NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

KENNETH SHAYE SIMMONS, 

Defendant-Appellant.

No. 22-30134

D.C. No. 

4:20-cr-00226-DCN-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

David C. Nye, Chief District Judge, Presiding

Submitted November 16, 2023**

Seattle, Washington

Before: McKEOWN and GOULD, Circuit Judges, and BENNETT,*** District 

Judge.

Appellant Kenneth Simmons is a Black man who was convicted by jury for 

failure to register as a sex offender under 18 U.S.C. § 2250(a). He timely appeals

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Richard D. Bennett, United States Senior District 

Judge for the District of Maryland, sitting by designation.

FILED

NOV 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

his conviction on the basis that he was denied the right to a fair and impartial jury 

under the Sixth Amendment. Duren v. Missouri, 439 U.S. 357, 358–60 (1979). We 

have jurisdiction under 28 U.S.C. § 1291 and review a defendant’s challenge to the 

composition of a jury “independently and non-deferentially.” United States v. 

Hernandez-Estrada, 749 F.3d 1154, 1158 (9th Cir. 2014) (en banc) (quoting United 

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

1. Mr. Simmons’ claim was untimely even under Rule 12 of the Federal Rules 

of Criminal Procedure, which offers a more lenient standard than 28 U.S.C. 

§ 1867(a).

1

 See Paige v. United States, 493 F.2d 22, 23 (9th Cir. 1974) (applying 

both § 1867(a) and Rule 12). Rule 12 of the Federal Rules of Criminal Procedure 

requires that a party show “good cause” when making an untimely pre-trial motion. 

See Fed. R. Crim. P. 12(c)(3). Mr. Simmons, whose counsel was aware of the jury 

composition before the jury was impaneled, shows no good cause for raising his

cross-section challenge after opening statements had been made.

2. Even if Mr. Simmons’ motion was timely, he cannot make a prima facie 

case under Duren, 439 U.S. 357. For a jury pool to be deemed unconstitutional

under Duren, the defendant must establish that: (1) the excluded group is a 

distinctive group in the community; (2) the underrepresentation of the group in jury 

1 A fair cross-section challenge must be brought before voir dire or “within seven 

days after the defendant discovered or could have discovered, by the exercise of due 

diligence, the grounds therefor, whichever is earlier.” 28 U.S.C. § 1867(a).
3 

venires is not fair and reasonable in relation to the size of the group; and (3) “this 

underrepresentation is due to systematic exclusion of the group in the jury-selection 

process.” Hernandez-Estrada, 749 F.3d at 1159 (quoting United States v. Miller, 

771 F.2d 1219, 1228 (9th Cir. 1985)). “The second prong ‘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.’” Id. (quoting United 

States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996)).

Mr. Simmons shows no data supporting his allegations of 

underrepresentation and merely infers systematic exclusion from the jury-selection 

process. Appellant’s failure to provide data is noteworthy given that the record 

reflects that the District Court correctly noted the jury pool was “almost exactly 

consistent with Eastern Idaho statistically.” Moreover, Mr. Simmons places the 

burden on the District Court to defend its selection system. But as the defendant, 

Mr. Simmons must carry the burden of making a prima facie case under Duren to 

challenge the selection system as unfair. Id.

AFFIRMED.