The opinion of the court was delivered by: John W. Sedwick United States District Judge
ORDER AND OPINION [Re: Motion at Docket 21]
At docket 21, defendant Sabil Mujahid moves for an alternative jury selection process. The United States of America opposes the motion at docket 42. Oral argument was not requested and would not assist the court.
Mujahid is a federal prisoner at the Anchorage Correctional Complex. He is serving a prison sentence for possession of a firearm as a felon. In the case at bar, Mujahid has been accused of multiple counts of sexual abuse, aggravated sexual abuse, and abusive sexual contact perpetrated on other inmates.
In his last trial in this court, Mujahid also moved for a mistrial based on an alleged denial of his Sixth Amendment right to a jury pool representing a fair cross-section of the community, a corresponding denial of his Fifth Amendment right to equal protection of the laws, and a violation of the Jury Selection and Service Act of 1968 ("JSSA").*fn1 In 2002, the District of Alaska adopted the current Plan for Random Selection of Grand and Petit Jurors. The plan calls for random selection of the jury pool from State of Alaska voter registration lists. It divides the district into five geographic divisions, corresponding to cities in which the court sits. State election districts provide the boundaries of each division. The relevant division for purposes of this motion is the Anchorage Division, which includes the Anchorage, Kenai Peninsula, MatanuskaSusitna, Aleutian East, Aleutian West, Dillingham, and Lake & Peninsula Boroughs, as well as communities outside those boroughs such as Cordova in the East and Bethel in the West. Mujahid previously argued that voter registration lists should be supplemented in order to ensure representation of a fair cross-section of the Anchorage Division. Mujahid's motion for a mistrial was denied, and he was ultimately sentenced to ten years imprisonment.*fn2
In the present motion, Mr. Mujahid raises similar arguments regarding the constitutionality of the District of Alaska's jury selection plan. Mujahid seeks implementation of a new plan or supplementary measures before trial.
Mujahid argues that the District of Alaska's jury selection plan violates the fair cross-section requirement of the Sixth Amendment. To establish a prima facie violation, a defendant must show
(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.*fn3 The first element is not disputed. Mujahid is African-American, and African-Americans constitute a distinct class.*fn4
To satisfy the second element, Mujahid relies on the data he used to
support his motion for mistrial in the previous case.*fn5
That data indicates that since 2001, African-Americans have
made up an average of 2.06% of master jury wheels in the District of
Alaska.*fn6 African-Americans make up 5.2% of the
total population in the Anchorage Division.*fn7 The
absolute disparity is therefore 3.14%.*fn8 Absolute
disparities of 7.7% or lower are insufficient to establish
under-representation in the Ninth Circuit.*fn9 Mujahid
has therefore failed to satisfy the second prong of the Sixth
Mujahid argues that comparative disparity--the percentage obtained from dividing the absolute disparity by the group's percentage of the total population--is a better measure of under-representation "when members of a distinctive group compose only a small percentage of those eligible for jury service."*fn10 Here, the comparative disparity is 60%--3.14% divided by 5.2%. This means that, on average, 60% of eligible African-American jurors have been excluded from master jury wheels since 2001. While this number is troubling, "[t]he comparative disparity method can distort the effect of disparities in representation when absolute numbers are low."*fn11 Such is the case here: African-Americans make up a relatively small percentage of the population in the Anchorage Division, and the absolute disparity in their representation in jury pools is low. Consequently, the ...