled and sworn. See United States v. Trigg,
The Ninth Circuit concluded that the unusual procedure “cannot terminate jeopardy any more than a failure of a jury to reach a verdict.” Id. at 1010. The court held that “jeopardy does not terminate during the process of jury selection merely because sworn jurors are excused during the process of selecting alternates.” Id. The Tñgg court apparently interpreted Richardson to mean that there could be no terminating event for Double Jeopardy purposes if the original jury had not, at the least, made a decision on the merits of the case. See also Richardson,
B. The Right to a Particular Tribunal
Trigg and Richardson seem to provide an easy answer here. In equipoise with those cases, however, is the long-standing-principle that a defendant has a “valued right to have his trial completed by a particular tribunal.” Illinois v. Somerville,
The cases protecting the right to a particular tribunal focus on the inception of the proceedings — that is, whether the jury was sworn — while Richardson asks whether there has been an end to those proceedings. We have noted the apparent inconsistency between Richardson and other strains of Double Jeopardy jurisprudence before. See United States v. Wood,
On the other hand, under Richardson a terminating event must occur before the Double Jeopardy Clause even comes into play. Richardson found that a mistrial by virtue of a hung jury did not terminate jeopardy. Accordingly, the Ninth Circuit read Richardson to require no manifest necessity analysis at all, on the basis that jury selection procedures are much less final than the hung jury at issue in Richardson. See Trigg,
C. Resolving the Ttvo Principles
The precedent, however, does not conflict. Two points make this clear. First, it is mistaken to interpret Richardson to mean that nothing short of an acquittal or unreversed conviction implicates the Double Jeopardy Clause. Richardson used the doctrine of “continuing jeopardy” to find that a mistrial after a hung jury was not a terminating event, and therefore no double jeopardy violation occurred. The Richardson Court primarily relied, however, not on “continuing jeopardy” cases, but on the century and a half of jurisprudence that had already made clear that double jeopardy did not bar retrial in such a circumstance. Thus, the observation that “ ‘continuing jeopardy’ describes both a concept and a conclusion” is appropriate. Breed v. Jones,
Second and more importantly, continuing jeopardy also “describes ... a concept." Breed v. Jones,
In order to determine whether the original proceeding ever “terminated,” we look to the interests of the Double Jeopardy Clause. See Breed,
The question of whether jeopardy has objectively “terminated” should be analyzed in terms of the policies of the Double Jeopardy Clause, namely its concern that repeated trials may subject a defendant to embarrassment, expense and ordeal and compel him to live.in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Jeopardy may be said to have terminated only when the posture of a trial in some objective sense leaves that defendant in such a position that resumption of proceedings would implicate those policies.
Lydon,
The procedure in this case did not threaten the defendant with any of the harms that the Double Jeopardy Clause was meant to prevent. The replacement of one juror before any witnesses had testified did not reasonably subject the defendant to “embarrassment, expense and ordeal,” or force him to live in a “continuing state of anxiety,” to any greater extent than that he would have experienced if the district court had sworn an alternate along with the original twelve jury members and thereby avoided the issue before us altogether. Furthermore, for us to hold that the trial terminated at such a preliminary stage, without any allegation that the replacement was attributable to prosecu-torial tactics, would frustrate “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington,
The defendant cannot point to any event that terminated the original jeopardy. That being the case, his Double Jeopardy challenge cannot succeed.
III. United States v. Gaudin
The defendant argues next that, in conflict with the Supreme Court’s decision in United States v. Gaudin,
In Gaudin, the government charged the defendant with making false statements on a loan document in violation of 18 U.S.C. § 1001. See id. at 507,
In this case, the defendant was charged with, among other things, violating the Hobbs Act, a statute that makes it a crime to obstruct interstate commerce by robbery. See 18 U.S.C. § 1951. One element of that offense is interference with interstate commerce. See Stirone v. United States,
The defendant need not have intended or anticipated an effect on interstate commerce. You may find the effect is a natural consequence of his actions. If you find the defendant intended to take certain actions, that is, he did the acts charged in the Indictment in order to obtain property, and you find those actions have either caused, or would probably cause, an effect on interstate commerce, then you may find the requirements of this element have been satisfied.
If you decide there was any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal. For example, if a successful robbery of money would prevent the use of those funds to purchase articles which travel through interstate commerce, that would be a sufficient effect on interstate commerce.
Jury Instruction # 15. Aceoi'ding to the defendant, the italicized portion of this instruction dictated to the jury how they should apply the law to the facts of this case and, therefore, violated the Gaudin rule. ■
The defendant’s case is unlike Gaudin in at least one important respect. In Gaudin, the court did not submit the materiality element to the jury. Two other circuits appear to have held that the Gaudin rule is limited to cases in which the element at issue was not submitted to the jury. See United States v. Castleberry,
The court did not tell the jury that if they believed the government’s evidence, they had to find the interstate commerce element satisfied. Instead, the court merely concluded its definition of interstate commerce by giving an example. That example did not tie a legal result to the particular facts of the defendant’s case. The defendant goes too far, in reading Gaudin to prohibit attempts to clarify the law for jurors, especially on such an unfamiliar subject as interstate commerce.
IV. Armed Career Criminal Enhancement
The defendant also challenges his sentence enhancement for being an Armed Career Criminal pursuant to 18 U.S.C. § 924(e) and section 4B1.4. of the Sentencing Guidelines. When reviewing sentence enhancements under the sentencing guidelines, we accept the factual findings of the district court unless they are clearly erroneous. See United States v. Farnsworth,
A criminal defendant is subject to the Armed Career Criminal enhancement if he is convicted of violating 18 U.S.C. § 922(g) and has at least three prior convictions for “violent felonies” or “serious drug offenses.” See U.S. Sentenci0ng Guidelines Manual § 4B1.4 commentary; 18 U.S.C. § 924(e)(2) (defining “violent felony” and “serious drug offense”). The presentence report recommended that Mr. Shinault be sentenced as an Armed Career Criminal. The defendant objected on the grounds that two of three convictions forming the basis for the Armed Career Criminal enhancement—those listed in paragraphs 53 and 54 of the presentence report—charged a person other, than Mr. Shinault. The charging documents in those convictions named Richard L. Bumphus as the perpetrator for one crime and Michael Washington for the other.
At the sentencing hearing, the man who prepared the presentence report, Jim Fritz, a probation officer from the U.S. Probation Department, testified that Mr. Shinault was in fact the person convicted of the crimes listed in paragraphs 53 and 54 of the presen-tence report. Mr. Fritz testified first that court documents pertaining to the prior convictions noted that Richard L. Bumphus and Michael Washington were aliases of Mr. Shi-nault. Second, Mr. Fritz testified that he also referenced Mr. Shinault’s FBI “rap sheet,” which listed him as the perpetrator of the two previous crimes. Mr. Fritz confirmed that the FBI does not enter a conviction on a person’s , record without first comparing fingerprint samples to ensure that the updated record is accurate. According to Fritz’s testimony, the FBI had matched Mr. Shinault’s fingerprints with those of the defendants in the previous cases. The district court made its findings on the basis of this evidence, and we cannot say that it clearly erred in doing so.
The defendant asserts that the district court also clearly erred in finding that the third prior conviction was established even though the government presented no information relating to it at the sentencing hearing. The defendant, however, did not object to the presentence report on the ground that the third conviction was inaccurate; the defendant only contended that he was not the person convicted of the crimes identified in paragraphs 53 and 54. “Failure to object to a fact in a presentence report, or failure to object at the hearing, acts as an admission of fact.” United States v. Deninno,
V. Commerce Clause and Multiple Punishment Challenges
The defendant raises two final arguments that this court has previously addressed and rejected. First, the defendant contends that Congress lacked the constitutional authority under the Commerce Clause to enact the Hobbs Act. We have held, however, that “[b]ecause the Hobbs Act regulates activities that in aggregate have a substantial effect on interstate commerce,” the Act is a “permissible exercise of the authority granted to Congress under the Commerce Clause.” United States v. Bolton,
The defendant also argues that his convictions violate his Fifth Amendment rights. For each of the defendant’s acts of robbery, the jury convicted him of violating both the Hobbs Act (committing a robbery affecting interstate commerce) and 18 U.S.C. § 924(c) (using or carrying a weapon during a crime of violence). The crime of violence supporting the defendant’s section 924(c) conviction was the Hobbs Act violation. The defendant contends that his convictions under both the Hobbs Act and section 924(c) violated the double jeopardy protection against receiving multiple punishment for the same conduct. See Blockburger v. United
Conclusion
We hold (1) that the jury selection procedures in the Wichita-Hutchinson division of the District of Kansas did not deny the defendant the right to a jury drawn from a fair cross-section of the community, (2) that the unusual jury selection procedure used in this case did not violate the defendant’s right not to be tried twice for the same offense, (3) that the court did not take an element of the crime away from the jury’s consideration, (4) that the court did not clearly err in making its factual determinations related to the Armed Career Criminal sentence enhancement, (5) that Congress did not exceed its constitutional authority under the Commerce Clause in passing the Hobbs Act, and (6) that the defendant’s convictions under the Hobbs Act and 18 U.S.C. § 924(c) do not amount to multiple punishments for the same conduct. We AFFIRM.
Notes
. In Watkins, the defendant consented to the procedure, and therefore the court avoided the manifest necessity analysis. See Watkins,
Dissenting Opinion
dissenting:
I concur with everything that the court has said with one reservation. I cannot accept the court’s disregard for clear and unmodified Supreme Court precedent that once a jury is empaneled and sworn, double jeopardy attaches and the defendant has a “ ‘valued right to have his trial completed by a particular tribunal.’ ” See Arizona v. Washington,
The cases which articulate a defendant’s right to a particular tribunal are easily harmonized with the line of eases requiring some event to terminate the original jeopardy. See Richardson v. United States,
Although Defendant does not appear to have objected initially to the replacement of the juror after the original jury was empaneled and sworn, I agree with the majority’s footnote .that “neither the court nor counsel made [Defendant aware of the constitutional right that he was1 forgoing so that he could make an informed, conscious waiver.” Ante, at - n. 1; see Rich,