NOT FOR PUBLICATION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

- 301 34
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 APPEALS2

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 , 35 8

– 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. E ven if Mr. Simmon s ’ motion w as 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 115 9 (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
S tates 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 correct ly 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 mak ing a prima fac ie case under Duren to challenge the selection system as unfair

. Id

. AFFIRMED.