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. e du/thir dc ir c uit_2001/214Filed September 21, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-2203

UNITED STATES OF AMERICA

v.

RUDOLPH WEAVER, Appellant

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 99-cr-00002E) District Judge: Honorable Sean J. McLaughlin

Argued March 15, 2001

Before: RENDELL, AMBRO, and BRIGHT,* Circuit Judges

(Filed: September 21, 2001)

Thomas W. Patton, Esq. [ARGUED]

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre Erie, PA 16501 Counsel for Appellant Rudolph Weaver

___________________________________________________ ______________ * The Honorable Myron H. Bright, Senior Judge of th e United States Court of Appeals for the Eighth Circuit, sitting by designation.Bonnie R. Schlueter, Esq. [ARGUED]

Office of United States Attorney

633 United States Post Office

& Courthouse Pittsburgh, PA 15219 Counsel for Appellee

United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

Rudolph Weaver appeals his armed robbery conviction on the grounds that the jury pool in the Erie Division of the Western District of Pennsylvania, from which the ju ry that convicted him was chosen, did not reflect a fair cr oss section of the community as required by the Sixth Amendment and the Jury Service and Selection Act. W eaver also challenges other rulings of the District Court based on the Jencks Act and procedures he claims are require d in

order to sentence him under the "Three Strikes" sta tute, 18 U.S.C. S 3559 (c)(1). The District Court found no v iolation of Weaver's constitutional or statutory rights. We wil l affirm.

I. FACTS AND PROCEEDINGS

On December 21, 1998, Weaver entered the First National Bank in Erie, Pennsylvania, waving a gun a nd demanding the cash in the tellers' drawers. He thre atened to shoot the tellers if they did not comply with hi s orders. The tellers emptied the contents of their drawers i nto shopping bags, and Weaver left with approximately $20,000. Later that day, bank surveillance photogra phs taken during the robbery were shown on news program s, and a former classmate of Weaver's, Mary Giulianell i, communicated with the F.B.I. immediately after the evening news to identify Weaver as the man shown in the pho tos. App. at 767-68. The following day, Agent Van Slyke showed a photo array to Rosalie Landon, one of the three t ellers on duty that day. Coincidentally, Landon had helped We aver open an account at the bank several months before t he

2robbery. She identified Weaver as the robber. App. at 502-

03.

In January 1999, a grand jury returned a two-count indictment charging Weaver with bank robbery in vio lation of 18 U.S.C. S 2113(a) and use of a dangerous weapo n in connection with a bank robbery in violation of 18 U .S.C. 2113(d). Weaver was arrested on March 25, 1999. On February 10, 2000, as required by 18 U.S.C. S 851(a ), the government filed notice of its intent to seek a man datory life sentence pursuant to 18 U.S.C. S 3559(c). The case proceeded to trial on March 21, 2000. The evidence was overwhelming: Weaver's girlfriend, Ethel Mae Wheat,

testified that Weaver told her that he had robbed t he bank and showed her a briefcase containing several thous and dollars. App. at 720. In addition, Wheat's son test ified that he owned a gun similar to the one in the photograph s, which had been missing since the time of the bank r obbery. App. at 634-35. They also identified certain clothi ng belonging to Weaver, which was the clothing identif ied by witnesses as having been worn by the robber. App. a t 639- 41, 732-34. In addition, three of Weaver's acquaint ances testified that they believed the man in the surveil lance photographs to be Weaver. On March 24, 2000, a jury found Weaver guilty on both counts. In an amended judgment of sentence entered on July 24, 2000, the District Court sentenced Weaver to life in prison and ordere d him to pay restitution in the amount of $31,051.30.

The District Court had jurisdiction over Weaver's c riminal prosecution pursuant to 18 U.S.C. S 3231. We have appellate jurisdiction pursuant to 28 U.S.C.S 1291 and

18 U.S.C. S 3742. We review the District Court's fi ndings of fact for clear error, and its legal conclusions de novo. United States v. Scott, 223 F.3d 208, 210 (3d Cir. 2000). Whether a defendant has been denied his or her right to a j ury selected from a fair cross section of the community is a mixed question of law and fact, and is reviewed de novo. United States v. Allen, 160 F.3d 1096, 1101 (6th Ci r. 1998); United States v. Miller, 771 F.2d 1219, 1227 (9th C ir. 1985); see also United States v. Grisham, 63 F.3d 1074, 10 77 (11th Cir. 1995) (holding that constitutional chall enges to jury selection process are reviewed de novo).

3II. DISCUSSION

A. Challenge to Fair Representation in the Jury Poo l

Weaver challenges his conviction on the grounds tha t he was denied his right to a jury drawn from a fair cr oss section of the community as required by the Sixth Amendment's fair cross section provision1 and the Jury Selection and Service Act of 1968, which codifies t he Sixth Amendment right. He argues that the pool from which his jury was selected underrepresented African-American s and Hispanics due to its exclusive reliance on voter re gistration

lists.

"[T]he American concept of the jury trial contempla tes a jury drawn from a fair cross section of the communi ty. . . . [I]t is part of the established tradition in the us e of juries as instruments of public justice that the jury be a bo dy truly representative of the community." Taylor v. Louisia na, 419 U.S. 522, 527 (1975) (internal quotation marks omit ted). This requirement of a fair cross section is not wit hout substantial limits -- it does not guarantee that ju ries be "of any particular composition." Id. at 538. All that i s required is that "the jury wheels, pools of names, panels, o r venires from which juries are drawn must not systematically exclude distinctive groups in the community and the reby fail to be reasonably representative thereof." Id. (emp hasis added). The objectives of the fair cross section re quirement include avoiding "the possibility that the composit ion of the juries would be arbitrarily skewed in such a way as to deny

criminal defendants the benefit of the common-sense judgment of the community" and avoiding the "appear ance of unfairness" that would result from excluding"lar ge groups of individuals, not on the basis of their ab ility to serve as jurors, but on the basis of some immutable characteristic such as race, gender or ethnic backg round." Lockhart v. McCree, 476 U.S. 162, 175 (1986).

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1. The Sixth Amendment provides: "In all criminal p rosecutions, the accused shall enjoy the right to a . . . . trial[ ] by an impartial jury

of the

State and district wherein the crime shall have bee n committed . . . ."

U.S. Const. Amend. VI.

4The Jury Selection and Service Act ("The Act") prov ides as

follows:

[A]ll litigants in Federal courts entitled t o trial by jury shall have the right to grand and petit juri es selected

at random from a fair cross section of the c ommunity

in the district or division wherein the cour t convenes. It is further the policy of the United State s that all citizens shall have the opportunity to be co nsidered for service on grand and petit juries in the dis trict courts of the United States, and shall have an obli gation to serve as jurors when summoned for that purpo se.

28 U.S.C. S 1861 (West 2001). The Act "seeks to ens ure that potential grand and petit jurors are selected at random from a representative cross section of the communit y and that all qualified citizens have the opportunity to be

considered for service." United States v. Calabrese , 942 F.2d 218, 220 (3d Cir. 1991) (internal quotation ma rks omitted). Claims under the Act are analyzed using t he same

standard as a Sixth Amendment fair cross section cl aim. See United States v. Test, 550 F.2d 577, 584-85 (10 th Cir. 1976) (en banc) (Act's fair cross section standard is "functional equivalent of the constitutional`reason ably representative' standard").

When enacted, the Act required "[e]ach United State s district court [to] devise and place into operation a written plan for random selection of . . . petit jurors tha t[would] be designed to achieve the [above-mentioned] objective s of sections 1861 and 1862." 28 U.S.C. S 1863(a) (West 2001). Congress determined that the principal source of na mes for

the random selection should be either "the voter registration lists or the lists of actual voters." Id. at S 1863(b)(2). The Act also provided: "The plan shal l prescribe some other source or sources of names in addition to voter lists where necessary to foster t he policy and protect the rights secured by sections 1861 and 1862

. . . ." Id.

In order to establish a prima facie violation of th e fair cross section requirement of the Sixth Amendment an d the Act, the defendant must demonstrate: (1) the group alleged to be excluded is a "distinctive" group in the comm unity; (2)

5the representation of this group in jury venires is not "fair

and reasonable" in relation to the number of such p ersons in the community; and (3) the underrepresentation i s caused by the "systematic exclusion of the group in the jury selection process." Duren v. Missouri, 439 U.S. 357 , 364 (1979). A defendant need not show discriminatory in tent. See id. at 368 n. 26 ("In contrast [to an Equal Pro tection claim], in Sixth Amendment fair cross-section cases

, systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair community cross section.") And, "once a defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn a fair cross section of the community, it is the Stat e that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatib le with a significant state interest." Id. at 368.

The plan approved by the Western District of Pennsylvania at the time of the jury selection in W eaver's case, and currently in effect, employs voter regist ration lists as the exclusive source from which it summons poten tial jurors for service. App. at 77. Juror names are dra wn at random from the voter registration lists of the sev en counties in the Erie Division and placed into a mas ter jury wheel ("master wheel").2Id. At periodic intervals, the Clerk publicly draws names at random from the master whee l. All those selected are sent jury questionnaires. Id. A ll those who return questionnaires and are not disqualified, exempt or excused, are placed in a separate wheel called t he "qualified wheel." App. at 87.

To prove his claim that the venire underrepresented African-Americans and Hispanics in violation of his constitutional and statutory rights, Weaver introdu ced the testimony of Dr. Andrew A. Beveridge, who was recog nized as an expert in demography. Beveridge compared the number of African-Americans and Hispanics in the ad ult population of seven counties comprising the Erie Di vision to the number of African-Americans and Hispanics represented in the master wheels used in the Erie D ivision

since 1995.

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2. The master wheel is emptied and refilled every t wo years. App. at 83.

6The District Court found the statistical evidence o ffered

for the years prior to 1999 to be too "weak" to "es tablish unfair and unreasonable representation" because the findings were based on random samples that the Dist rict Court found to be inadequate (500 persons for 1995 and 1997). App. at 16. The District Court based this determination in part on Beveridge's concession tha t a sample size of only 500 "weakens the power of the estimate," and also on his admission that he could not conclude within a reasonable degree of mathematical certainty that there was underrepresentation during either of those years without looking at the entire patter n.3 App. at 251-52. In examining the 1999 evidence, the Dist rict Court noted, as testified to by Beveridge and argue d by Weaver, that in contrast to 1995 and 1997, Beveridg e was able to obtain "a complete statistical breakdown" o f the 1999 "master wheel." App. at 15, 99, Appellant Br. at 29.

Beveridge determined that while census figures indi cate that 3.07% of the voting population in Erie is Afri canAmerican, African-Americans comprised only 1.84% of the 1999 master wheel. He also stated that Hispanics comprised .97% of the population, but only .26% of the wheel.4 The absolute disparity, which is calculated by subtracting the percentage of the group on the whee l from the percentage of the group in the relevant populat ion, Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992 ) (en banc), is thus 1.23% for African-Americans, and .71 % for Hispanics. Using a comparative disparity analysis, 5 which is

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3. Weaver does not challenge this finding on appeal , choosing instead to focus on the evidence Beveridge presented regarding all returned questionnaires from 1999. 4. This chart represents the statistics before us:

1999 Wheel Percentage in Percentage in Abs olute Comparative Population Wheel Dis parity Disparity

African- 3.07 1.84 1.2 3 40.01

Americans

Hispanics .97 .26 .7 1 72.98

5. An example of comparative disparity is as follow s: in a master wheel of 1000, where a group comprises 50% of the populat ion, yet only makes

7calculated by dividing the absolute disparity by th e

percentage of the population that a particular grou p comprises, id. at 1231, the disparity for African-A mericans was 40.01%, while it was 72.98% for Hispanics. This figure

"measures the diminished likelihood that members of an underrepresented group, when compared to the popula tion as a whole, will be called for jury service." Id. a t 1231-32.

Beveridge did not perform an additional calculation normally used in fair cross section claims. Known a s "standard deviation" analysis, this calculation is only utilized where the expert has performed an analysis based on a random sample from the voter wheel.6 Here, Be veridge claimed to be analyzing the entire wheel instead of taking a sample.7 Therefore, he stated that there was no s tandard deviation calculation. However, Beveridge did perfo rm a "binomial distribution analysis," which measures th e

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up 25% of the wheel, the comparative disparity is 5 0%, because half of that group is being excluded. That is, there should be 500 of that group on the wheel, but there are only 250. Hence, there is 50% underrepresentation within the group itself.

6. Beveridge elucidated the concept by offering the following example: in a survey of 800 persons, where the results indicate that 46% of people would vote for Candidate A, and 46% for Candidate B , with a margin of error of 3%, the margin of error establishes the de gree of confidence that the figures presented represent the entire voting p opulation, even though the survey is based on a sample of only 800 persons . Beveridge stated that standard deviation is like a margin of error, because it establishes the probability that a sample taken from the jury w heel accurately reflects the composition of the entire wheel. App. at 218.

7. As we will address in our discussion of Weaver's statistical presentation, despite his testimony, Beveridge did not actually analyze

the entire master wheel. He testified that he was a ble to determine the race of nearly every juror on the master wheel base d on those jurors indicating their race on the questionnaires sent to them. The master wheel consists of jurors chosen at random from the voter registration rolls, before any questionnaires have been mailed y et. But Beveridge actually examined, and testified based on, the retu rned questionnaires. For the 1999 wheel, 5,877 questionnaires were maile d. App. at 125. Yet only 4,753 of those were completed and returned. Id . Beveridge did not attempt to account for those not returned, yet cons istently testified that he had examined the entire composition of the maste r wheel.

8likelihood that the underrepresentation of AfricanAmericans and Hispanics would occur by random chanc e. Beveridge stated that the likelihood for African-Am ericans was one in 6,603,384 and for Hispanics, one in 130,337,015.

The District Court first stated that it believed th at under our existing precedent, Weaver's claim would fail o n the first prong of the prima facie case because African Americans and Hispanics who do not vote are not cognizable groups. The Court then found that, even assuming that the first prong had been satisfied, W eaver's

claim still failed on the basis of the second and t hird prongs. It held that Weaver's statistical presentat ion was too limited, and that using voter registration list s to generate the venire did not amount to systematic ex clusion. We will address each of the three prongs of the pri ma facie case identified in Duren, all of which Weaver must satisfy in

order to make out a fair cross section claim.

1. First Prong -- Cognizable group

The District Court here framed the issue in the sam e way we did in United States v. Lewis, 472 F.2d 252, 255 (3d Cir. 1973), decided before the Supreme Court's opinion i n Duren. Lewis involved a challenge to the venire sel ection process based on its alleged underrepresentation of AfricanAmericans. Without the guidance of Duren regarding the prima facie claim, it appears we missed the mark as to what a plaintiff must show in order to demonstrate that a cognizable group was underrepresented. In Lewis , w e held that to successfully make out a fair cross section claim,

"the defendant must establish that Blacks . . . . c hoosing not to register to vote were a cognizable group whi ch were systematically excluded." Id. at 256.

We agree with Weaver that Lewis has been overruled by Duren at least insofar as its view of the first pro ng is concerned. While it is true that persons who do not vote are not a cognizable group, e.g., United States v. Affl erbach, 754 F.2d 866, 869 (10th Cir. 1985) ("Persons who ch oose not to register to vote do not comprise . . . a cog nizable group."), this is not the relevant inquiry. Rather, when a specific population such as African-Americans or Hi spanics

9is claimed to be underrepresented by the voter roll s, the

relevant inquiry is simply whether African-American s and Hispanics are cognizable groups.

This is made clear by Duren, in which the defendant challenged the underrepresentation of women, where Missouri had a procedure that gave women the option of exempting themselves from jury service. 439 U.S. at 360. The Supreme Court noted the proper approach to the first

prong:

With respect to the first part of the prima facie test, Taylor v. Louisiana, without a doubt, establ ished that women are sufficiently numerous and distinct from men so that if they are systematically elimi nated from jury panels, the Sixth Amendment's fair cros s-section requirement cannot be satisfied.

Id. at 364. Thus, we now evaluate the first prong o f the Duren fair cross section test by making the followi ng inquiry: Is the allegedly underrepresented group su fficiently numerous and distinct from others in the population that if members of the group are systematically eliminat ed, the defendant's right to a jury composed of a fair cros s section of the community would be violated?8

Applying this analysis to the instant case, Weaver' s claim satisfies the first prong of the Duren test: Africa n-Americans and Hispanics are "distinctive" groups for the purp oses of a fair cross-section analysis. Castaneda v. Partida , 430 U.S. 482, 495 (1977) ("[I]t is no longer open to dispute that Mexican-Americans are a clearly identifiable class. "); Ramseur, 983 F.2d at 1230 ("African-Americans are unquestionably a constitutionally cognizable group. "); see also United States v. Royal, 174 F.3d 1, 6 (1st Cir . 1999)

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8. Furthermore, if we were to adhere to Lewis 's th eory of the relevant cognizable group, then Duren's second prong, which was not discussed in Lewis, could not be meaningfully applied. As we will discuss, the second prong requires a comparison between the repr esentation of the group in jury venires and the number of such person s in the community. 439 U.S. at 364. Were we to define the relevant gro up as all AfricanAmericans not registered to vote, as the District C ourt did, the representation of the group in the jury venire -- a nd, thus, the numerator in the calculation -- would always be zer o.

10("There is no dispute that . . . Blacks are unquest ionably a

"distinctive" group for the purposes of a fair cros s-section analysis."); United States v. Jackman, 46 F.3d 1240 , 1246 (2d Cir. 1995) ("There is little question that both Blacks and Hispanics are "distinctive" groups in the community for purposes of this test."). Thus, we disagree with th e District Court's analysis of the first prong of the Duren p rima facie

case.

2. Second Prong -- "Fair and reasonable" representation

The second prong of Duren asks whether the representation of the group in the jury venires is fair and reasonable in relation to the number of such person s in the community. 439 U.S. at 364. This is, at least in pa rt, a mathematical exercise, and must be supported by statistical evidence. Id. "Initially, the defendant must demonstrate the percentage of the community made up of the group alleged to be underrepresented, for this is the conceptual benchmark for the Sixth Amendment fair-c rosssection requirement." Id. Here, Census figures indi cate that 3.07% of the voting population in the seven countie s comprising the Erie Division is African-American an d.97% is Hispanic. This data has not been challenged; hen ce, we will proceed on the assumption that these figures a re

correct.

In Ramseur, we considered a challenge to the jury selection process in Essex County, New Jersey, whic h used both voter registration and Department of Motor Veh icle

lists as the source of its master wheel. 983 F.2d a t 1230. Ramseur argued that African-Americans were being excluded in violation of both the Equal Protection Clause of

the Fourteenth Amendment9 and the fair cross sectio n

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9. No equal protection challenge is made here. It r equires a different showing:

The first step is to establish that the grou p [alleged to be underrepresented] is one that is a recogniza ble, distinct class, singled out for different treatment under th e laws, as written or

as applied. Next, the degree of underrepresenta tion must be proved, by comparing the proportion of the group in the total population to

the

11provision of the Sixth Amendment. We found that whi le the

first prong of each test was met, Ramseur's two yea r-long study establishing 14.1% absolute disparity and 40% comparative disparity presented "insufficient" figu res to meet either the Equal Protection or Sixth Amendment standards set forth in Castaneda and Duren, respect ively. 983 F.2d at 1233-35. We denied both claims, id. at 1235, focusing the majority of our analysis on Ramseur's Equal Protection challenge, id. at 1229-34.

In our brief discussion of Ramseur's Sixth Amendmen t claim, we appear to have combined the second and th e third prongs of Duren, and stated, generally, that our inquiry involved an examination of "the nature of t he process by which jury lists are composed, the lengt h of time of underrepresentation, and the strength of the evi dence that purports to establish an `unfair and unreasona ble' representation under Duren." Id. at 1235. We determ ined that, looking at these factors, Ramseur had not mad e out a prima facie case under the Sixth Amendment. Id. Ramseur presented two years of inconclusive statist ical data and the county process was shown to be faciall y neutral and part of an ongoing process in New Jerse y to increase the representative nature of jury lists. I d. Though we considered these two prongs in tandem in Ramseur

, here we will evaluate them separately. Following Du ren's approach, the strength of the evidence should be considered under the second prong, while the nature of the

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proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes cal led the"rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a d elineated class. Finally, as noted above, a selection procedure that i s susceptible of abuse

or is not racially neutral supports the presump tion of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group , he has made out a prima facie case of discriminatory purpose, and the burden then

shifts to the State to rebut that case.

Castaneda, 430 U.S. at 494-95 (internal quotation m arks and citations omitted).

12process and the length of time of underrepresentati on

should be considered under the third.10

Looking at the strength of the evidence supporting the second prong, we will examine the percentages of th e two populations represented on the master wheel. The government does not challenge Weaver's data indicat ing that African-Americans and Hispanics comprised 1.84 % and .97%, respectively, of the 1999 master wheel. H owever, the parties do dispute which method of statistical analysis should be used to determine the significance of the disparity between the percentages on the master whe el and the percentages in the voting population.

Weaver urges that we should analyze the figures usi ng comparative disparity, so that the figures of 40.01 % for African-Americans and 72.98% for Hispanics would fo rm the basis for this prong. In contrast, the governme nt argues that we should do as the District Court did, and de termine whether this second prong has been fulfilled by exa mining whether the absolute disparity figures of 1.23% for AfricanAmericans and .71% for Hispanics, establish the req uisite underrepresentation. Our precedent does not dictate that one method of statistical analysis should be used r ather than another,11 and, in fact, both methods have bee n

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10. In Duren, the Supreme Court decided the second prong based solely on statistical evidence: "The second prong of the p rima facie case was established by petitioner's statistical presentatio n." 439 U.S. at 364. In its analysis of the third prong, the Court discusse d the length of time of the study and the nature of the process as they rel ated to whether the underrepresentation was inherent in the system itse lf: "[Duren's] undisputed demonstration that a large discrepancy o ccurred not just occasionally but in every weekly venire for a perio d of nearly a year manifestly indicates that the cause of the underrep resentation was systematic . . . ," id. at 366, and "Petitioner dem onstrated that the underrepresentation of women in the final pool of p rospective jurors was due to the operation of Missouri's exemption criter ia . . . ," id. at 367.

11. In Ramseur, we did not specify which type of st atistical analysis is preferable in these type of cases: "Thus, both the absolute and comparative disparity analyses present results at t he margin of the range found acceptable by the courts." 983 F.2d at 1232. Because we did note the results of both calculations, Ramseur supports our determination that we should consider both absolute and comparati ve disparity, instead of just choosing one over the other.

13criticized. See, e.g., Thomas v. Borg, 159 F.3d 114 7, 1150

(9th Cir. 1998) (stating that "the comparative disp arity test is strongly disfavored in the Ninth Circuit on the ground that it exaggerates the effect of any deviation."); United States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998) (pointing out that with absolute disparity, total e xclusion of group comprising small percentage of population wou ld result in figure appearing insignificant).

The comparative disparity method has drawn a great deal of criticism in situations like the one before us, that is, where a small population is subjected to scrutiny. See Smith v. Yeager, 465 F.2d 272, 279 n.18 (3d Cir. 19 72) ("[T]he comparative [disparity] approach reaches ab surd results . . . where the [African-American] populati on at the time was 4.4% of the total, and the [African-Americ an] jury participation ranged as low as 2% of the jury list) . Courts considering this analysis have said that while "the se numbers may be more indicative of a Sixth Amendment violation, they . . . are distorted by the small po pulation of the different minority groups." Shinault, 147 F.3d at 1273. It has been argued that "a small variation in the f igures used to calculate comparative disparity can produce a significant difference in the result, and . . . . t here is reason to doubt the accuracy of the figures . . . ." Unite d States v. Pion, 25 F.3d 18, 23 (1st Cir. 1994); see also Unit ed States v. Sanchez-Lopez, 879 F.2d 541, 548 (9th Cir. 1989) ("A comparative analysis is disfavored because it exagg erates the effect of any deviation."); United States v. Ha fen, 726 F.2d 21, 24 (1st Cir. 1984) ("[T]he comparative dis parity calculation might be a useful supplement to the abs olute disparity calculation, . . . [but] the smaller the group is, the more the comparative disparity figure distorts the proportional representation."); United States v. Wh itley, 491 F.2d 1248, 1249 (8th Cir. 1974) (stating that compa rative disparity calculation "is ordinarily inappropriate" where a very small proportion of the population is involved and opining that it "distorts reality"). When comparati ve disparity has been used, it has been emphasized tha t the significance of the figure is directly proportional to the size of the group relative to the general population, an d thus is most useful when dealing with a group that comprise s a large percentage of the population. See, e.g. , LaR oche v.

14Perrin, 718 F.2d 500, 502-03 (1st Cir. 1983) (findi ng that

prima facie violation established where comparative disparity was 68.22% and group comprised 68.4% of population), overruled on other grounds by Barber v . Ponte, 772 F.2d 982, 996 (1st Cir. 1985) (en banc).

Although absolute disparity, which was the method employed in Duren, seems to be the preferred method of analysis in most cases, see, e.g., Shinault, 147 F. 3d at 1273 ("Absolute disparity . . . is the starting place fo r all other modes of comparison."), it also has its share of cr itics. Some courts have found that the absolute disparity calculation "understates the systematic representat ive deficiencies" in cases such as the one before us, w here, unlike in Duren, the groups at issue comprise small percentages of the general population. Id.; see als o id. (noting that "even the complete exclusion of the gr oups would result in absolute disparities of less than 6 %"); Rogers, 73 F.3d at 777 ("[I]n this case, even if Af ricanAmericans [who comprised 1.87% of population] were excluded entirely from the lists of potential juror s, the maximum disparity, under an absolute calculation, w ould be 1.87%."). Because we think that figures from bot h methods inform the degree of underrepresentation, w e will

examine and consider the results of both in order t o obtain the most accurate picture possible.

Looking first at the comparative disparity figures, we find that they are quite high -- 40.01% and 72.98%-- but that because African-Americans and Hispanics comprise su ch a small percentage of the population, the results of this analysis are of questionable probative value.12 See United States v. Chanthadara, 230 F.3d 1237, 1257 (10th Ci r. 2000) (finding that where African-Americans account ed for

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12. When determining if "substantial underrepresent ation" had been established as required to make out a prima facie c laim under the Equal Protection clause, we stated in Ramseur that a 40% comparative disparity was only "borderline." 983 F.2d at 1232. Though an Equal Protection challenge differs from a fair cross sect ion claim, the reasoning of Ramseur suggests that, with respect to the compa rative disparity for African-Americans, 40.1% would not necessarily weig h in Weaver's favor, considering that the figure is comparable to Ramseu r's "borderline" figure of 40%.

157.9% of population, and Hispanics, 2.74%, comparati ve

disparities of 40.89% and 58.39%, respectively, did not establish prima facie violation); United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (holding that whe re Indians comprised 15.6% of population, 46% comparat ive disparity was insufficient underrepresentation to m ake out fair cross section claim).

The absolute disparity figures are much lower -- 1. 23% for African-Americans and .71% for Hispanics. These percentages are well below those that have previous ly been

found insufficient to establish unfair and unreason able representation.13 See Thomas , 159 F.3d at 1151 (fi nding that where African-Americans comprised 5.135% of population, and there were no African-Americans on jury panel, absolute disparity of approximately 5% was insufficient to make out fair cross section claim); Pion, 25 F.3d at 23 (relying on absolute disparity figure of 3.4% in finding that underrepresentation was "relatively sm all" for Hispanics representing 4.2% of the general populati on); United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982) (finding that where African-Americans compris ed 9.3% of population, Hispanics, 11.7% and Asians, 8. 3%, absolute disparities of 2.8%, 7.7%, and 4.7%, respe ctively, were insubstantial); United States v. Armstrong , 6 21 F.2d 951, 955-56 (9th Cir. 1980) (determining that absol ute disparity of 2.83% for African-Americans comprising 4.2% of population was not sufficient). Accordingly, the results of this analysis fail to support this element of Weave r's prima

facie case.

Moreover, there is a fundamental weakness in the fi gures relied upon by Beveridge in his statistical present ation regarding the percentages on the "master wheel" -- a flaw that went unaddressed by both the parties and the D istrict Court. As noted previously, despite his testimony, Beveridge did not actually analyze the entire 1999 master whe el. Instead, he examined and based his testimony on the returned questionnaires. For the 1999 wheel, 5,877

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13. Like with comparative disparity, Ramseur found a 14.1% absolute disparity calculation in the Equal Protection conte xt to be "borderline."

983 F.2d at 1232.

16questionnaires were mailed. App. at 125. Yet only 4 ,753 of

those were completed and returned. Id. Beveridge di d not attempt to account for those not returned, yet cons istently testified that he had examined the entire compositi on of the master wheel. We find that this discrepancy in Beve ridge's statistical presentation further undermines the str ength of the evidence. In order to support Weaver's allegati on of underrepresentation on the master wheel, Beveridge would have had to either analyze the races of all 5,877 j urors on the master wheel (as he claimed to have done), perf orm sampling of the master wheel14 and then calculate t he standard deviation,15 or, alternatively, account fo r the statistical impact of the unreturned questionnaires

. Weaver's statistical evidence is, therefore, far to o weak to support a finding of representation that is unfair and

unreasonable.

3. Third Prong -- Systematic Exclusion

While we need not reach the third prong, it merits our attention because the District Court placed some de gree of reliance on this aspect. The third prong of Duren r equires that the defendant show that the underrepresentatio n of the cognizable group is due to systematic exclusion in the jury selection process. 439 U.S. at 366. In Duren, the Supreme Court held that women were systematically excluded where the underrepresentation of women on jury

lists resulted from their self-exclusion under a st ate law exemption privilege. Id. at 367. The Court stated t hat "[t]he resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage w as quite obviously due to the system by which juries w ere selected." Id. In Ramseur, we found no Sixth Amendm ent

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14. Weaver did present studies based on samples of the 1995, 1997, and 1999 wheels, but he did not base his appeal on this evidence, choosing instead to argue that the evidence based on the ent ire 1999 wheel was much more persuasive. Thus, we will not address Bev eridge's studies based on samples from 1995, 1997 or 1999, restricti ng our focus to the statistical evidence based on all the returned ques tionnaires from 1999.

15. As noted previously, Beveridge stated that stan dard deviation was unnecessary because he claimed to have done a compl ete statistical analysis of the 1999 master wheel.

17violation where the jury selection process was neut ral on its

face and was being monitored, and modified, to try to enhance its representative character. 983 F.2d at 1 235.

Here, the government contends, and the District Cou rt agreed, that where substantial representation is tr aceable solely to the exclusive reliance on voter registrat ion lists, and the underrepresented group has freely excluded itself quite apart from the system itself, the third prong has not been fulfilled. The government emphasizes that Weav er has shown "no evidence of any interference with the opportunity . . . to vote." Appellant Br. at 27. In other words, there has been no showing of anything in the system that has discouraged or prevented a group fr om participating.

We must be careful to note that intentional discrimination need not to be shown to prove a Sixt h Amendment fair cross section claim. Duren, 439 U.S. at 368 n. 26. Under Duren, "systematic exclusion" can be shown by a large discrepancy repeated over time suc h that the system must be said to bring about the underrepresentation: "[Here, petitioner's] undisput ed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a perio d of nearly a year manifestly indicates that the cause o f the underrepresentation was systematic -- that is, inhe rent in the particular jury-selection process utilized." Id . at 366. Thus, while we need not determine the limits of"sys tematic exclusion" for our purposes, we note that if the us e of voter registration lists over time did have the effect of sizeably underrepresenting a particular class or group on th e jury venire, then under some circumstances, "this could
constitute a violation of a defendant's `fair cross -section' rights under the [S]ixth [A]mendment." Bryant, 686 F.2d at 1378 n.4; see also Barber, 772 F.2d at 989 ("A larg e discrepancy occurring over a sustained period of ti me where there is an opportunity for arbitrary selecti on is

sufficient to demonstrate that the exclusion of the underrepresentation is systematic -- that is, inher ent in the particular jury selection process utilized."). Howe ver, we see nothing in the record before us that is demonstrati ve of any such persistent "systematic exclusion" of Blacks an d Hispanics.

18Due to Weaver's failure to present sufficient evide nce to

satisfy the requirements of the prima facie case se t forth in Duren, we will affirm the District Court's denial o f Weaver's fair cross section challenge to Erie's jury selecti on process.

B. Remaining Issues

1. Failure to Grant a Mistrial Based on Non-Product ion of Bank Teller's Written Descriptions

Weaver also claims that the government violated the Jencks Act, 18 U.S.C. S 3500. The Jencks Act requir es that the government disclose prior recorded statements o f its witnesses that are "related" to the subject matter of their testimony. Id. at S 3500(b); United States v. Hill, 976 F.2d 132, 139 (3d Cir. 1992). Such disclosures must be m ade

after each witness testifies on direct examination. 976 F.2d

at 139.

At trial, several witnesses, including bank tellers , offered evidence as to Weaver's identity, and as we noted, one of the tellers, Ms. Landon, specifically recalled Weav er from his having opened an account at the bank five month s before the robbery. Weaver contends that the Jencks Act was violated because, after direct examination of t he various tellers, Weaver's counsel requested copies of written reports prepared by each of them describing the rob ber. The government was unable to produce any such repor ts. Therefore, Weaver urges that he was entitled to a m istrial.

We review the District Court's denial of defendant' s motion

for a mistrial for abuse of discretion. Id.

It was conceded that it is bank policy for tellers to write a description of a robber immediately following the robbery. Indeed, shortly after the robbery, each of the thre e tellers did so and there was some evidence that they left t hem at the scene or gave them to some unidentified law

enforcement officials who arrived on the scene. Non e of the tellers, however, could remember to whom they gave the descriptions and thus the District Court concluded that there was no evidence that the written descriptions were ever in the custody of federal law enforcement offi cials.16

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16. Although each teller testified on cross-examina tion that she wrote such a statement immediately after the robbery occu rred, none of the

19Because the Jencks Act only applies to evidence in the

possession of the United States, and not state auth orities, see 18 U.S.C. S 3500(b) ("in the possession of the United States"); United States v. Bermudez, 526 F.2d 89, 1 00 n.9 (2d Cir. 1975); United States v. Smith, 433 F.2d 12 66, 1269 (5th Cir. 1970); Beavers v. United States, 351 F.2d 507, 509 (9th Cir. 1965), we conclude there was no showi ng of

a Jencks Act violation.

2. Notice of Intent to Seek Life Imprisonment Under the Provisions of Title 18 U.S. Code 3559 (c )(1)

Pursuant to 18 U.S.C. S 3559(c)(1)(A)(i),"a person who is

convicted in a court of the United States of a seri ous violent felony shall be sentenced to life imprisonment if t he person has been convicted . . . on separate prior occasion s in a

court of the United States or of a State of 2 or mo re serious violent felonies." Id. This is routinely referred t o as the "Three Strikes" provision. Weaver contends that the government's February 10, 2000 notice of its intent to seek a sentence of life imprisonment under this statutor y provision was defective because it failed to proper ly inform him of the nature of the prior convictions relied u pon, and thus provided him inadequate notice. The sufficienc y of such notice is a question of law that we review de novo. United States v. King, 127 F.3d 483, 487 (6th Cir. 1997).

Notice of intent to seek life imprisonment under th e provisions of 18 U.S.C. 3559(c)(1) requires notice under 21 U.S.C. S 851, which states:

(a)(1) No person who stands convicted of an offense under this part shall be sentenced to increa sed punishment by reason of one or more prior co nvictions, unless before trial, or before entry of a pl ea of guilty,

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tellers could recall to whom she gave the written d escription. App. at 486-88, 525-26, 560-61. Teller Landon testified tha t she did not recall if she had given her written description form to law e nforcement personnel, stating that "[p]erhaps they took it, I don't remem ber who got the form." Agent Curtis and Officer Emrick both testified that they did not see any written statements by the tellers, App. at 535-36, 691, 698, and neither the Erie Police Department nor the bank had any wri tten descriptions of the robber by the tellers, App. at 567, 683, 868.

20the United States attorney files an informat ion with the

court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. . . . Clerical mistakes in the information may be amended a t any time prior to the pronouncement of sentence.

(c)(1) If the person denies any allegation o f the information of prior conviction, or claims t hat any conviction alleged is invalid, he shall file a written response to the information. . . . The failu re of the United States attorney to include in the inf ormation the complete criminal record of the person o r any facts

in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a )(1) of this

section.

21 U.S.C. S 851. The requirements set out inS 851 a re mandatory and a district court may not impose an

enhanced sentence unless the defendant has been not ified of the "strikes" in compliance with these provision s. United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1983) . The government gave notice to Weaver of its intent to r ely upon three prior convictions: a "July 3, 1975 conviction for involuntary manslaughter," a "November 21, 1977 conviction for armed robbery," and a "June 19, 1989 conviction for armed robbery." It later amended the notice in certain respects, as we will discuss below. Weav er contends that the government's notice was flawed in three

ways.

First, one of the previous convictions set forth in the notice sent to Weaver contained an error, in that i t indicated that his July 3, 1975 conviction was for "involuntary manslaughter," when it was actually fo r "voluntary manslaughter." Second, the original noti ce sent to Weaver indicated that one of the prior convictio ns that the government would rely upon was his November 21, 1977 conviction for armed robbery. In fact, there w as no crime in Pennsylvania entitled "armed robbery" in 1 977. Rather, on November 21, 1977, Weaver was found guil ty of two separate robberies that were consolidated for t rial and, with respect to one of the two robbery convictions, the jury

21also convicted Weaver of using a "prohibited offens ive

weapon."

Finally, the reference to Weaver's third conviction improperly referred to an armed robbery conviction on June 19, 1989. Weaver was originally convicted on J une 19, 1989, but the conviction was not for armed robbery. Instead, Weaver had been convicted of two separate charges of robbery and criminal conspiracy relating to the robbery of two banks on the same day, and both convictions were later vacated and re-entered on July 2, 1997.

We have not had occasion to specifically address th e sufficiency of notice under S 851. However, we are guided by rulings of our sister courts of appeals in asses sing the adequacy of a S 851 information. While continually emphasizing the need for strict compliance with S 851(a)(1)'s filing and service requirements, e.g. , Harris v. United States, 149 F.3d 1304, 1307 (11th Cir. 1998) ("[E]ven where a defendant receives actual notice t hat the government intends to rely on a previous conviction to enhance his sentence, the district court lacks juri sdiction to impose an enhanced sentence until the government files an information as required under S 851."), those co urts requiring strict compliance have drawn a distinctio n between the strict procedural requirements regardin g the giving of notice, such as service and filing, which are explicit in the statute, and the precise informatio n that must be included in an information, which the statu te does not specify. Courts have often found that the statu te permits more flexibility with respect to the latter . E.g., United States v. Hamilton, 208 F.3d 1165, 1168-69 ( 9th Cir. 2000) (finding that though the Ninth Circuit requir es strict compliance with "the procedural aspects of section 851(b), . . . an apparent typographical mistake in a sectio n 851(a) sentencing information that otherwise satisfies due process notice requirements does not render the information invalid."); United States v. Lawuary, 211 F.3d 371, 376 (7th Cir. 2000) ("The statute itself . . . does not spec ify the form the filing must take, and we have . . . been flexib le with regard to what the government must do in order to c omply with section 851.").

22Rather than focusing on exactly what information th e

government must provide in a S 851(a)(1) informatio n, courts have instead analyzed whether the purpose of S 851(a)(1) -- providing a defendant with sufficien t notice to comply with due process -- has been satisfied. Acco rdingly, "[o]ur inquiry must be whether the information whic h was filed provided [the defendant] reasonable notice of the government's intent to rely on a particular convict ion and a meaningful opportunity to be heard," Perez v. Unite d States, 249 F.3d 1261, 1266 (11th Cir. 2001), and we must b e careful not to "elevat[e] form over substance" in d oing so. King, 127 F.3d at 489. Hence, the question is wheth er any of the government's errors rendered the notice constitutionally lacking. United States v. Steen , 55 F.3d 1022, 1027 (5th Cir. 1995) ("[A] district court may enhance a defendant's sentence, as long as the government p rovides constitutionally sufficient notice of the previous convictions through an information filed prior to trial."). We note, also, that S 851(a)(1) specifically provides that"[c]leri cal mistakes in the information may be amended at any time prior to the pronouncement of sentence." We will address each of the

claimed errors.

(a) Voluntary Manslaughter

Weaver contends that the notice wrongly indicated h e had been previously convicted of involuntary mansla ughter. More than two weeks before sentencing, the governme nt filed an amended notice, correcting the error by li sting Weaver's July 3, 1975 conviction as being for volun tary manslaughter. The District Court determined that th is error was a clerical mistake that could be amended pursua nt to the plain language of the statute.

We agree with the District Court that the governmen t's error in listing Weaver's past crime as being for "involuntary manslaughter," when it was actually fo r "voluntary manslaughter," was a clerical mistake an d therefore capable of being corrected by amendment u nder S 851(a)(1). See King, 127 F.3d at 489 (determining that incorrect date of prior conviction included in info rmation is clerical mistake as referenced in S 851(a)(1)). Alt hough Section 851 does not define "clerical error," we co nclude that the weight of authority discussing clerical er rors in

23other contexts indicates that the government's erro r

qualifies as such. See Fed. R. Civ. P. 60(a) ("Cler ical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omissi on may be corrected . . . ."); Fed. R. Crim. P. 36 ("Cleri cal mistakes in judgments, orders or other parts of the record a nd errors in the record arising from oversight or omission m ay be corrected . . . .") (emphasis added); see also Amer ican Trucking Ass'ns v. Frisco Transp. Co., 358 U.S. 133 , 145 (1958) ("It is axiomatic that courts have the power and the duty to correct judgments which contain clerical er rors or judgments which have issued due to inadvertence or mistake."); Jones v. Anderson-Tully Co., 722 F.2d 2 11, 212 (5th Cir. 1984) (holding that clerical errors "must be in the

nature of recitation" and "not errors of substantiv e judgment"). Because the government's amended information complied with S 851(a)(1)'s requirement s for the amendment of clerical errors, we affirm the Distric t Court's holding that the government listing Weaver's offens e as "involuntary manslaughter" instead of "voluntary manslaughter" did not render the S 851 notice inade quate.

(b) November 21, 1977 Conviction for Armed Robbery

With regard to the listing of Weaver's November 21, 1977 conviction as being for armed robbery, the District Court correctly noted that Pennsylvania did not have an o ffense titled "armed robbery" in 1977. Weaver was actually convicted of two counts of robbery, one of which in volved a "prohibited offensive weapon."

First, Weaver argues that because the government's original notice stated that it was relying on a con viction on November 21, 1977 (singular), instead of on two con victions (plural), the notice did not comply with S 851(a)(1 ). However, the government did in fact correct this er ror in the amended notice, changing a single conviction fo r armed robbery on November 21, 1977 to a "November 21, 197 7 conviction for robbery" and a "November 21, 1977 conviction for armed robbery." App. at 948. We agre e with

the District Court that this mistake can be classif ied as clerical, and due to the fact that the amended noti ce accurately reflected that the government was relyin g on two

24robbery convictions, rather than one, Weaver's argu ment is

unpersuasive.

Weaver's second contention is that he was prejudice d by

the incorrect notice17 because he could not identif y upon which of the two 1977 robbery convictions the gover nment was relying. He bases this argument on the fact tha t under S 3559(c)(3), a robbery conviction can not constitu te one of his "strikes" for sentencing purposes if a defendan t "establishes by clear and convincing evidence that (i) no firearm or other dangerous weapon was used in the o ffense and no threat of use of a firearm or other dangerou s weapon was involved in the offense; and (ii) the of fense did not result in death or serious bodily injury . . . to any person." He asserts that if the government had give n him proper notice, he could have attempted to prove tha t an offensive weapon was not used in one of the robberi es.

We are not swayed by Weaver's argument. We have already stated that the amended notice clarified th at the government was relying upon both convictions entere d on November 21, 1977. And though the amended notice st ill listed "armed robbery," instead of robbery and use of prohibited weapon, as a relied-upon conviction, giv en that the government listed the correct date on the amend ed notice and attached copies of his certified convict ions, we cannot see how Weaver's supposed confusion renders the

notice insufficient. Weaver was alerted to the conv ictions

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17. We agree with Weaver that a S 851(a) violation is not subject to harmless error analysis. See United States v. Olson , 716 F.2d 850, 852 (11th Cir. 1983) (holding that if government fails to provide notice, it cannot seek enhancement; there is no room to argue that error was harmless). But that is not the aim of our prejudice inquiry. Rather, as discussed earlier, we are asking whether Weaver was prejudiced in order to determine whether he was given adequate notice, as required by due process, of the previous convictions upon which the government would rely. See Steen, 55 F.3d at 1027 (emphasis added) ( "[A] district court may enhance a defendant's sentence, as long as the government provides constitutionally sufficient notice of the previous convictions through an information filed prior to trial."); United States v. Belanger, 970 F.2d 416, 419 (7th Cir. 1992) ("Section 851 does not specify the particular form which notice of enhancement must take and the gover nment's filings provided Belanger reasonable notice and an opportun ity to be heard.").

25the government would rely on as strikes, and he had the

ability to challenge the use of both robbery convic tions. He could have argued that a weapon was not used in one of his robberies, thereby attempting to avail himself of S 3559(c)(3)'s exception. He did not do so, and we do not

believe that technical errors such as the ones here give him the opportunity to revisit the issue on remand.

In addition, prior to his trial, Weaver filed two i n limine motions to exclude his prior convictions for bank r obbery, armed robbery and manslaughter. Hence, the pretrial proceedings clearly indicate that he was well aware of the prior convictions that the government was relying u pon, further weakening his claim that he lacked sufficie nt information to put him on notice. See United States v. Mack, 229 F.3d 226, 231-32 (3d Cir. 2000) (consider ing actual notice as indicative of constitutionally ade quate notice in context of different statute).

Some element of confusion or lack of specificity ha s not rendered notices deficient in previous cases. E.g., United States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994) (upholding information with no prior case num ber, date or specific place of conviction); United State s v. Campbell, 980 F.2d 245, 251 (4th Cir. 1992) (uphold ing enhancement despite error in statutory section of p revious conviction). Thus, we hold that the government's information regarding Weaver's November 21, 1977 conviction was sufficient to "signal[ ] the governm ent's intention to rely upon a particular prior convictio n." Gonzalez-Lerma, 14 F.3d at 1486.

(c) 1989 Armed Robbery Conviction

Finally, Weaver contends that because his convictio ns for armed robbery and criminal conspiracy on June 19, 1 989 were later vacated, the government listed nullified convictions. However, the convictions were vacated July 2, 1997 and were re-entered, after a guilty plea, unde r the same criminal docket number on July 2, 1997. Hence, the only error is listing the wrong date of conviction. We classify this as nothing more than a clerical mista ke that, like the other errors we have addressed, was correc ted in the amended notice. Thus, we apply the same reasoni ng, and find that this mistake does not entitle Weaver to relief.

26Weaver also argues that the notice was inadequate

because he was not convicted of armed robbery on th at date, but rather of two separate charges -- robbery and criminal conspiracy -- relating to the robbery of t wo banks on the same day. Here, our analysis is the same as it was with the second mistake regarding the armed robbery convictions, that is, we are persuaded that the government's information was sufficient to "signal[ ] the government's intention to rely upon a particular pr ior conviction." Gonzalez-Lerma, 14 F.3d at 1486. Thus, we find that Weaver received adequate notice that the government would rely on his July 2, 1997 robbery

conviction.

Therefore, we find that the notice was sufficiently complete to provide Weaver with satisfactory notice under the statute, and that the District Court was correc t in not permitting Weaver, in effect, to take advantage of technical or clerical errors in the notice provided. Therefor e, we hold that the District Court did not err in finding Weav er received adequate notice as per 18 U.S.C. S 851.

3. Increasing Sentence Based on Prior Convictions N ot Charged in Indictment nor Proven to the Jury Beyond a Reasonable Doubt

Weaver contends that the failure to include his pri or convictions for serious violent felonies in the ind ictment and to charge the jury that it must find beyond a reasonable doubt that Weaver committed those prior offenses violated his right to due process or trial by jury. Our review of this issue is plenary. Mack, 229 F.3d at 231 ("This Court reviews de novo Mack's assertion that his due process rights were violated.").

In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court addressed this precise is sue. There, the Court decided that no due process violat ion occurs when prior convictions are used to increase a statutory maximum without being charged in an indic tment and proved to a jury beyond a reasonable doubt. Id. at 239- 41. Recently, in Apprendi v. New Jersey, 530 U.S. 4 66 (2000), the Court upheld the validity of Almendarez -Torres, singling out "the fact of a prior conviction" as th e exception

27to the rule that "any fact that increases the penal ty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt." Id. at 490.

Despite speculation about the future of AlmendarezTorres,18 we heed the words of the Supreme Court in Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484 (1989): "If a precedent of this Court has direct application in a case, yet appears to rest o n reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly contr ols, leaving to this Court the prerogative of overruling its own decisions." Nor do we find, as Weaver argues, that the "Three Strikes" requirement of a mandatory minimum sentence is distinguishable, for due process purpos es, from the increased permissive maximum penalty discussed in

Almendarez-Torres. Both have the effect of increasi ng the

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18. We note Chief Judge Becker's concurrence in Mac k, which highlighted the shaky ground on which Almendarez-To rres stands:

[T]he Apprendi majority went out of its way to cast the future viability of Almendarez-Torres into question . See id. at 2362
("Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of o ur reasoning today

should apply if the recidivist issue were contested , Apprendi does not contest the decision's validity and we need not revisit it for

purposes of our decision today to treat the case as a narrow exception to

the general rule we recalled at the outset."). M oreover, as

commentators have noted, five sitting Justices are now on record as saying that Almendarez-Torres was wrongly decided. See A pprendi, 120 S.Ct. at 2379 (Thomas, J., concurring); Almendarez-To rres, 523 U.S. at 248, 118 S.Ct. 1219 (Scalia, J., joined by Steven s, Souter, and Ginsburg, dissenting). I do not suggest that we should predict that the Court

will overturn Almendarez-Torres. Cf. State O il Co. v. Khan, 522

U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed. 2d 199 (1997 ) ("Despite what Chief Judge Posner aptly described as Albrecht's ` infirmities, [and] its increasingly wobbly, moth-eaten foundations, ' there remains the question whether Albrecht deserves continuin g respect under the doctrine of stare decisis. The Court of Appe als was correct in applying that principle despite disagreement with Albrecht, for it

is this Court's prerogative alone to overrule o ne of its precedents.")(emphasis added) (citation omitted). But the apprehension remains.

Mack, 229 F.3d at 239 n.5.

28sentence, based on findings not charged or made by the

jury, beyond what would otherwise be the statutory maximum. Therefore, we find that the District Court properly rejected Weaver's claim that the failure t o include his prior convictions for serious violent felonies in the indictment, and to charge the jury that it must fin d beyond a reasonable doubt that Weaver committed those prio r offenses, violated his right to due process or tria l by jury.

CONCLUSION

For all the foregoing reasons, we will AFFIRM the D istrict Court's Judgment and Conviction Order.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29