                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 11-50417
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      3:10-cr-00558-
                                            BTM-1
SALVADOR HERNANDEZ-ESTRADA,
            Defendant-Appellant.          OPINION


     Appeal from the United States District Court
         for the Southern District of California
     Barry T. Moskowitz, District Judge, Presiding

           Argued and Submitted En Banc
     December 10, 2013—San Francisco, California

                 Filed April 30, 2014

   Before: Alex Kozinski, Chief Judge, and Sidney R.
Thomas, Barry G. Silverman, Susan P. Graber, Ronald M.
Gould, Richard A. Paez, Johnnie B. Rawlinson, Carlos T.
Bea, Milan D. Smith, Jr., N. Randy Smith and Jacqueline
              H. Nguyen, Circuit Judges.

              Opinion by Judge Thomas;
       Concurrence by Judge Milan D. Smith, Jr.;
          Concurrence by Judge N.R. Smith
2         UNITED STATES V. HERNANDEZ-ESTRADA

                           SUMMARY*


                          Criminal Law

    The en banc court affirmed a conviction in a case in
which the defendant argued that the United States District
Court for the Southern District of California’s jury selection
procedures violated the Jury Selection and Service Act of
1968, the equal protection component of the Fifth
Amendment, and the fair cross-section requirement of the
Sixth Amendment.

    The en banc court overruled this court’s prior exclusive
reliance on the absolute disparity test in fair cross-section and
equal protection cases, and permitted district courts to
analyze such cases using the most appropriate methods
applicable to the particular challenge. The en banc court held
that courts may use one or more of a variety of statistical
methods to respond to the evidence presented, and the
challenging party must establish not only statistical
significance, but also legal significance.

    The defendant argued that the Southern District violated
the fair cross-section requirements of the Jury Selection Act
and the Sixth Amendment by exclusively using registered
voter rolls as its juror source list, resulting in
underrepresentation of African American and Hispanic
citizens in the jury pool. The en banc court held that even
assuming that the defendant established that the
representation of African Americans and Hispanics in venires

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         UNITED STATES V. HERNANDEZ-ESTRADA                   3

from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community, he
failed to provide evidence that such underrepresentation is
due to systematic exclusion by the Southern District, and
therefore failed to establish a prima facie fair cross-section
case under the Jury Selection Act or the Sixth Amendment.
The en banc court likewise held that because there is no
evidence of discriminatory intent, the defendant cannot make
out a prima facie case of an equal protection violation.

    The en banc court held that the Southern District did not
commit substantial violations of the Jury Selection Act (a) by
using outdated text in an English proficiency question on its
prospective juror questionnaire; (b) by permitting
unsupervised court clerks to dismiss a small number of
prospective jurors based on professed difficulty
comprehending English; (c) by failing to return jury
questionnaires to prospective jurors who neglected to answer
race and ethnicity questions; or (d) by failing to keep up-to-
date jury representativeness statistics on regular Form AO-12
reports unless prompted by litigation.

    Concurring in the judgment, Judge M. Smith, joined by
Judges Silverman and Bea, would affirm on the basis that the
defendant’s fair cross section claim fails under the absolute
disparity test. Judge M. Smith wrote that by overruling
circuit precedent requiring exclusive application of that test,
the majority needlessly raises a host of difficult questions for
which there are no clear answers, and it leaves trial courts
with little guidance on how to fulfill their responsibilities in
such cases.

    Concurring in the judgment, Judge N.R. Smith would
affirm because the defendant’s fair cross-section claims fail
4        UNITED STATES V. HERNANDEZ-ESTRADA

under the tests used by any United States Circuit Court of
Appeals.


                        COUNSEL

Michele A. McKenzie (argued), Federal Defenders, San
Diego, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
David Curnow, and Victor P. White (argued), Assistant
United States Attorneys, San Diego, California, for Plaintiff-
Appellee.


                         OPINION

THOMAS, Circuit Judge:

    The Sixth Amendment and the Jury Selection and Service
Act of 1968 (“the Jury Selection Act”) afford criminal
defendants “the right to be tried by an impartial jury drawn
from sources reflecting a fair cross section of the
community.” Berghuis v. Smith, 559 U.S. 314, 319 (2010).
Our circuit precedent required courts to evaluate challenges
to the fair cross-section requirement using the “absolute
disparity” test. United States v. Rodriguez–Lara, 421 F.3d
932, 943 (9th Cir. 2005). On re-examining the question, we
conclude that confining a fair cross-section analysis to the
absolute disparity test is inappropriate. However, we affirm
the conviction in this case on other grounds.
         UNITED STATES V. HERNANDEZ-ESTRADA                    5

                                I

    Salvador Hernandez-Estrada (“Hernandez”) was indicted
on February 18, 2010, for being a deported alien found in the
United States in violation of 8 U.S.C. § 1326. Hernandez
moved to dismiss the indictment, arguing that the United
States District Court for the Southern District of California
(“Southern District”) had violated the Jury Selection Act, the
equal protection component of the Due Process Clause of the
Fifth Amendment, and the fair cross-section requirement of
the Sixth Amendment.

     Hernandez primarily assailed the Southern District for its
failure to supplement its juror source list, beyond the use of
voter registration rolls, with sources such as Department of
Motor Vehicle records. Hernandez also argued that the
Southern District violated the Jury Selection Act by (1) using
outdated text in the English proficiency question on its
prospective juror questionnaire to disqualify prospective
jurors improperly under a superseded legal standard;
(2) allowing unsupervised court clerks to disqualify
prospective jurors who answered in the affirmative regarding
their English proficiency but expressed doubts about their
linguistic abilities elsewhere on the form; (3) failing to return
juror questionnaires to prospective jurors who did not answer
the form’s race and ethnicity questions; and (4) failing to
maintain and report jury wheel representativeness statistics
(on Form AO-12 reports) unless prompted to do so by
litigation.

    The district court agreed with Hernandez “that there are
flaws in the [Southern] District’s jury selection procedures”
and acknowledged that “improvements could be made.”
Indeed, the court recommended that the Southern District
6          UNITED STATES V. HERNANDEZ-ESTRADA

take steps to remedy flaws in its jury selection procedures.1
However, the court ultimately concluded that those flaws did
not constitute constitutional violations or substantial
violations of the Jury Selection Act. The court denied
Hernandez’s motion to dismiss, and he was convicted as
charged.

    A three-judge panel of our court affirmed the conviction.
United States v. Hernandez-Estrada, 704 F.3d 1015, 1019
(9th Cir. 2012). Chief Judge Kozinski, joined by Judge
Watford, filed a concurring opinion urging us to reconsider en
banc our exclusive reliance on the absolute disparity test in
jury selection pool cases as enunciated in Rodriguez-Lara.
Id. at 1025-26 (Kozinski, C.J., concurring). Upon the
majority vote of the active, non-recused judges of the court,
we agreed to rehear this case en banc. United States v.
Hernandez-Estrada, 729 F.3d 1224 (9th Cir. 2013).

    In his appeal, Hernandez challenges only the district
court’s denial of his motion to dismiss. We review
“independently and non-deferentially a challenge to the

    1
     In response to the district court’s order and the three-judge panel
decision in this case, the Southern District issued an order, General Order
No. 626-A, which made significant changes to its jury selection
procedures. General Order 626-A requires the regular completion of
Form AO-12 reports, directs any juror questionnaires that raise questions
about a prospective juror’s English-language skills to be submitted to the
“Jury Judge,” and dictates that an insert be included with each juror
questionnaire that explains the importance of questions regarding race and
ethnicity and includes the correct, modern version of the race and ethnicity
questions. While these changes are laudable, General Order 626-A does
not render Hernandez’s claims moot because he seeks to vacate his
conviction based on the jury selection procedures in place at the time of
his criminal proceedings. We need not and do not decide whether the
corrected procedures would withstand a challenge.
         UNITED STATES V. HERNANDEZ-ESTRADA                    7

composition of grand and petit juries” under both the
Constitution and the Jury Selection Act. United States v.
Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

                               II

    Hernandez argues that the Southern District’s exclusive
use of registered voter rolls as its juror source list results in
underrepresentation of African American and Hispanic
citizens in the jury pool and, as a result, violates the fair
cross-section requirements of the Jury Selection Act and the
Sixth Amendment. Because the same analysis determines
whether the jury selection procedures meet the fair cross-
section requirement under either the Jury Selection Act or the
Sixth Amendment, we consider those two claims together.
United States v. Miller, 771 F.2d 1219, 1227–28 (9th Cir.
1985).

                               A

     Under the Jury Selection Act and the Sixth Amendment,
litigants in federal courts entitled to trial by jury have the
right to “juries selected at random from a fair cross section of
the community.” 28 U.S.C. § 1861; Miller, 771 F.2d at
1227–28. Jurors must be selected from either “voter
registration lists or the lists of actual voters of the political
subdivisions within the district or division.” Id. § 1863(b)(2).
However, a district’s jury selection plan must “prescribe
some other source or sources of names in addition to voter
lists where necessary to” meet the fair cross-section
requirement, guarantee that all citizens have the opportunity
to be considered for jury service, and ensure no citizen is
excluded from jury service due to race, color, religion, sex,
8        UNITED STATES V. HERNANDEZ-ESTRADA

national origin, or economic status. Id. §§ 1861, 1862,
1863(b)(2).

    The Supreme Court in Duren v. Missouri “established a
three-part test for determining whether a jury selection
process passes constitutional muster” under the fair cross-
section requirement:

       “In order to establish a prima facie violation
       of the fair-cross-section requirement, the
       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
       underrepresentation is due to systematic
       exclusion of the group in the jury-selection
       process.”

Miller, 771 F.2d at 1228 (quoting Duren v. Missouri,
439 U.S. 357, 364 (1979)). “Once the defendant has
established a prima facie case, the burden shifts to the
government to show that ‘a significant state interest be
manifestly and primarily advanced by those aspects of the
jury-selection process . . . that result in the disproportionate
exclusion of a distinctive group.’” Rodriguez-Lara, 421 F.3d
at 940 (quoting Duren, 439 U.S. at 367–68).

    Hernandez satisfied the first Duren requirement because
African Americans and Hispanics are distinctive groups in the
community. United States v. Cannady, 54 F.3d 544, 547 (9th
Cir. 1995). The second prong “requires proof, typically
         UNITED STATES V. HERNANDEZ-ESTRADA                    9

statistical data, that the jury pool does not adequately
represent the distinctive group in relation to the number of
such persons in the community.” United States v. Esquivel,
88 F.3d 722, 726 (9th Cir. 1996).

    Before the district court, Hernandez produced evidence
based on Fisher’s Exact test showing that African Americans
and Hispanics were underrepresented in the Southern District
jury pool. Bound by Rodriguez-Lara, however, the district
court applied the absolute disparity test and found that, in
2009, the absolute disparity on the qualified jury wheel for
Hispanics in the Southern District was -2.07% (i.e., Hispanics
were overrepresented by 2.07%) and for African Americans
was 1.71% (i.e., African Americans were underrepresented
by 1.71%). Because these percentages were far below the
7.7% threshold recognized in Rodriguez-Lara, the district
court dismissed Hernandez’s fair cross-section claim.

    In his petition for rehearing en banc, Hernandez
challenges our use of the absolute disparity test, arguing that
the method unfairly favors large groups, makes it impossible
for small groups to successfully assert a constitutional or Jury
Selection Act violation, and has been criticized or rejected by
other courts. Hernandez urges us to abandon the absolute
disparity test and instead to adopt another method (or
methods), such as the comparative disparity or standard
deviation approaches.

                               B

     As an initial matter, the government argues that
Hernandez has waived his challenge to the absolute disparity
test by not specifically raising it before the three-judge panel.
Of course, we are not required to address an issue first raised
10       UNITED STATES V. HERNANDEZ-ESTRADA

in a petition for rehearing, and generally decline to do so. N.
Mariana Islands v. Lizama, 27 F.3d 444, 448 (9th Cir. 1994).
However, we have the authority and discretion to decide
questions first raised in a petition for rehearing en banc. See
Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 n.8 (9th Cir.
2001) (en banc) (“[F]ailure to raise an issue before an original
appellate panel does not preclude an en banc panel’s
jurisdiction over the issue.”). In fact, we have done so at the
government’s request. See Coe v. Thurman, 922 F.2d 528
(9th Cir. 1990), supplemental op., 922 F.2d at 533 & n.1 (9th
Cir. 1991) (per curiam) (exercising discretion in considering
Teague habeas issue first raised by the government in its
petition for rehearing). And we have, on occasion, raised and
addressed issues of circuit-wide importance ourselves en
banc. See Jeffries v. Wood, 114 F.3d 1484, 1493–99 (9th Cir.
1997) (en banc) (raising and deciding the retroactive effect of
a statute that became law after petitions for rehearing en banc
were filed), overruled in part on other grounds by Gonzalez
v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).
In addition, we have entertained issues en banc that were not
preserved in the district court when, as in this case, a “‘“ solid
wall of Circuit authority” would have rendered an objection
futile.’” Costa v. Desert Palace, Inc., 299 F.3d 838, 864 (9th
Cir. 2002) (en banc) (quoting Knapp v. Ernst & Whinney,
90 F.3d 1431, 1438–39 (9th Cir. 1996) (quoting Robinson v.
Heilman, 563 F.2d 1304, 1307 (9th Cir. 1977) (per curiam))).

    The Supreme Court has also held that appellate courts are
not obligated to treat issues raised for the first time on appeal
as absolutely waived. Granberry v. Greer, 481 U.S. 129,
133-35 (1987). And the Supreme Court has not deemed an
issue waived when it was first raised in a petition for
rehearing en banc before a circuit court. See United States v.
Jimenez Recio, 537 U.S. 270, 273–77 (2003) (overruling a
          UNITED STATES V. HERNANDEZ-ESTRADA                    11

line of Ninth Circuit cases despite the fact that the
government first challenged the cases only in its petition for
rehearing en banc).

    Therefore, contrary to the government’s argument, a party
does not necessarily forfeit an issue by first raising it in a
petition for rehearing en banc. Rather, it is a matter directed
to the exercise of our discretion. In this case, the defendant
tendered statistical evidence to the district court in support of
his claim that his jury panel did not reflect a fair cross-section
of the community. The district court rejected the evidence
because it was bound by circuit law to use a different
methodology. The three-judge panel lacked the authority to
alter circuit law without an intervening Supreme Court or en
banc decision that was clearly irreconcilable with our circuit
precedent. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). Therefore, it would have been futile for the
defendant to urge the three-judge panel to overrule binding
circuit precedent. However, Chief Judge Kozinski properly
and forcefully raised the issue in his panel concurrence, and
the defendant directly presented the question in his petition
for rehearing en banc.

    Given the significance of the questions raised by Chief
Judge Kozinski in his panel concurrence and presented by the
petition for rehearing en banc, and the potential impact on all
districts in our circuit, we elect in this instance to exercise our
discretion to address the issue en banc.

                                C

   Courts have employed a number of analytical methods
when faced with jury panel fair cross-section cases, including
12       UNITED STATES V. HERNANDEZ-ESTRADA

the absolute disparity test, the absolute impact test, the
comparative disparity test, and standard deviation analysis.

     The absolute disparity test, which is the test that we have
employed exclusively, examines “the difference between the
percentage of the distinctive group in the community and the
percentage of that group in the jury pool.” Rodriguez-Lara,
421 F.3d at 943. In other words, if a specific group makes up
10% of the population and 5% of the qualified jury wheel
(i.e., the list of prospective jurors who have been randomly
pulled from the juror source list, have been mailed juror
questionnaires, have returned those questionnaires, and have
been deemed qualified based on their response to those
questionnaires), the absolute disparity is 5%. See id. at
950–51 app. (conducting the absolute disparity analysis by
comparing the percentage of jury-eligible Hispanics in the
geographic region with the percentage of Hispanics in the
qualified jury wheel).

    In determining the percentage of a distinctive group in the
qualified jury wheel, the absolute disparity analysis excludes
those jurors who did not identify their race or ethnicity on
their jury questionnaire. Id. at 944 n.11. Furthermore, in
analyzing the distinctive group’s representation in the district
or region as a whole, a court “must rely on the statistical data
that best approximates the percentage of jury-eligible
[members of the distinctive group in question] in the district.”
United States v. Torres-Hernandez, 447 F.3d 699, 704 (9th
Cir. 2006). Although no bright-line rule exists as to what
level of absolute disparity constitutes a constitutional or Jury
Selection Act violation, we “have declined to find
underrepresentation of a distinctive group where the absolute
disparity was 7.7% or lower.” Rodriguez-Lara, 421 F.3d at
943–44.
         UNITED STATES V. HERNANDEZ-ESTRADA                 13

    We initially endorsed the absolute disparity method in
United States v. Potter, reasoning that a more comparative
statistical analysis could “distort the actual effect[s] of [a]
deviation” between a group’s representation in the population
at large and in the jury pool. United States v. Potter,
552 F.2d 901, 906 (9th Cir. 1977). We determined that the
absolute disparity method was the better and more accurate
course for assessing minority representation on jury pools.
Id. In later cases, we held that the absolute disparity method
was the sole mode of analysis for courts in the Ninth Circuit.
See, e.g., Sanchez-Lopez, 879 F.2d at 547 (“In determining
the underrepresentation of a particular group in jury venires,
we have consistently favored an absolute disparity analysis
and have rejected a comparative disparity analysis.”).

     Nevertheless, although we continued to employ absolute
disparity as our circuit’s sole test, we have repeatedly
criticized and questioned it. See, e.g., Serena v. Mock,
547 F.3d 1051, 1054 n.2 (9th Cir. 2008) (order) (“We
question, however, whether the approach compelled by our
case law [i.e., the absolute disparity approach] is
mathematically sound.”). Indeed, we have specifically
highlighted the fact that if a minority group makes up less
than 7.7% of the population in the jurisdiction in question,
that group could never be underrepresented in the jury pool,
even if none of its members wound up on the qualified jury
wheel. Rodriguez-Lara, 421 F.3d at 944 n.10 (“The
necessary implication of this margin is that if a distinctive
group makes up 7.7% or less of the community, then the fair
cross-section requirement offers no redress even if that group
is entirely shut out of the jury pool.”). For example, African
Americans constituted 5.2% of the population of the Southern
District in 2009. Therefore, under the absolute disparity test,
there could be no successful jury challenge in the Southern
14        UNITED STATES V. HERNANDEZ-ESTRADA

District for African Americans. As of the last census, the
District of Montana did not have any minority group that
exceeded 7.7% of its population.2 Thus, under Rodriguez-
Lara, there could never be a viable fair cross-section
challenge in the District of Montana. Although the Supreme
Court has refused to prescribe any specific type of analysis or
prohibit the use of the absolute disparity test, it too has noted
that the absolute disparity test “can be misleading” when the
distinctive group in question makes up only a small
percentage of the population. Berghuis, 559 U.S. at 329.

    The absolute disparity test also suffers from distortion
based on population size. For example, if we assume a group
makes up 90% of the population, but 80% of the jury pool,
there would be a 10% absolute disparity. Under those
circumstances, it is doubtful that any court would consider the
group underrepresented. However, if a population group
constituted 10% of the population, but had no representation
in a jury pool, that result might give rise to fair cross-section
concerns. Yet, the absolute disparity—10%—would be
identical under both scenarios.

    The absolute disparity test has been used by many courts
because it is easy to administer. Sara Sun Beale, Integrating
Statistical Evidence and Legal Theory to Challenge the
Selection of Grand and Petit Jurors, 46 Law & Contemp.
Probs. 269, 273 (1983). However, no court has been able to
articulate or defend it on any sound statistical basis. And
there is no statistical basis from which one could derive the
7.7% threshold that we articulated in Rodriguez-Lara. At
best, the method provides a very generalized gauge of a jury

  2
    Montana State & Country Quick Facts, U.S. Census Bureau (Jan. 6,
2014, 5:25 PM), http://quickfacts.census.gov/qfd/states/30000.html.
          UNITED STATES V. HERNANDEZ-ESTRADA                          15

pool when considering representation of groups that form a
substantial portion of the community. It also has some
comparative value because many courts have used it, so there
is some predictive history.3

    Closely related to the absolute disparity test is the
absolute impact test. Under this approach, the initial
calculation is the same as for the absolute disparity test.
However, the resulting number is then multiplied by the
number of persons on the particular panel. See, e.g., United
States v. Test, 550 F.2d 577, 588 n.11 (10th Cir. 1976). So,
for example, if a minority group constitutes 10% of the
population and there is a jury pool of 20, one would expect 2
jurors to be from the affected population group. Applying the
absolute impact test, if there was a 10% absolute disparity
between the proportion of that minority group in the
population and the proportion in the jury pool, one would
expect the absolute impact on the 20-person jury pool to be
2 jurors. If only 1 juror from the group were represented, a
court might not conclude that there was a significant
difference. The advantage of the test is that it applies the
disparity analysis to the actual jury pool to determine the
impact. However, because it is based on the absolute
disparity test, the absolute impact test bears many of the same
flaws.



   3
      However, even this marginal advantage can be illusory, if prior
decisions calculated the absolute disparity using a different method. For
example, the 7.7% threshold, which was first established in United States
v. Suttiswad, 696 F.2d 645, 648 (9th Cir. 1982), was not calculated using
our commonly accepted definition of absolute disparity. Instead, the
Suttiswad court derived the figure by comparing the percentage of
Hispanics who actually served on grand juries to the percentage of
Hispanics in the community, as reflected in census data. Id.
16       UNITED STATES V. HERNANDEZ-ESTRADA

    Recognizing the problems in the absolute disparity and
absolute impact tests, some courts have employed the
comparative disparity test.        Comparative disparity is
calculated “by taking the absolute disparity percentage and
dividing it by the percentage of the distinctive group in the
total population.” Rodriguez-Lara, 421 F.3d at 943 n.10. So,
using our prior example, the comparative disparity of the 90%
population group in an 80% jury pool would be 11%. The
comparative disparity of the 10% population group with no
representation in the jury pool would be 100%. Thus, the
comparative disparity test illustrates, in a general way, the
comparative differences in a manner that takes population
size into consideration. See Hirst v. Gertzen, 676 F.2d 1252,
1258 n.14 (9th Cir. 1982) (noting that a comparative disparity
method is “more informative” than the absolute disparity
method when the cognizable group “represents a small
percentage of the population”). However, one problem with
the comparative disparity test is that it can overstate the
underrepresentation of a group that has a small population
percentage. Let’s assume, for example, that a group
constitutes .1% of the population, with no representation in
the jury pool. The comparative disparity of that group would
be 100%. Few would argue that the absence of a group
representing just 0.1% of the population violates the fair
cross-section requirement, yet comparative disparity analysis
would suggest otherwise. In addition, “when the group is
very large the comparative method tends to validate
deviations that are unlikely to have been produced by chance
despite the fact that the disparity alters the representation of
the average jury substantially.” Beale, supra, at 274. As with
the absolute disparity test, no court has been able to articulate
or defend the use of a comparative disparity test on any sound
statistical basis.
           UNITED STATES V. HERNANDEZ-ESTRADA                          17

    Some courts have used an analysis of standard deviation,
which is the “measure of the predicted fluctuations from the
expected value.” Castaneda v. Partida, 430 U.S. 482, 496
n.17 (1977). Standard deviation has the advantage of being
firmly grounded in statistical theory, and generally applicable
to both large and small population groups. However, some
courts have questioned whether a pure standard deviation
analysis is appropriate given that the characteristics of the
general population differ from a pool of qualified jurors. See,
e.g., United States v. Rioux, 97 F.3d 648, 655 (2d Cir. 1996)
(“It is illogical to apply a theory based on random selection
when assessing the constitutionality of a qualified wheel. By
definition, the qualified wheel is not the product of random
selection; it entails reasoned disqualifications based on
numerous factors. It is irrational to gauge the qualified
wheel—an inherently non-random sample—by its potential
for randomness.”).4

    An additional problem with exclusive reliance on
standard deviation analysis is, as one commentator has noted,
that “[t]he probability that the composition of a jury wheel
arose by random selection from the community is not directly
related to the defendant’s chances of drawing a jury of a
certain composition.” Peter A. Detre, A Proposal for
Measuring Underrepresentation in the Composition of the
Jury Wheel, 103 Yale L.J. 1913, 1928 (1994). “[B]y
imagining larger and larger jury wheels, the probability of
any degree of underrepresentation arising by chance can be
made arbitrarily small.” Id.



  4
    Of course, this criticism is not unique to standard deviation analysis;
it could be directed at most methods used to evaluate whether the jury
pool represents a fair cross-section of the community.
18        UNITED STATES V. HERNANDEZ-ESTRADA

    Another alternative is the disparity-of-risk test. This test
measures “the likelihood that the difference between a
group’s representation in the jury pool and its population in
the community will result in a significant risk that the jury
will not fairly represent the group.” Commonwealth v.
Arriaga, 781 N.E.2d 1253, 1265 (Mass. 2003). The
calculation is performed by “comparing the chance that a
defendant's jury (before or without voir dire) will include
members of a distinct group if that group’s representation in
the jury pool is consistent with its population in the
community with the chance that a defendant’s jury will
include members of the same group given the particular
underrepresentation alleged.” People v. Bryant, 822 N.W.2d
124, 143 (Mich.) (footnote omitted), cert. denied, 133 S. Ct.
664 (2012).

    In the case at hand, the defendant tendered experts who
employed Fisher’s Exact test. Fisher’s Exact test is used to
calculate the probability that the number of individuals of a
particular race-selected or gender-selected classification
would be the same as the number actually selected, if the
selection were independent of race or gender. It examines the
difference in proportions of the subgroup in the population
and the proportion appearing in the jury pool, and calculates
the amount of discrepancy between the observed data and
what would be expected by chance, and then fixes a
probability to that result.5 It is designed to examine statistical
significance in small sample sizes. Jones v. Pepsi–Cola



  5
   Using Fisher’s Exact test, experts concluded that “there is absolutely
no evidence that the observed proportions of Hispanics in either the
available or qualified wheels is attributable to the vagaries of sampling
from a population.”
         UNITED STATES V. HERNANDEZ-ESTRADA                   19

Metro. Bottling Co., 871 F. Supp. 305, 311 (E.D. Mich.
1994).

    A survey of our sister circuits demonstrates the
inconsistency of approaches. Some of our sister circuits still
use the absolute disparity method exclusively. See, e.g.,
United States v. Royal, 174 F.3d 1, 10 (1st Cir. 1999) (“We
accordingly employ the absolute disparity test . . . .”); Rioux,
97 F.3d at 655–56 (“Although we have admittedly waffled on
this issue in the past, the law in this Circuit strongly suggests
the absolute disparity/absolute numbers approach is
appropriate in this case.”); United States v. Pepe, 747 F.2d
632, 649 n.18 (11th Cir. 1984) (“We consider deviation from
proportional representation in absolute rather than
comparative terms . . . .”). Others, however, have adopted a
more flexible approach that uses multiple modes of analysis.
See, e.g., United States v. Orange, 447 F.3d 792, 798 (10th
Cir. 2006) (“[W]e have consistently relied upon two
measurements: absolute and comparative disparity.”); Mosley
v. Dretke, 370 F.3d 467, 479 n.5 (5th Cir. 2004) (noting that
the circuit uses absolute disparity alone when the group is a
large part of the overall population but leaving “open the
possibility that if the distinctive group at issue makes up less
than 10% of the population, comparative disparity may be
used”). The Third Circuit uses a multi-modal analysis that
considers “evidence of absolute disparity, comparative
disparity, and deviation from expected random selection.”
Ramseur v. Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (en
banc).

    After surveying the case law and alternative methods of
analysis, and bearing in mind our own past criticism of our
exclusive reliance on the absolute disparity test, we conclude
that it is appropriate to abandon the absolute disparity
20         UNITED STATES V. HERNANDEZ-ESTRADA

approach. Accordingly, we overrule the requirement, as set
forth in Rodriguez-Lara and its predecessor cases, that the
absolute disparity test be the exclusive analytical measure
employed in fair cross-section challenges.

     However, we do not prescribe an alternative exclusive
analysis to be applied in every case. The Supreme Court has
declined to specify “the method or test courts must use to
measure the representation of distinctive groups in jury
pools.” Berghuis, 559 U.S. at 329. We follow its lead and
also decline to confine district courts to a particular analytical
method. As our discussion has illustrated, the appropriate test
or tests to employ will largely depend on the particular
circumstances of each case. Instead, we hold that courts may
use one or more of a variety of statistical methods to respond
to the evidence presented. Allowing courts and defendants to
use a more robust set of analytical tools will ensure more
accurate, and narrowly tailored, responses to individual
Duren challenges, which we can then assess on a fully
developed record specific to the circumstances presented.6

    In addition, the challenging party must establish not only
statistical significance, but also legal significance. The
results of any statistical method must be examined in the
context of the likely, actual, “real life” impact on the jury
pool at issue. As we have observed in earlier cases, “we look
to people not percentages.” United States v. Kleifgen,


  6
    And, despite our criticism and concerns about the limitations of the
absolute disparity test, we do not preclude its use by district courts.
Bearing in mind its flaws, district courts may still find the test useful in
formulating a generalized analysis of the jury pool, particularly given the
extensive discussion and application to specific circumstances it has
received in case law.
          UNITED STATES V. HERNANDEZ-ESTRADA                          21

557 F.2d 1293, 1297 (9th Cir. 1977).7 In other words, if a
statistical analysis shows underrepresentation, but the
underrepresentation does not substantially affect the
representation of the group in the actual jury pool, then the
underrepresentation does not have legal significance in the
fair cross-section context.

    In sum, the defendant must establish a prima facie case
that the jury pool does not reflect a fair cross-section of the
community. We overrule our prior precedent which required
courts to analyze challenges exclusively by the use of the
absolute disparity test. Rather, in determining whether the
defendant has satisfied the burden of establishing a prima
facie case, courts must consider the evidence proffered by the
defendant, including expert testimony, and employ the most
appropriate method, or methods, applicable to the specific
challenge in the context of the particular jury pool at issue.

                                   D

    A revision of our precedent would normally warrant
remanding the case to the district court to consider the
question anew. However, we need not do so here because,
even assuming that Hernandez has met the second Duren
requirement, he has not satisfied the third. The third Duren
prong requires proof that the underrepresentation in question
“‘is due to systematic exclusion of the group in the jury-
selection process.’” Miller, 771 F.2d at 1228 (quoting Duren,
439 U.S. at 364). To be systematic, underrepresentation must
be “‘due to the system by which juries were selected.’”


 7
   We have used this phrase in connection with the absolute disparity and
absolute impact tests. Potter, 552 F.2d at 905–06. But the concept is not
tethered to the application of those tests.
22       UNITED STATES V. HERNANDEZ-ESTRADA

Randolph v. California, 380 F.3d 1133, 1141 (9th Cir. 2004)
(quoting Duren, 439 U.S. at 367). In Duren, for example, the
underrepresentation was systematic because women, but not
men, could opt out of jury service by so indicating on the
juror questionnaire. Id. (discussing Duren). Moreover, if
they did not return the questionnaire, women, but not men,
were presumed to have opted out. Id. On the contrary, in
Randolph, while the appellant showed that Hispanics were
underrepresented in the venire, we rejected his cursory
argument that “Hispanics return questionnaires at a lower rate
than the general population” and concluded that Randolph
had failed to establish a prima facie case under Duren
because he had “not shown any relationship between the
disproportionately low percentage of Hispanics in the venire
and the juror-selection system the County uses.” Id.

    Here, while Hernandez has introduced significant
evidence regarding underrepresentation of African Americans
and Hispanics in the qualified juror pool, he has failed to
provide evidence that this underrepresentation is due to the
system employed by the Southern District, and has therefore
failed to establish a prima facie case under Duren. Although
he has highlighted several procedures of the Southern District
that violate the Jury Selection Act, as we discuss below, those
violations are not substantial, and Hernandez has not tendered
sufficient proof that the violations constitute a systemic cause
of any underrepresentation in the Southern District’s venire.
Most importantly, like the defendant in Rodriguez-Lara,
Hernandez has not provided sufficient evidence “linking sole
reliance on voter registration lists for jury selection to current
systematic exclusion of [distinctive groups] in the [Southern
District].” Rodriguez-Lara, 421 F.3d at 945. In other words,
Hernandez “has not shown that the alternative system he
proposes—[supplementing the juror source list]—would
           UNITED STATES V. HERNANDEZ-ESTRADA                         23

increase [minority group] representation.”                   Randolph,
380 F.3d at 1141.8

    Thus, we affirm the district court’s denial of Hernandez’s
Jury Selection Act and Sixth Amendment fair cross-section
claims because he has failed to meet his burden under the
third prong of Duren. Because he did not establish a prima
facie case under Duren, the burden did not shift to the
government to justify the infringement, and our inquiry is at
an end.

                                   III

    Hernandez also alleges that underrepresentation of
African Americans and Hispanics in the Southern District’s
venire has violated his equal protection rights under the Fifth
Amendment. The Supreme Court established a framework
for analyzing Fifth Amendment jury composition challenges
in Castaneda v. Partida. To establish a prima facie equal
protection case under Castaneda, a party must: “(1) establish
that the group, of which the appellant is a member, is ‘one
that is a recognizable, distinct class, singled out for different
treatment under the laws, as written or as applied;’ (2) prove
the degree of underrepresentation ‘by comparing the
proportion of the group in the total population to the
proportion called to serve as grand jurors, over a significant


 8
   We recognize, however, that Hernandez has presented more evidence
than the petitioner in Randolph, who presented “no evidence” to support
his conclusory suggestions. Id. at 1141. Moreover, we recognize the high
hurdle Hernandez faces, given the logistical and financial difficulties of
providing sufficient empirical support for his allegations. Nevertheless,
we hold that in this case, Hernandez has not met the requirements of
Duren’s third prong.
24       UNITED STATES V. HERNANDEZ-ESTRADA

period of time;’ and (3) discriminatory intent.” Esquivel,
88 F.3d at 725 (quoting Castaneda, 430 U.S. at 494).

     As with the fair cross-section cases, courts have employed
differing statistical methods for assessing underrepresentation
in the equal protection context. Indeed, some circuits have
employed a different test for equal protection challenges than
for fair cross-section challenges. Compare Alston v. Manson,
791 F.2d 255, 257-58 (2d Cir. 1986) (applying statistical
decision theory to equal protection jury pool challenges), with
Rioux, 97 F.3d at 655–56 (using absolute disparity/absolute
numbers for a fair cross-section challenge). Because the
essential question of underrepresentation is the same in both
equal protection and fair cross-section challenges, there is no
reason to require or apply different measures. Consistent
with our holding as to cross-section challenges, we decline to
impose a specific form of analysis on district courts. Rather,
district courts should employ the method or methods most
appropriate for the specific challenge.

    But statistical proof of underepresentation does not end
the inquiry in equal protection cases. The challenging party
must also establish discriminatory intent, which we have held
is “the most crucial factor in an equal protection case.”
Esquivel, 88 F.3d at 727. In this case, assuming, without
deciding, that Hernandez has shown underrepresentation,
there is no evidence of discriminatory intent and, as a
consequence, Hernandez cannot make out a prima facie case.

                              IV

    We turn next to Hernandez’s four remaining Jury
Selection Act claims. The Jury Selection Act was enacted “in
response to numerous complaints of racial discrimination in
           UNITED STATES V. HERNANDEZ-ESTRADA                         25

the selection of potential jurors.” Id. at 725. The act
prescribes a variety of procedures to guide districts in
compiling qualified jury pools. See 28 U.S.C. §§ 1861–1869.
Nevertheless, not just any violation of the Jury Selection Act
is actionable. Instead, the violation must constitute a
“‘substantial failure to comply’” with the Jury Selection Act.
United States v. Nelson, 718 F.2d 315, 318 (9th Cir. 1983)
(quoting 28 U.S.C. § 1867(a)). Technical violations of the
Jury Selection Act are “insubstantial where they do not
frustrate the Act’s goals.” Id. (citing United States v.
Goodlow, 597 F.2d 159, 162 (9th Cir. 1979)); see also United
States v. Erickson, 75 F.3d 470, 477 (9th Cir. 1996). The two
underlying goals of the Act are the random selection of
prospective jurors “from voter lists” and exclusions of
prospective jurors “on the basis of objective criteria only.”
Nelson, 718 F.2d at 318.

                                   A

    Hernandez argues that the Southern District violated the
Jury Selection Act by using outdated text in the English
proficiency question on its prospective juror questionnaire
and, as a result, wrongly excluding qualified prospective
jurors. Hernandez notes, and the government concedes, that
the Southern District’s jury questionnaire contains outdated
text instead of the current and less stringent text mandated by
the Jury Selection Act.9 Hernandez concludes that the

  9
     Question 4 asked: “Do you read, write, speak, and understand the
English language?” The parties agree that the relevant standard, set forth
at 28 U.S.C. § 1865(b)(2), (3), requires only the disqualification of any
otherwise-eligible person who “is unable to read, write, and understand
the English language with a degree of proficiency sufficient to fill out
satisfactorily the juror qualification form” or “is unable to speak the
English language.”
26       UNITED STATES V. HERNANDEZ-ESTRADA

Southern District violated the Jury Selection Act by wrongly
excluding all prospective jurors who answered “no” to the
outdated English proficiency questionnaire, some of whom
might have answered the question differently if it had
reflected the current wording of the Jury Selection Act.

    Despite the government’s concession that the
questionnaire is outdated, Hernandez still must show that this
violation is substantial in that it contravenes the twin policies
of the Jury Selection Act. The Fifth Circuit in United States
v. Bearden provides helpful guidance for determining
whether the wrongful exclusion of prospective jurors
constitutes a substantial violation of the Jury Selection Act.

            For wrongful exclusions, determining
        whether there has been a substantial violation
        [of the Jury Selection Act] has both
        quantitative and qualitative aspects.
        Quantitatively, a substantial violation
        generally will not be found if the number of
        errors is small. Qualitatively, the inquiry is
        whether there has been a frustration of the
        [Jury Selection] Act’s underlying principle of
        exclusions on the basis of objective criteria
        only.

United States v. Bearden, 659 F.2d 590, 607 (5th Cir. 1981)
(citation omitted).

    The outdated text of Question 4 does not violate the
qualitative aspect of the Jury Selection Act, because no
subjective criteria seeped into the district’s qualification
determinations. Whether the wording was correct or not,
prospective jurors who answered “no” were uniformly
           UNITED STATES V. HERNANDEZ-ESTRADA                          27

disqualified—an objective determination premised on each
respondent’s professed English-language abilities and not on
subjective considerations.10

    As for the quantitative aspect of the Jury Selection Act,
Hernandez must show a significant number of wrongful
exclusions to render the Jury Selection Act violation
substantial. Here, Hernandez has failed to do so. Hernandez
focuses in particular on the fact that 1,420 Hispanic citizens
were disqualified “solely because of their answer to the
outdated English proficiency question.” Indeed, he notes that
25.2% of Hispanics disqualified for any reason were
disqualified solely because of their response to the English
proficiency question and that 69.7% of all those disqualified
solely for answering “no” to Question 4 were Hispanics.
These numbers should give the Southern District pause, but
they do not constitute a substantial violation.

    Even in the unlikely event that all 1,420 of those Hispanic
citizens would have answered Question 4 in the affirmative
had it been worded differently, and were therefore wrongfully
excluded, those 1,420 only constitute 2.05% of the 69,375
who returned the jury questionnaires and 3.49% of the 40,743
on the qualified jury wheel. These percentages are similar to,
if a bit more than, the 1.2% and 1.6% respectively that the
Fifth Circuit found to be insubstantial in Bearden.11 659 F.2d

  10
     Furthermore, Hernandez has provided insufficient evidence that the
criteria employed here carry “discriminatory potential or effect” such that
their objective nature would not save them. Id. at 608.
 11
    We do not mean to imply that the percentages listed in Bearden or in
the cases Bearden cites, id. at 607, establish a bright-line rule for how
large an exclusion must be to constitute, quantitatively, a substantial
violation. Instead, we simply hold that, in this case, Hernandez has failed
28        UNITED STATES V. HERNANDEZ-ESTRADA

at 607. Accordingly, the outdated text of Question 4 and the
related exclusions do not constitute a substantial violation of
the Jury Selection Act.

                                   B

    Hernandez also contends that the Southern District
contravened the Jury Selection Act when unsupervised court
clerks disqualified prospective jurors who answered in the
affirmative regarding their English proficiency but expressed
doubts about their English-comprehension abilities elsewhere
on the form. Hernandez focuses in particular on the
exclusion of twelve Hispanic prospective jurors who
answered “yes” to Question 4 of the Southern District’s jury
questionnaire but were excluded because they expressed
doubts about their linguistic abilities in the “Remarks”
section of the form.

    The pertinent statute, 28 U.S.C. § 1865(a), requires the
jury selection process—specifically the selection of qualified
prospective jurors based on responses to the jury
questionnaire—to be conducted “under [the] supervision of
the court.” While the Southern District’s local rules authorize
clerks to make qualification decisions under court
supervision, it mandates that “[q]uestionable requests for
being excused or other status determinations must be directed
to the court.” S.D. Cal. Civ. R. 83.10(c)(5). Here, the Jury
Selection Act and the relevant rules required either a judicial
officer to make the decision as to the qualifications of these
twelve Hispanic jurors or, at a minimum, closer scrutiny by
judicial officers.


to show that Question 4 of the juror questionnaire substantially violates
the Jury Selection Act.
         UNITED STATES V. HERNANDEZ-ESTRADA                 29

    Nevertheless, the fact that clerks alone made these
determinations does not make this Jury Selection Act
violation substantial. See United States v. Evans, 526 F.2d
701, 706 (5th Cir. 1976) (“While some technical errors were
made, the fact that clerks, rather than a judge, made these
determinations does not necessitate reversal.”). Furthermore,
Hernandez provides evidence of the exclusion of only a small
number of prospective jurors—for example only twelve
Hispanic prospective jurors—by unsupervised clerks, as
compared to the 40,743 prospective jurors in the qualified
jury wheel. See Bearden, 659 F.2d at 606–07 (concluding
that the erroneous dismissal of 495 prospective jurors was
“insignificant in relation to the large number of prospective
jurors handled by the clerk’s office”). Finally, the violation
does not contravene the policies underlying the Jury Selection
Act because it does not intrude on the random selection of
jurors from voter lists at earlier stages in the jury selection
process, nor does it introduce subjective criteria into the
selection process. See Goodlow, 597 F.2d at 161–62 (finding
no substantial violation of the Jury Selection Act where men
“who take care of young children” were automatically
excluded from jury service). In fact, the prospective jurors
appear to have been excluded objectively and uniformly
based solely on a professed difficulty comprehending the
English language. Thus, we affirm the district court’s denial
of Hernandez’s motion to dismiss with respect to the
unsupervised dismissal of certain prospective jurors by court
clerks.

                              C

   Hernandez also challenges the Southern District’s failure
to return jury questionnaires to prospective jurors who
neglected to answer the questionnaire’s race and ethnicity
30       UNITED STATES V. HERNANDEZ-ESTRADA

questions (“Question 10”). Title 28 U.S.C. § 1864(a) states
that in “any case in which it appears that there is an omission,
ambiguity, or error in a [filled-out jury questionnaire], the
clerk or jury commission shall return the form with
instructions to the person to make such additions or
corrections as may be necessary and to return the form to the
clerk or jury commission within ten days.” Nevertheless, the
Southern District has not returned questionnaires on which
prospective jurors have failed to complete the race or
ethnicity questions, due in part to guidance from the
Administrative Office that such omissions do not require
returning the questionnaires. In 2009, 18.17% of respondents
did not answer the race question and 35.85% did not respond
to the ethnicity question.

    Even assuming that the Southern District should have sent
back each of these questionnaires, this violation does not
constitute a substantial violation of the Jury Selection Act
because it does not contravene the law’s twin policy goals.
Nelson, 718 F.2d at 318. First, the jurors selected from the
master jury wheel to receive jury questionnaires were still
randomly selected. Even if all of those who did not respond
to the race or ethnicity questions were white, thereby
reducing the percentage of minority distinctive groups in the
qualified jury wheel, Hernandez has not sufficiently
established a link between the failure to return the jury
questionnaires and any underrepresentation of various
distinctive groups in the 2009 qualified jury wheel. Second,
because no jurors were excluded due to their failure to
respond to the race and ethnicity questions, no subjective
criteria were introduced into the qualification process. As a
result, we affirm the district court as to the Southern District’s
failure to return jury questionnaires.
         UNITED STATES V. HERNANDEZ-ESTRADA                 31

                              D

     Finally, Hernandez asserts that the Southern District
violated the Jury Selection Act by failing to keep up-to-date
jury representativeness statistics on regular Form AO-12
reports, unless prompted by litigation. Title 28 U.S.C.
§ 1863(a) requires each district court to “submit a report on
the jury selection process within its jurisdiction [i.e., the
Form AO-12 report] to the Administrative Office of the
United States Courts in such form and at such times as the
Judicial Conference of the United States may specify.” The
form’s instructions require district courts to complete a Form
AO-12 report at least each time the master jury wheel is
filled.

    Hernandez is correct that the Southern District has failed
to complete its AO-12 reports on time. Indeed, the 1999,
2001, and 2003 reports were completed in 2004, and the 2005
and 2007 reports were finished in 2008. The timing of these
reports seems to coincide with jury pool litigation in the
Southern District, specifically, challenges in the Martinez-
Orosco and Garcia-Arellano cases. See Motion to Dismiss,
United States v. Martinez-Orosco, No. 3:03-cr02601-JAH
(S.D. Cal. Oct. 8, 2004), ECF No. 47; Motion to Dismiss,
United States v. Garcia-Arellano, No. 3:08-cr02876-BTM
(S.D. Cal. Nov. 7, 2008), ECF No. 21. Still, Hernandez had
access to all the relevant AO-12s he needed for his litigation,
and has not demonstrated how the late filing of AO-12 reports
amounts to a substantial violation of the Jury Selection Act
that contravenes the goals of the law. Thus, we affirm the
district court’s decision to deny Hernandez’s motion to
dismiss as to the late filing of AO-12 reports.
32       UNITED STATES V. HERNANDEZ-ESTRADA

                                V

    Because Hernandez has failed to establish a prima facie
case under Duren, has not established discriminatory intent
in the jury selection process, and has not provided sufficient
evidence of substantial violations of the Jury Selection Act,
we affirm the district court’s denial of Hernandez’s motion to
dismiss on Fifth and Sixth Amendment and Jury Selection
Act grounds. However, we overrule our prior exclusive
reliance on the absolute disparity test in fair cross-section and
equal protection cases, and permit district courts to analyze
fair cross-section and equal protection cases using the most
appropriate methods applicable to the particular challenge.

     AFFIRMED.



M. SMITH, Circuit Judge, with whom SILVERMAN and
BEA, Circuit Judges, join, concurring in the judgment:

    The “absolute disparity” test, which we have employed
for nearly forty years, leaves no doubt that Hernandez-
Estrada’s fair cross section claims fail under Duren’s second
prong. See Duren v. Missouri, 439 U.S. 357, 364 (1979). For
this reason, I agree with the majority that we should affirm
the judgment of the district court. The majority, however,
declines to confine its opinion to answering the questions that
are necessary to the resolution of this appeal. Instead, it treats
this straight-forward case as a convenient Rocinante that it
can mount like a knight-errant to challenge the specter of
windmill giants on the distant horizon—be they real or
imagined. I decline to join the majority’s glorious quest.
          UNITED STATES V. HERNANDEZ-ESTRADA                    33

     By overruling our circuit precedent requiring that district
courts exclusively apply the “absolute disparity” test to fair
cross section claims, the majority needlessly raises a host of
difficult questions for which there are no clear answers, and
it leaves trial courts with little guidance on how to fulfill their
responsibilities in such cases. The resulting legal vacuum will
likely trigger an avalanche of fair cross section claims that
have almost no chance of success under Duren, but which
will burden the courts for years without meaningfully
improving the administration of justice.

    We apply a three-part test to determine whether a jury
selection process complies with the fair cross section
requirement. Id. To establish a prima facie fair cross section
claim, the 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 jury pools 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 underrepresentation is due to systematic exclusion of the
group in the jury-selection process. Id.

    In assessing Duren’s second prong, we require statistical
data demonstrating that “the jury pool does not adequately
represent the distinctive group in relation to the number of
persons in the community.” United States v. Esquivel, 88 F.3d
722, 726 (9th Cir. 1996). Until today, we have repeatedly
held that courts in this circuit must use the “absolute
disparity” test to analyze this statistical data. See, e.g., United
States v. Rodriguez-Lara, 421 F.3d 932, 943–44 (9th Cir.
2005); United States v. Sanchez-Lopez, 879 F.2d 541, 547
(9th Cir. 1989); United States v. Potter, 552 F.2d 901, 905–06
(9th Cir. 1977). While the “absolute disparity” test is not
34         UNITED STATES V. HERNANDEZ-ESTRADA

flawless,1 we have explained that this specific mode of
analysis is particularly useful in assessing whether the fair
cross section requirement has been violated because the
analysis focuses on “people and not percentages.” Potter,
552 F.2d at 905. That is, the “absolute disparity” test looks at
the effect of a given deviation on the actual numerical
composition of grand juries, and assesses whether the absence
of such a deviation would affect jury composition in a way
that meaningfully affects a defendant’s Sixth Amendment
rights.2




   1
     See, e.g., Rodriguez-Lara, 421 F.3d at 943 n.10 (“The necessary
implication of [the rule] is that if a distinctive group makes up 7.7% or
less of the community, then the fair cross-section requirement offers no
redress even if that group is entirely shut out of the jury pool.” (emphasis
omitted)).
  2
     See Potter, 552 F.2d at 906. The fair cross section requirement is
grounded in a defendant’s Sixth Amendment right to a trial by an impartial
jury. See Taylor v. Louisiana, 419 U.S. 522, 526–30 (1975). Unlike
Batson challenges, which protect potential jurors’ equal protection rights,
see Batson v. Kentucky, 476 U.S. 79, 84 (1986), fair cross section claims
focus on whether a group’s disproportionate representation on a jury
wheel undermines the fairness of a defendant’s indictment or trial, Taylor,
419 U.S. at 526–30. The “absolute disparity” test is useful in conducting
this analysis, because, unlike other statistical methods, it looks at how
statistical disparities actually affect jury composition. Potter, 552 F.2d at
906. As a statistical matter, correcting an absolute disparity of less than
4.3% will, on average, result in the addition of less than one group
member on a grand jury of 23. This small effect is not “substantial,” and
cannot be said to affect the fairness of a defendant’s trial. Id.; see also
United States v. Armstrong, 621 F.2d 951, 956 (9th Cir. 1980). Applying
this rationale, we have accepted absolute disparities as high as 7.7%.
United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982). On average,
a 7.7% disparity will result in an under-representation of 1.76 group
members on a grand jury of 23. Id. This effect is also insubstantial. Id.
         UNITED STATES V. HERNANDEZ-ESTRADA                   35

    Today the majority announces that it is abandoning “our
exclusive reliance on the absolute disparity test.” But in so
doing, the majority “decline[s] to confine district courts to a
particular analytical method.” Instead, the majority explains
that “the appropriate test or tests to employ will largely
depend on the particular circumstances of each case,” and it
encourages courts to use “one or more of a variety of
statistical methods to respond to the evidence presented.”
However, the majority also notes that, like the “absolute
disparity” test, each of these alternative statistical methods is
likewise flawed.

    Hereafter, trial courts will be charged with making ad hoc
determinations regarding which statistical method, or
combination of statistical methods, should be used to assess
individual fair cross section claims. Yet, the majority
provides little more than abstractions to guide the trial courts.
While the majority discusses the benefits and disadvantages
of a number of statistical frameworks, it explicitly declines to
advise trial courts as to when and how these frameworks
should be employed. The majority even declines to illustrate
how the principles announced today would apply to the facts
of this case. In so doing, the majority leaves unclear what role
the “absolute disparity” test now plays, when alternative
statistical methods should be employed, and which
combination of statistical methods are appropriate under what
circumstances.

    Even more troubling is that the majority’s injection of
these uncertainties into our jurisprudence is entirely
unnecessary to the disposition of this case. The majority
concludes that, regardless of any statistical disparities in the
jury pool from which Hernandez-Estrada’s grand jury was
selected, his fair cross section claims fail under Duren’s third
36        UNITED STATES V. HERNANDEZ-ESTRADA

prong, because he failed to provide evidence that any
underrepresentation was systematic in nature. In reaching this
conclusion, the majority seems to shift the focus of fair cross
section claims from Duren’s second prong to its third. But the
majority provides no guidance as to how systematic
underrepresentation can be demonstrated where, as here, the
source of the purported underrepresentation does not appear
on the face of a district’s jury questionnaire. See Duren,
439 U.S. at 366–67 (holding that underrepresentation was
systematic where the jury questionnaire permitted women,
but not men, to opt out of jury service).

    Both the district court and our three-judge panel
concluded that, under the “absolute disparity” test,
Hernandez-Estrada’s fair cross section claims fail as a matter
of law. I would affirm on the same basis, and I would only
consider whether a change in our fair cross section
jurisprudence is warranted when the outcome of the case
requires such a determination.

     I respectfully concur only with the judgment.



N.R. SMITH, Circuit Judge, concurring in the judgment:

    A jury pool must be “reasonably representative” of the
distinctive groups in the community. Taylor v. Louisiana,
419 U.S. 522, 538 (1975). However, the U.S. Supreme Court
has not prescribed a particular statistical test for evaluating to
what degree a distinctive group’s underrepresentation in a
jury pool substantiates a fair cross-section claim. Berghuis v.
Smith, 559 U.S. 314, 329 (2010).
           UNITED STATES V. HERNANDEZ-ESTRADA                          37

    I would affirm the district court’s decision, because
Hernandez-Estrada’s fair cross-section claims fail Duren’s
second prong1 under the tests used by any United States
Circuit Court of Appeals. In the Southern District of
California during the relevant period, African-Americans
constituted 5.2% of the jury-eligible population and were
underrepresented.2 United States v. Hernandez-Estrada,
704 F.3d 1015, 1020–21 (9th Cir. 2012). The 2009 jury wheel
data reflects (1) a 1.7% absolute disparity, (2) a 32.7%
comparative disparity, (3) an absolute impact of 0.39 fewer
African-American jurors on a 23-member grand jury, and
(4) 14 standard deviations. See id. at 1018, 1021.

    This court has “declined to find underrepresentation of a
distinctive group where the absolute disparity was 7.7% or
lower.” United States v. Rodriguez-Lara, 421 F.3d 932,
943–44 (9th Cir. 2005). Thus, Hernandez-Estrada’s data did
not evidence actionable exclusion under Ninth Circuit law.

   Hernandez-Estrada’s data also does not reflect a
substantial exclusion under any other Circuit’s test. The First,
Seventh, Eighth, and Eleventh Circuits solely rely on the


   1
     A successful fair cross-section claim requires “(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 underrepresentation is due to systematic
exclusion of the group in the jury-selection process.” Duren v. Missouri,
439 U.S. 357, 364 (1979).
  2
    Hispanic people comprised 22.5% of the jury-eligible population.
Hernandez-Estrada, 704 F.3d at 1020. However, they were
overrepresented in the jury pool. Id. at 1021. Thus, I only address the
claim based on African-American underrepresentation.
38       UNITED STATES V. HERNANDEZ-ESTRADA

absolute disparity test. See United States v. Royal, 174 F.3d
1, 10–11 (1st Cir. 1999); United States v. Ashley, 54 F.3d
311, 314 (7th Cir. 1995); United States v. Clifford, 640 F.2d
150, 155 (8th Cir. 1981); United States v. Pepe, 747 F.2d 632,
649 n.18 (11th Cir. 1984). The 1.7% absolute disparity in this
case would not be sufficient to establish a prima facie fair
cross-section claim under these Circuits’ thresholds. See
Royal, 174 F.3d at 10–11 (upholding 2.97%); Ashley, 54 F.3d
at 314 (no prima facie case of underrepresentation if disparity
does not exceed 10%); Clifford, 640 F.2d at 155 (upholding
7.2%); United States v. Rodriguez, 776 F.2d 1509, 1511 (11th
Cir. 1985) (no prima facie case of underrepresentation if
disparity does not exceed 10%).

    The Second and Fifth Circuits apply absolute disparity
and absolute impact. See United States v. Rioux, 97 F.3d 648,
657–58 (2d Cir. 1995) (applying absolute disparity and
absolute impact); Mosley v. Dretke, 370 F.3d 467, 479 n.5
(5th Cir. 2004) (applying absolute disparity and noting
comparative disparity could be used in another case); United
States v. Goff, 509 F.2d 825, 826–27 (5th Cir. 1975)
(applying absolute impact test). Under Second and Fifth
Circuit law, Hernandez-Estrada’s absolute disparity figure is
too low, and the absolute impact of excluding less than one
grand juror would likewise be insufficient. See Rioux, 97 F.3d
at 658 (upholding 2.14% absolute disparity); United States v.
Biaggi, 909 F.2d 662, 678 (2d Cir. 1990) (holding absolute
impact of two fewer African-American jurors in a venire of
60 not actionable); United States v. Butler, 611 F.2d 1066,
1070 (5th Cir. 1980) (holding absolute disparity under 10%
not actionable); Goff, 509 F.2d at 826–27 (holding absolute
impact of 1.4 fewer African-American jurors in the 23-person
grand jury not actionable).
          UNITED STATES V. HERNANDEZ-ESTRADA                      39

    Hernandez-Estrada’s claim would also fail the Tenth
Circuit test applying absolute disparity and comparative
disparity. See United States v. Shinault, 147 F.3d 1266, 1273
(10th Cir. 1998) (holding insufficient a 2.56% absolute
disparity and a 50.09% comparative disparity when the group
at issue constituted 5.11% of the jury-eligible population).
The 1.7% absolute disparity and 32.7% comparative disparity
for a small minority population (5.2%) here would evidence
too insignificant an underrepresentation in the jury pool under
Tenth Circuit law.

    Similarly, the Third Circuit’s test, applying absolute
disparity, comparative disparity, and standard deviation,
would defeat Hernandez-Estrada’s claim (registering 14
standard deviations). See Ramseur v. Beyer, 983 F.2d 1215,
1230, 1232–33 (3d Cir. 1992) (en banc) (upholding 14.1%
absolute disparity, 40.1% comparative disparity when
distinctive group made up 35.9% of jury-eligible population,
28.9 standard deviations).

    Finally,3 Hernandez-Estrada’s statistical evidence would
not be actionable under the Fourth Circuit’s test. The Fourth
Circuit conflates the second and third Duren prongs and holds
that “use of current voter registration lists as the source for a
jury pool from which random selection of jurors is made
presumptively provides a fair cross-section.” United States v.
Lewis, 10 F.3d 1086, 1090 (4th Cir. 1993). To overcome the
presumption, there must be a showing of “affirmative
discrimination in [voter] registration.” Id. Here, Hernandez-
Estrada’s claim would fail, because there is no evidence of
such affirmative discrimination.

    3
      Neither the Sixth Circuit nor the D.C. Circuit has definitively
established a test for assessing Duren’s second prong.
40       UNITED STATES V. HERNANDEZ-ESTRADA

    While Hernandez-Estrada’s claims do not meet Duren’s
second prong, the majority is correct that exclusive use of the
absolute disparity test seems inappropriate. United States v.
Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005) and its
predecessors required us to accept up to a 7.7% absolute
disparity based on a distinctive group’s representation in a
district’s general populace and the group’s presence in the
district’s jury pool. Id. at 943–44. This threshold necessarily
doomed claims challenging the underrepresentation of
minority populations comprising less than 7.7% of the
general population. Id. Consequently, Rodriguez-Lara tended
to deny the historically disenfranchised the “opportunity to be
considered for service on grand and petit juries,” an interest
the Jury Selection and Service Act endeavors to protect.
28 U.S.C. § 1861.

    Those facts should cause us to question Rodriguez-Lara,
and overrule it in the appropriate case. However, we should
do so where a workable standard could be developed, based
on data and statistics in that case. Here, the majority relies on
the third Duren prong to affirm Hernandez-Estrada’s
conviction and avoids applying any new standard to replace
the rule expressed in Rodriguez-Lara. Had some statistical
analysis under Duren’s second prong been necessary to the
outcome of Hernandez-Estrada’s case (because he had
presented statistics tending to show actionable
underrepresentation), the majority could have demonstrated
a reasoned application of the appropriate statistical tests.
Such analysis could have served as a framework for district
courts to apply to future fair cross-section claims.

    We owe the district courts more direction than a survey of
statistical measures to solve this problem. While the
discussion of available tests may aid the district courts in
         UNITED STATES V. HERNANDEZ-ESTRADA                41

choosing a fitting measure for a given fair cross-section
challenge, the majority still provides no standard to evaluate
minority exclusion. With only discussion, the district courts
are left with at least these questions: In what circumstances
would the district court consider statistics from a particular
test? Should it apply more than one test? If so, which ones?
If it were to evaluate multiple tests, which would be
controlling? What outcomes under any test or tests would
constitute a legally intolerable exclusion?

    Formerly, Rodriguez-Lara compelled us to apply an
overly rigid rule, which, while providing certainty, also
tended to discriminate against some minority groups. Now at
the other end of the spectrum, the majority establishes a
laissez faire approach likely to precipitate entirely
uncertain—and likely conflicting—outcomes.

   Consequently, I respectfully concur only in the judgment.
