1

Grisham also contends that a prosecution witness' in-court

identification of him violated the Due Process Clause of the

Fifth Amendment. Assuming for the sake of argument that the

in-court identification violated due process, Grisham's

contention is not a sufficient ground for reversal of his

conviction. The admission of unreliable identifications is

subject to harmless error analysis. Marsden v. Moore, 847 F.2d

1536, 1546 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct.

534, 102 L.Ed.2d 566 (1988). After reviewing the overwhelming

evidence against Grisham, we are left with no doubt that the jury

United States Court of Appeals,

Eleventh Circuit.

No. 94-6459.

UNITED STATES of America, Plaintiff-Appellee,

v.

Terry Wayne GRISHAM, aka Terry Wayne Girsham, DefendantAppellant.

Sept. 12, 1995.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CR-93-N-170-S), Edwin L. Nelson, Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and JOHNSON,

Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

Terry Wayne Grisham appeals his conviction for bank robbery.

The issue presented in this appeal is whether the Northern District

of Alabama's ("the Northern District") practice of selecting juries

from the district at large violates the Fifth and Sixth Amendments

of the Constitution merely because of the disparity between the

percentage of African-Americans on the qualified jury wheels

created from voter registration lists of the district at large and

the percentage of African-Americans in the population of the

Southern Division of the Northern District ("the Southern

Division").1 Because we conclude that it does not, we affirm
would have convicted him even absent the purportedly unreliable

in-court identification. 

 2The caption for the other case is United States v. Stutson,

et al., CR-93-N-1052-S. 

Grisham's conviction.

I. STATEMENT OF THE CASE

In July 1993, Terry Wayne Grisham was indicted on one count of

bank robbery, in violation of 18 U.S.C.A. § 2113(a) (West 1984 &

Supp.1995). The case was initially set for trial on October 5,

1993. Following voir dire, Grisham moved to strike the jury panel

"because of the inadequate representation of persons of the

minority race." The district court continued the trial to permit

defense counsel to file a formal challenge to the jury selection

procedures of the Northern District and consolidated the hearing on

Grisham's motion with a similar challenge raised by defendants in

an unrelated criminal action.2

Grisham subsequently filed written motions challenging the

methods and procedures for selecting jurors for grand and petit

juries in the Northern District. Grisham contended that the

selection procedures disproportionately excluded African-Americans

from jury service, in violation of (1) the Jury Selection and

Service Act of 1968 ("the Act"), 28 U.S.C.A. § 1861, et seq. (West

1994), which provides that "all litigants shall have the right to

grand and petit juries selected at random from a fair cross section

of the community in the district or division wherein the court

convenes," (2) his Sixth Amendment right to a jury pool composed of

a fair cross-section of the community, and (3) the Fifth Amendment

rights of jurors to equal protection under the law. After
 3

The Act provides that, in criminal cases, challenges to the

jury selection process under the Act must be brought "before the

voir dire examination begins, or within seven days after the

defendant discovered or could have discovered, by the exercise of

diligence, the grounds therefor, whichever is earlier." 28

U.S.C.A. § 1867(a) (West 1994). 

conducting an evidentiary hearing, the district court ruled that

Grisham's statutory challenge was untimely, 3 and rejected his

constitutional claims on the merits. At the conclusion of a jury

trial, Grisham was convicted on one count of bank robbery. The

district court sentenced him to 225 months' imprisonment.

II. ANALYSIS

 Challenges to the jury selection process may be based on the

fair cross-section requirement of the Sixth Amendment, Duren v.

Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the

equal protection component of the Fifth Amendment, Cunningham v.

Zant, 928 F.2d 1006 (11th Cir.1991), or a substantial failure to

comply with the provisions of the Act. United States v. Maskeny,

609 F.2d 183, 191 (5th Cir.), cert. denied, 447 U.S. 921, 100 S.Ct.

3010, 65 L.Ed.2d 1112 (1980). Because Grisham concedes that the

district court correctly concluded that his statutory claim was

untimely, only the constitutional issues are before us on appeal.

We review de novo constitutional challenges to jury selection

processes. See, e.g., United States v. Rodriguez, 776 F.2d 1509,

1511 (11th Cir.1985) (conducting de novo review); United States v.

Tuttle, 729 F.2d 1325, 1327 (11th Cir.1984) (same), cert. denied,

469 U.S. 1192, 105 S.Ct. 968, 83 L.Ed.2d 972 (1985).

A. The Northern District's Jury Selection Process

At issue in this action are two separate jury selection plans
adopted by the Northern District pursuant to provisions of the Act.

The grand jury that indicted Grisham was selected pursuant to a

plan adopted by the district court in March 1989. The petit jury

that tried Grisham was selected pursuant to a plan which went into

effect in October 1993. The methods and procedures of these two

plans ("the plans") are substantially identical.

The Northern District is divided into seven statutory

divisions. 28 U.S.C.A. § 81(a) (West 1994). Pursuant to the

plans, which were adopted by all of the judges of the United States

District Court for the Northern District and approved by a panel of

the judicial council of the United States Court of Appeals for the

Eleventh Circuit, the district court selects juries on a

district-wide basis, as opposed to a division-wide basis.

As required by the plans, the clerk of the district court has

established a master jury wheel ("MJW"), drawn by random selection

from lists of registered voters from each county in the district.

Periodically, as provided in the plans and in 28 U.S.C.A. §

1864(a), the clerk randomly selects names from the MJW and mails a

juror questionnaire to each person selected. Returned

questionnaires are examined to determine which persons are

qualified for jury service and not exempt or due to be excused.

Those persons are placed on the qualified jury wheel ("QJW"). The

criteria for determining juror qualifications, exemptions, and

excuses are set forth in the plans. Only those questionnaires

which are returned are utilized; the clerk does not follow up or

contact persons who fail to return questionnaires. Nor does the

clerk follow up on questionnaires that are returned by the post
office as undeliverable.

At the time of Grisham's grand jury proceeding, the clerk sent

24,000 questionnaires to persons randomly selected from the MJW.

Of those 24,000 questionnaires, 5,479 were returned as

undeliverable, 3,135 elicited no responses, and more than 5,000

persons were properly excused from service. Eventually, the QJW

was composed of 9,188 persons, of which 15.9% were AfricanAmerican.

At the time of Grisham's trial, the clerk placed 37,000 names

on the MJW. Questionnaires were mailed to 8,076 persons randomly

selected from the MJW. Of those 8,076 questionnaires, 1,123 were

returned as undeliverable, 1,175 were not returned, and

approximately 1,400 persons were excused. The QJW comprised 4,359

persons, of which 13.59% were African-American.

The percentage of the population of the Northern District

eligible for jury service that is African-American is 18.31%. In

contrast, 28.98% of the population of the Southern Division

eligible for jury service is African-American.

B. The Sixth Amendment

 The Sixth Amendment guarantees a criminal defendant the right

to be indicted and tried by juries drawn from a fair cross-section

of the community. Duren, 439 U.S. at 359, 99 S.Ct. at 666; Taylor

v. Louisiana, 419 U.S. 522, 526-31, 95 S.Ct. 692, 695-98, 42

L.Ed.2d 690 (1975); Cunningham, 928 F.2d at 1013. As the Supreme

Court explained in Holland v. Illinois, the fair cross-section

requirement is "not explicit in the text" of the Sixth Amendment,

"but is derived from the traditional understanding of how an
"impartial jury' is assembled. That traditional understanding

includes a representative venire, so that the jury will be ...

"drawn from a fair cross section of the community.' " 493 U.S.

474, 480, 110 S.Ct. 803, 807, 107 L.Ed.2d 905 (1990) (quoting

Taylor, 419 U.S. at 527, 95 S.Ct. at 696) (emphasis in original).

The representativeness requirement serves the goal of impartiality

because it prevents the government from drawing up "jury lists in

such manner as to produce a pool of prospective jurors

disproportionately ill disposed towards one or all classes of

defendants." Id.

 To establish a prima facie case that a jury selection process

does not produce a fair cross-section of the community, a defendant

must show (1) that the group alleged to be excluded is a

distinctive group in the community, (2) that representation of the

group in venires is not fair and reasonable in relation to the

number of such persons in the community, and (3) that the

underrepresentation is due to systemic exclusion of the group in

the jury-selection process. Duren, 493 U.S. at 364, 110 S.Ct. at

680. The government concedes that Grisham has satisfied the first

element of his prima facie case, but maintains that he fails both

the second and third elements. Because we conclude that Grisham

fails the second element, we limit our discussion to that issue.

See United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984)

(failure on any element of the prima facie case ends a challenge

under the Sixth Amendment).

 To examine the second element, we must compare the difference

between the percentage of the distinctive group among the
 4

To the extent that Grisham is requesting this panel to

overrule the 10 percent absolute disparity requirement, we are

without power to do so. See United States v. Machado, 804 F.2d

1537, 1543 (11th Cir.1986) (only the Supreme Court or the

Eleventh Circuit sitting en banc can overrule the decision of a

prior panel). See also, Maskeny, 609 F.2d at 190 (declining to

examine methods other than absolute disparity). 

 5The government contends that even if the population of the

Southern Division is used as the relevant community, the 10

percent threshold is not met. To reach this conclusion, the

population eligible for jury service and the percentage of the

distinctive group on the QJW. Pepe, 747 F.2d at 649; United

States v. Esle, 743 F.2d 1465, 1479-80 n. 3 (11th Cir.1984)

(Tjoflat, J., concurring). If the absolute disparity between these

two percentages is 10 percent or less, the second element is not

satisfied. Rodriguez, 776 F.2d at 1511; Tuttle, 729 F.2d at

1327.4

Here, if the relevant community to be compared with the QJW is

the Northern District, then the absolute disparity in the context

of both Grisham's grand and petit juries is substantially less than

10 percent. The percentage of African-Americans among the

population of the Northern District eligible for jury service was

18.31%, whereas the percentage of African-Americans on the grand

jury QJW was 15.9% and on the petit jury QJW was 13.59%.

Grisham contends, however, that the relevant community to be

compared with the QJWs is not the Northern District, but the

Southern Division. If that is correct, he may satisfy the second

element because the disparity between the 28.98% African-American

population of the Southern Division eligible for jury service and

the 15.9% and 13.59% African-American composition of the QJW for

Grisham's grand and petit juries is greater than 10 percent. 5
government would have us compare the percentage of AfricanAmericans in the eligible population of the Southern Division

(28.98%) with the percentage of persons from the Southern

Division on the QJW who are African-American (19.96%). However,

the fact that 19.96% of persons from the Southern Division on the

QJW are African-American is irrelevant. The fact remains that

African-Americans comprise only 15.9% and 13.59% of the jury

pools from which Grisham's grand and petit juries were drawn. 

Grisham advances two bases for his position: (1) that the

community contemplated by the Sixth Amendment's fair cross-section

requirement is smaller than the district at large, and (2) that

Congress has defined the relevant community as the Southern

Division.

1. The meaning of "community"

In this Circuit's prior cases, we have not had occasion to

define the meaning of "community" in the context of challenges to

federal jury selection systems. The prior cases simply called for

a comparison between the racial composition of the community from

which the district court drew the jury wheel and the racial

composition of the jury wheel. See, e.g., Pepe, 747 F.2d at 649;

Gibson v. Zant, 705 F.2d 1543, 1547 (11th Cir.1983). We must,

therefore, decide for the first time what geographical parameters

the fair cross-section requirement, which is implicit in the Sixth

Amendment, imposes on the selection of jurors.

 The geographical parameters of the source of the jury is not

a subject about which the Sixth Amendment is silent. The Sixth

Amendment provides that criminal defendants are entitled to trial

"by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been

previously ascertained by law." (emphasis added). This provision
of the Sixth Amendment is known as the vicinage provision. At

common law, a criminal defendant was entitled to a jury drawn from

the locality of the crime, usually an English county. See Drew L.

Kershen, Vicinage, 29 Okla.L.Rev. 801, 813-16 (1976). In

considering amendments to the Constitution, Congress debated

whether to provide a guarantee to federal criminal defendants

regarding vicinage. Those in favor of a vicinage provision sought

narrow territorial limits akin to those existing at common law.

Id. at 816-44. The text of the Sixth Amendment represents a

compromise: a constraint on the source of the jury was

constitutionalized, but the size of the vicinage was left to

Congressional determination. See Williams v. Florida, 399 U.S. 78,

96, 90 S.Ct. 1893, 1903-04, 26 L.Ed.2d 446 (1970). As this Court

has previously observed, "[i]t was apparently understood that the

districts mentioned in the amendment would be defined by Congress

in the Judiciary Act, which was pending while the amendments were

being debated." United States v. Louwsma, 970 F.2d 797, 801 (11th

Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1383, 122 L.Ed.2d

759 (1993). Thus, neither the language of the vicinage provision

nor its legislative history suggests that the geographical area

from which the jury is summoned must be smaller than the judicial

district created by Congress.

 Furthermore, binding precedent interpreting the vicinage

provision makes it clear that the Sixth Amendment provides Congress

and the courts flexibility in selecting the source of the jury

pool. For example, the United States Supreme Court has held that

the Sixth Amendment does not require that the jury drawn be from
the whole district. Ruthenberg v. United States, 245 U.S. 480,

482, 38 S.Ct. 168, 169, 62 L.Ed. 414 (1918) (the plain language of

the Sixth Amendment is satisfied by a jury drawn from a

geographical subdivision of a judicial district). Additionally, as

interpreted by the former Fifth Circuit, the vicinage provision

does not require that any jurors reside in the immediate vicinity

of the occurrence of the crime. See United States v. James, 528

F.2d 999, 1021 (5th Cir.) (the Sixth Amendment does not entitle a

criminal defendant to trial in the division where the crime was

committed even though the division in which the trial is conducted

selects its juries only from division-based voting lists), cert.

denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). See

also United States v. Grayson, 416 F.2d 1073, 1076 (5th Cir.1969)

(no right to be indicted in the division where the offense

occurred), cert. denied, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d

753 (1970). Thus, on the basis of the text of the vicinage

provision, its legislative history, and the caselaw interpreting

it, we conclude that district-based jury selection comports with

the vicinage provision of the Sixth Amendment.

Grisham's contention to the contrary is somewhat

extraordinary. He suggests that the fair cross-section requirement

mandates that we graft onto the Sixth Amendment a more restrictive

definition of community than the definition that is expressly

provided in the Sixth Amendment itself. We disagree.

 As noted above, the fair cross-section requirement is a means

of ensuring that the Sixth Amendment's guarantee of an impartial

jury is met. Holland, 493 U.S. at 480, 110 S.Ct. at 807. A
representative jury pool serves this goal because a diversity of

viewpoints among the jury pool hedges against the possibility of a

jury acting on prejudices shared by a homogenous group. Id.

Understanding "community" for the purposes of a federal criminal

defendant's fair cross-section claim to be the same as the

parameters set forth in the Sixth Amendment's vicinage provision is

consistent with the goal of impartiality. The QJWs in the Northern

District include the full range of racial, social, and economic

diversity in the region. So long as the lines of the geographical

area from which the jury wheel is compiled are not drawn for the

purpose of racial gerrymandering, see United States v. Cannady, 54

F.3d 544 (9th Cir.1995) (use of division-based jury wheels is

proper absent evidence of gerrymandering), selecting juries at

random from a predetermined geographical area provides a

sufficiently diverse jury pool to ensure impartiality.

 Impartiality may, in fact, be better served by juries drawn

from areas not in close proximity to the crime. One of James

Madison's principal arguments against incorporating a common law

vicinage requirement was that the sympathy of local citizens with

the perpetrator of an offense against the federal government would

render successful prosecution impossible. See Kershen supra at 841

(discussing Madison's view). We need look no further than local

prosecutions during the civil rights movement to witness Madison's

acuity. Moreover, local prejudice may be aimed at the defendant

instead of the government, as, for example, where the locality

seeks retribution for an injury suffered by a popular victim.

Accordingly, we hold that the Sixth Amendment does not entitle a
 6

We note, however, that if Grisham is correct, the plans

would violate the Sixth Amendment not because they failed to

represent a fair cross-section of the community, but rather

because they failed to draw the jury from within the Sixth

Amendment "district" as defined by Congress. Thus, Grisham's

statistics regarding racial composition are irrelevant to this

issue. 

federal criminal defendant to a jury summoned from a fair

cross-section of the community immediately surrounding the place of

the crime, but merely to a jury drawn from a fair cross-section of

some previously defined geographical area within the boundaries of

the judicial district in which the offense occurred.

2. Congressional designation of divisions

 Grisham next contends that the creation of judicial divisions

in the Northern District signals Congress' intention that juries be

selected on the basis of those divisions.6 As we noted above, the

Sixth Amendment gives Congress the power to determine the area of

the vicinage district under the Sixth Amendment. Thus, Congress

could create a system whereby statutes refer to "districts" for

certain purposes, such as jurisdiction and venue, and, at the same

time, mark off distinct geographical areas for the purpose of

creating Sixth Amendment vicinage districts.

Nonetheless, we reject Grisham's contention that Congress'

creation of judicial divisions was an exercise of this Sixth

Amendment power. First, it is significant that Congress did not

express such an intention in the most obvious manner available to

it, namely, by using the term "district." Second, neither the

statute creating the statutory divisions of the Northern District

nor the Act expressly dictates a division-based vicinage
 7

It is noteworthy that Congress has in the past enacted

statutes creating judicial divisions that contained explicit

division-based vicinage requirements. See Kershen supra at 61-

65. 

requirement.7 The Act does not stipulate which political

subdivision within a district the federal courts should select,

committing that decision to the courts' discretion. 28 U.S.C.A. §

1861; 28 U.S.C.A. § 1863(b)(2) ( [A] jury selection plan shall

"specify whether the names of prospective jurors shall be selected

from the voter registrations lists or the lists of actual voters of

the political subdivisions within the district or division.")

(emphasis added). Third, Grisham has failed to point to any

legislative history which supports his contention that Congress

intended to require division-based jury selection. Thus, we

conclude that, in creating divisions within the Northern District,

Congress did not exercise its power to define the geographical

limits from which a federal jury may be drawn. See Clement v.

United States, 149 F. 305, 309-10 (8th Cir.1906) (ruling that

divisions are not districts under the Sixth Amendment), cert.

denied, 206 U.S. 562, 27 S.Ct. 795, 51 L.Ed. 1189 (1907).

Accordingly, the district court did not err in concluding

that, in this case, the relevant statistical community was the

Northern District rather than the Southern Division and, thus,

properly rejected Grisham's Sixth Amendment claim.

C. Equal Protection

 To establish an equal protection violation in the jury

selection context, a defendant must show "(1) that he or she is a

member of a group capable of being singled out for discriminatory
 8

Grisham also contends that the clerk's failure to pursue

unreturned and undeliverable jury questionnaires has the effect

of excluding African-Americans residing outside of the Southern

treatment, (2) that members of this group were substantially

underrepresented on the venire, and (3) that the venire was

selected under a practice providing an opportunity for

discrimination." Cunningham, 928 F.2d at 1013. Although the prima

facie case for an equal protection claim resembles the elements of

a fair cross-section claim, the purpose of an equal protection

claim is to determine whether the disparity in the jury venire is

the result of a discriminatory purpose. Duren, 439 U.S. at 368 n.

26, 99 S.Ct. at 670 n. 26. Thus, whereas the inquiry in a fair

cross-section claim focuses on the representativeness of the jury

venire, the focus of an equal protection claim is whether members

of a discrete group have been intentionally denied the opportunity

to serve on a jury. If the defendant makes his prima facie case,

the burden shifts to the government to dispel the inference of

intentional discrimination. Castaneda v. Partida, 430 U.S. 482,

497-98, 97 S.Ct. 1272, 1281-82, 51 L.Ed.2d 498 (1977); see also

Gibson, 705 F.2d at 1546. If the government provides a legitimate

explanation, the ultimate burden of proving discriminatory intent

rests on the defendant challenging the jury selection process.

Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 1721, 90

L.Ed.2d 69 (1986).

 Grisham contends that the district-based selection process

excludes African-Americans residing in the Southern Division from

jury service as evidenced by the disparity between the QJWs and the

population of the Southern Division.8 As Grisham relies solely on
Division from jury service. Grisham, however, has not produced

any evidence to indicate that African-Americans are

disproportionately affected by the clerk's failure to follow up

on questionnaires. 

 9The district court stated:

[Intent to discriminate] cannot be inferred merely from

defendants showing a disparity between the percentage

of black jurors on the qualified wheel and the

percentage of black persons eligible for jury service

in a hypothetical community. There almost always will

be a disparity between the percentage of black jurors

on the wheel and the percentage of jury-eligible black

persons in the population of any "community" which is

not the community from which the wheel was drawn. That

is not, and cannot be, the test of an equal protection

question. Since the defendants are not entitled to

trial in a self-defined community, which includes only

the division in which the crime occurred, they are not

entitled to compare their venire with that community

for equal protection purposes.

Grisham, 841 F.Supp. at 1146. 

 10The disparity between the African-American population of

the Southern Division eligible for jury service and the AfricanAmerican composition of the QJW for Grisham's grand and petit

juries is approximately 13% and 15.5%, respectively. 

the evidence of disparity, the narrow issue before us is whether

this statistical evidence was sufficient by itself to permit an

inference of discriminatory purpose behind the plans.

The district court resolved this issue on the ground that

cross-community statistical comparisons are irrelevant for equal

protection analysis.9 However, we need not decide whether a

cross-community statistical disparity by itself may ever serve as

sufficient evidence to infer discrimination, for the statistical

disparity presented in this case is not sufficient to carry

Grisham's ultimate burden.10 The Northern District has adopted the

Southern Division as the preferred venue for criminal trials for

purposes of administrative convenience and providing criminal
 11We recognize that Judge Clemon follows a modified version

of the Northern District's jury selection plan in civil cases

arising in two divisions. Hardin v. City of Gadsden, 837 F.Supp.

1113 (N.D.Ala.1993). Judge Clemon adopted the modifications on

the basis of his conclusion that the jury selection plans at

issue in this case violated the Act, a question which is not

presented by this case. Moreover, the district court in Hardin

relied on findings concerning the disproportionate poverty of

African-Americans in Northern Alabama and their lack of access to

transportation. These facts have not been presented to us in

this appeal. Thus, our conclusion today should not be viewed as

resolving, one way or the other, the issues that were before

Judge Clemon in Hardin. 

defendants with a speedy trial. If the Northern District selected

juries only from the area used to determine the venue of trial, the

consequence would be that residents of the Northern District

outside the Southern Division would be precluded from serving on

federal criminal juries. Thus, district-based selection in this

case ensures that all residents of the Northern District have a

realistic chance of serving as jurors. In light of this

governmental interest, the Northern District's decision to adopt

district-based jury selection is eminently reasonable. The

resulting 13% and 15.5% absolute "cross-community" disparities are

simply not sufficient to support an inference that the Northern

District has acted for an illicit purpose. Accordingly, we

conclude that the district court properly rejected Grisham's equal

protection challenge to the plans.

III. CONCLUSION

For the reasons stated above, we AFFIRM.11