United States Court of Appeals

For the Eighth Circuit

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No. 15-2844

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Ruben Galvin Garcia, also known as Ruben Galvan Garcia

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: October 19, 2016

 Filed: December 30, 2016

[Unpublished]

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Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.

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PER CURIAM.

A jury convicted Ruben Galvin Garcia of one count of aiding and abetting

conspiracy to possess with intent to distribute and to distribute a controlled substance,

in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one count of distribution of a

controlled substance, in violation of 21 U.S.C. § 841(a)(1). Garcia appeals, arguing
that the district court should have allowed him to examine the list of potential jurors 1

and that the venire did not represent a fair cross section of the community. We

affirm. 

Garcia’s trial was held in Bismarck, North Dakota, then in the Southwestern

Division of the District of North Dakota. After the panel of potential jurors was

sworn and before trial began, Garcia’s counsel argued that the venire did not

represent a fair cross section of the community. Specifically, he argued:

[W]e should have on this potential jury panel at least three Native

Americans and with our two Indian reservations in this district[,] there

are none. With thislack of minority [representation, it] concerns me that

the clerk’s office has not drawn a fair crosssection of the community for

the jury panel . . . . 

The district court called as a witnessthe jury administrator for the United States

District Court in North Dakota. The administrator explained in detail the District’s

jury plan and testified that the pool of prospective jurors is randomly drawn from a

list of individuals who voted in the last presidential election. When asked whether

“we usually see at least one or two Native Americans on the potential jury panel,” the

administrator replied, “I would say not.” The district court overruled Garcia’s

objection and determined that the District’s “jury plan is racially neutral on its face.” 

It concluded that “this panel has been selected in a manner consistent with our plan

[and] that there is no systematic exclusion of anyone based on race or other improper

consideration.”

Garcia first argues that he should have been allowed to inspect the list of

potential jurors. A provision in the Jury Selection and Service Act, 28 U.S.C.

The Honorable Ralph R. Erickson, then Chief Judge, United States District 1

Court for the District of North Dakota. 

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§ 1862(f), gives defendants “essentially an unqualified right to inspect jury lists.” 

Test v. United States, 420 U.S. 28, 30 (1975) (per curiam). “To avail himself [or

herself] of [the] right of accessto otherwise unpublic jury selection records, a litigant

need only allege that he [or she] is preparing a motion challenging the jury selection

procedures.” United States v. Stanko, 528 F.3d 581, 587 (8th Cir. 2008) (quoting

United States v. Alden, 776 F.2d 771, 773 (8th Cir. 1985)) (alteration in Alden). 

Garcia did not ask to inspect the list of potential jurors, nor did he allege that he was

preparing a motion to challenge the jury selection procedures or otherwise indicate

to the district court that he sought the jury list. Garcia thus failed to avail himself of

the right to inspect the jury selection records, and the district court did not err in

failing to order sua sponte that those records be made available. 

Garcia argues that the jury panel did not represent a fair cross section of the

community. He claims that the jury selection process improperly excluded Native

Americans from the venire, in violation of his Sixth Amendment rights. To prevail

on this claim, Garcia must prove: “(1) Native Americans are a distinctive group in

the community; (2) their representation in his venire was not fair and reasonable in

relation to their representation in the community; and (3) their under-representation

resulted from their systematic exclusion from the jury-selection process.” United

States v. Morin, 338 F.3d 838, 843 (8th Cir. 2003). Even assuming that Garcia has

established the first two elements, he cannot show that Native Americans are

systematically excluded from the jury selection process in the District of North

Dakota. We have previously upheld North Dakota’s jury selection plan, which, as

mentioned above, drawsits pools of prospective jurorsrandomly fromlists of persons

who voted in the last presidential election. See United States v. Greatwalker, 356

F.3d 908, 911 (8th Cir. 2004) (per curiam); Morin, 338 F.3d at 843-44. We have said

that “[a]bsent proof that Native Americans, in particular, face obstacles to voter

registration in presidential elections, ethnic and racial disparities between the general

population and jury pools do not by themselvesinvalidate the use of voter registration

lists and cannot establish the systematic exclusion of allegedly under-represented

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groups.” Greatwalker, 356 F.3d at 911 (quoting Morin, 338 F.3d at 844). Garcia has

not attempted to establish that Native Americans faced obstaclesto registering to vote

in the presidential election, and he thus has failed to show that Native Americans

were systematically excluded from the jury selection process.

Garcia also argues that the composition of the jury violated his constitutional

right to equal protection. “In order to make out a prima facie case of an equal

protection violation in the composition of a jury, a defendant must show that an

identifiable, distinct class has been substantially under-represented in the source from

which jurors have been drawn over a significant period of time.” United States v.

Horne, 4 F.3d 579, 588 (8th Cir. 1993) (citing Castaneda v. Partida, 430 U.S. 482,

494 (1977)). Garcia argues that the jury administrator’s testimony that there were not

usually “at least one or two Native Americans on the potential jury panel” establishes

a systematic exclusion of Native Americans from venires. That testimony alone,

however, does not constitute a prima facie showing that Native Americans have been

substantially under-represented from the venires over a significant period of time. 

Garcia has not presented evidence showing the number of Native Americans who live

in the Southwestern Division of the District of North Dakota or the number of Native

Americans who have served in its venires over time. He likewise has not shown a

difference between the percentage of Native Americans in the Division’s population

and the percentage of Native Americans in the Division’s venire. Accordingly, his

equal protection claim must fail. Compare Castaneda, 430 U.S. at 495 (holding that

the respondent’s showing “that the population of the county was 79.1% MexicanAmerican, but that, over an 11-year period, only 39% of the persons summoned for

grand jury service were Mexican-American” established a prima facie case of

discrimination against Mexican-Americans in the county’s grand jury selection

process), with Horne, 4 F.3d at 588 (holding that a showing that the division’s venire

during a two-month period was 1.4% African-American and that the division’s

population was 2.9% African-American presented too slight a statistical deviation to

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establish a prima facie case of discrimination against African-Americans in the

division’s venire).

The judgment is affirmed. 

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