130 Nev., Advance Opinion 54 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

SHAFIQ ARMED AFZALI, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 54019 

FILED 

MAY 2 9 2014 

TRACE K. LINDEMAN 

CLE• SU'REM • 

BY LAP .111.... 

rt CLERK 

Appeal from a judgment of conviction, pursuant to -a jury 

verdict, of 11 counts of lewdness with a child, 15 counts of sexual assault 

of a child under 14 years of age, 2 counts of first-degree kidnapping, 1 

count of second-degree kidnapping, 3 counts of battery with intent to 

commit a crime, 3 counts of using a minor in the production of 

pornography, and 22 counts of possession of child pornography. Eighth 

Judicial District Court, Clark County; James M. Bixler, Judge. 

Remanded. 

Philip J Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public 

Defender, Clark County, 

for Appellant. 

Catherine Cortez Masto, Attorney General, Carson City; Steven B. 

Wolfson, District Attorney, Steven S. Owens, Chief Deputy District 

Attorney, and Parker P. Brooks, Deputy District Attorney, Clark County, 

for Respondent. 

CHIEF 

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BEFORE THE COURT EN BANC. 

OPINION 

By the Court, HARDESTY, J.: 

Appellant Shafiq Ahmed Afzali asserts that the district court 

violated his constitutional rights by obstructing his ability to challenge the 

racial composition of the three grand juries that indicted him.' Prior to 

his trial, Afzali requested information that would identify the racial 

composition of the three separate grand juries that indicted him, and the 

100-person venires from which the grand jurors were selected. The 

district court denied him the requested information. 

Afzali argues that he had the right to challenge the grand jury 

selection process under either the Equal Protection or the Due Process 

Clauses of the United States Constitution, but that he was unable to 

determine whether he had a viable challenge to the racial composition of 

the three grand juries that indicted him because the court failed to provide 

the information requested. 

We conclude that Afzali has a right to the information he 

requested. Without this information, Afzali's ability to show a potential 

violation of his constitutional right to a grand jury drawn from a fair crosssection of the community is limited. Therefore, we conclude that a limited 

remand is necessary for the district court to conduct further proceedings 

consistent with this opinion. 

lAfzali raises a number of additional issues on appeal. However, 

because we determine that a limited remand is necessary, we do not 

address those issues at this time. 

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FACTS AND PROCEDURAL HISTORY 

In July 2007, Afzali was charged by indictment with 17 felony 

counts regarding crimes of a sexual nature against 3 children. He was 

then charged by a superseding indictment with 42 felony counts regarding 

crimes of a sexual nature based on his acts against the 3 child victims and 

the 25 images of child pornography he possessed. He was later charged by 

a final second superseding indictment with 63 felony counts regarding 

crimes of a sexual nature. 

In October 2007, Afzali filed a motion requesting information 

on the selection process for the grand jury, the racial composition of the 

three grand juries that indicted him, and the racial composition of the 

entire 100-person venires from which those grand jurors were chosen. He 

stated that his request was being made to evaluate whether he had 

grounds to bring an equal protection or due process challenge to the makeup of the three grand juries or the grand jury selection process. 

The district court held two hearings on the motion. During 

the first hearing, Afzali's counsel stated that she was concerned about the 

grand jury selection process and the ethnic background of the grand jury. 

The district court explained that it had no such information, but would 

inquire of the then-sitting chief judge about the procedure for obtaining 

the information Afzali was requesting. During the second hearing, the 

district court provided Afzali with information on the grand jury selection 

process; however, it explained that race information did not exist. It also 

explained that the records of all potential grand jurors were shredded, 

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except for the records of those 50 potential grand jurors selected by the 

judges from the 100-person poo1. 2 

In November 2007, the Eighth Judicial District Court 

Administration (Eighth District) filed a motion to quash a subpoena duces 

tecum served on the jury commissioner by Afzali's counsel. The subpoena 

sought the names and contact information for the 100-person venires for 

each of the three grand juries that indicted Afzali. The next month the 

district court conducted hearings on the Eighth District's motion to quash. 

Ultimately, the district court concluded that the Eighth District handled 

the information Afzali was requesting, not the jury commissioner; the 

personal information of the 50 potential grand jurors was destroyed but 

their contact information was preserved; and Afzali was "entitled to it." 

The district court granted the motion to quash as to the jury commissioner 

but denied it as to the Eighth District because only the latter had access to 

the information requested. 

In January 2008, the district court conducted a hearing on the 

disclosure of the grand jury contact information. Afzali's counsel asserted 

2Under NRS 6.110, the selection of the grand jury begins when the 

clerk of the court solicits 500 qualified persons at random and mails a 

questionnaire to those selected. The names of the first 100 persons who 

return the completed questionnaire to the clerk are submitted to the 

district court judges for that judicial district. NRS 6.110(1). The district 

court judges then select one name from the list until 50 persons have been 

selected, at which time the clerk issues a venire. NRS 6.110(2). Finally, 

the presiding district court judge selects 17 persons at random from the 

50-person group to serve as the grand jury. NRS 6.110(3). 

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that, if given the contact information for the 50 potential grand jurors, she 

would conduct an independent investigation on the racial composition of 

that group. The State objected, arguing that the disclosure would violate 

the secrecy of the grand jury. In a compromise, the district court asked 

Afzali's counsel to draft a questionnaire to be given to the 50 potential 

jurors. The district judge stated that he would then provide that 

questionnaire to the jury commissioner and the chief judge, who 

supervises the grand jury. 

In March 2008, then-Chief Judge Hardcastle entered an order 

denying Afzali's request for the grand jury contact information. In 

denying Afzali's request, Judge Hardcastle reviewed Afzali's questionnaire 

and determined that "the proper procedure and notice to all interested 

parties to challenge the methods used to select the grand jury has not been 

followed." In June 2008, Afzali requested a hearing on Judge Hardcastle's 

order, arguing that he had followed the district court's direction in 

requesting the grand jury contact information. The district court did not 

grant the request, but admitted, "I don't know we know the procedure." 

Afzali's trial took place in March 2009, and the jury ultimately 

found Afzali guilty as to counts 4-39, 42-54, and 56-63. The jury was hung 

as to counts 1-3, and found Afzali not guilty as to counts 40, 41, and 55. 

The district court entered its judgment of conviction in June 2009. This 

appeal followed. 3 

3In November 2007, during the time Afzali was attempting to obtain 

the information on the grand jury, he also filed a petition for writ of 

habeas corpus. He argued that the district court's grand jury selection 

process violated his constitutional and statutory rights because the 

destruction of records concerning proposed grand jurors prevented him 

continued on next page. . . 

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DISCUSSION 

Afzali contends that without access to information about the 

racial composition of the three grand jury pools that indicted him, he has 

no way to know whether he has grounds to bring a challenge to the grand 

jury selection process under the Equal Protection Clause or the Due 

Process Clause. We agree. 

The United States Supreme Court has held that "the criminal 

defendant's right to equal protection of the laws has been denied when he 

is indicted by a grand jury from which members of a racial group 

purposefully have been excluded." Vasquez v. Hillery, 474 U.S. 254, 262 

(1986). Furthermore, a person has the right to have the grand jury 

selected from a fair cross-section of the community. Adler v. State, 95 Nev. 

339, 347, 594 P.2d 725, 731 (1979) ("[I]t is settled that a grand jury must 

be drawn from a cross-section of the community, and there must be no 

systematic and purposeful exclusion of an identifiable class of persons."). 

A federal statute was enacted in order to squarely address a 

defendant's right to obtain the information necessary to mount challenges 

to the composition of the grand jury in federal court. See 28 U.S.C. § 

1867(f) (2006) (allowing parties who are preparing a motion to challenge 

the grand jury composition to have access to "Lae contents of records or 

. . . continued 

from obtaining the evidence necessary to support any challenge to the 

racial composition of the grand jury. The State filed a return, arguing 

that it was not part of the grand jury selection process and it thus could 

not address that process. In December 2008, prior to the filing of this 

appeal, the district court denied the petition. 

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papers used by the jury commission or clerk in connection with the jury 

selection process"). In analyzing this statute, the United States Supreme 

Court stated that its purpose was to ensure grand juries were selected at 

random from a fair cross-section and noted that "without inspection, a 

party almost invariably would be unable to determine whether he has a 

potentially meritorious jury challenge." Test v. United States, 420 U.S. 28, 

30 (1975). 

Certainly, Nevada is not bound by this federal statute, and it 

does not have a state statute providing the right to inspect grand jury 

records. Nevertheless, this court is bound by Supreme Court precedent, 

and in Adler, we recognized that a defendant has a constitutional right to 

a grand jury drawn from a fair cross-section of the community 95 Nev. at 

347, 594 P.2d at 731. As the Supreme Court of Missouri noted when 

considering this same issue, "[t]his cross-section requirement would be 

without meaning if a defendant were denied all means of discovery in an 

effort to assert that right." State ex rel. Garrett v. Saitz, 594 S.W.2d 606, 

608 (Mo. 1980). Thus, we hold that Afzali is entitled to information 

relating to the racial composition of the grand jury so that he may assess 

whether he has a viable constitutional challenge. 

Based on our holding, we conclude that a limited remand is 

necessary in order for the district court to make available to Afzali the 

information he requested. On remand, the district court should first 

determine whether information is available on the racial composition of 

the three grand juries that indicted Afzali and on the 100-person venires 

from which those jurors were chosen, in whatever form and by whatever 

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means.4We recognize that during the prior district court hearings 

surrounding Afzali's request, there was some confusion as to what 

information was actually retained by the district court regarding the 

grand jury pools involved in Afzali's indictments. The record 

demonstrates that at least the contact information for the 50 proposed 

grand jurors was available. Once the district court obtains the 

information, it should be provided to Afzali so that he can determine 

whether he has grounds for a fair cross-section challenge. If he 

determines that there is a viable challenge, he should make the challenge 

in the district court so that the court can resolve the matter and enter 

appropriate findings of facts and conclusions of law. This court can then 

review that decision, if challenged. If the district court is unable to 

provide the requested information after exploring all possible avenues, 

then the district court should enter appropriate findings and certify them 

to this court. This court will then determine whether the failure to 

provide this information requires reversal of the judgment of conviction. 

4For example, contact information may be available through payroll 

records pertaining to grand jurors who served, see NRS 6.150 (grand juror 

fees), or from the transcripts of the grand jury proceedings. Thus, if the 

racial composition of those jurors is not otherwise known, the district court 

may need to contact the grand jurors in order to obtain the necessary 

information. 

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C.J. 

Parraguirre 

Cherry 

The district court shall have 90 days to conduct the necessary proceedings 

required as a result of the limited remand of this matter. 

\C‘,. J. 

Hardesty 

We concur: 

J. 

Gibbons 

Poem. ay , J. 

Pickering 

Douglas 

diapH, 

lier ame• 

Saitta 

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