                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                         _________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 11-10909                  JANUARY 31, 2012
                            Non-Argument Calendar                JOHN LEY
                         _________________________                CLERK


                   D.C. Docket No. 6:09-cr-00110-JA-KRS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ROBERT EDWARD PRITT, JR.,

                                                             Defendant-Appellant.
                         _________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (January 31, 2012)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Robert Edward Pritt appeals his convictions for assaulting a correctional

officer and for assaulting a correctional officer with a deadly weapon. He argues
that (1) the jury selection process of the Orlando Division of the Middle District of

Florida causes the African American and Hispanic populations to be

underrepresented in the jury pool in violation of the Sixth Amendment and the

Jury Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. §§ 1861 et seq.; (2)

the jury selection plan of the Middle District of Florida violates the JSSA because

it does not supplement voter lists with another source of names; and (3) the district

court erred in denying his motions for additional discovery under the JSSA, for an

evidentiary hearing under the JSSA, and for the appointment of experts.

                                           I.

      We review de novo constitutional challenges to jury selection processes,

United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995), as well as claims

under the JSSA, see United States v. Carmichael, 560 F.3d 1270, 1277–79 (11th

Cir. 2009).

                                          A.

      The Sixth Amendment provides that a criminal defendant “shall enjoy the

right to a speedy and public trial[] by an impartial jury of the State and district

wherein the crime shall have been committed.” U.S. Const. amend. VI. The

Supreme Court has explained that this requires “the selection of a petit jury from a

representative cross section of the community.” Taylor v. Louisiana, 419 U.S.

                                           2
522, 528, 95 S. Ct. 692, 697 (1975). To establish a prima facie violation of this

constitutional 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.

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979). If a defendant

cannot establish any one of these elements, his claim under the Sixth Amendment

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

       To determine whether the representation of a group is fair and reasonable,

we look only to the “absolute disparity” produced in the selection process. Id.

Here, this term refers to the percentage point difference between the percentage of

the African American and Hispanic populations eligible for jury service and the

percentage of African Americans and Hispanics in the jury pool. See Carmichael,

560 F.3d at 1280. “Under black letter Eleventh Circuit precedent, ‘if the absolute

disparity . . . is ten percent or less, the second element is not satisfied.’” Id.

(quoting Grisham, 63 F.3d at 1078–79).1

       1
         The former Fifth Circuit reserved the question of whether this rule applies if a group is
less than 10 percent of the community. United States v. Maskeny, 609 F.2d 183, 190 (5th Cir.
1980) (noting that it was not necessary to address the argument that “reliance on absolute
disparity could lead to approving the total exclusion from juries of a minority that comprise[s]
less than ten percent of the population” because “all the groups [at issue in the case] comprise[d]

                                                 3
       Both in the district court and on appeal, Pritt conceded that for each of the

years he questions, none of the relevant absolute disparities exceeded 10 percent.2

Instead, he urges us to reassess the requirement that a criminal defendant

demonstrate an absolute disparity of more than 10 percent. Although Pritt’s

argument has some force, this panel may not revisit that requirement. Under our

prior precedent rule, “[w]e may disregard the holding of a prior opinion only

where that holding is overruled by [this] Court sitting en banc or by the Supreme

Court.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quotation

marks omitted).

       Pritt argues that the Supreme Court’s decision in Berghuis v. Smith, ___

U.S. ___, 130 S. Ct. 1382 (2010), requires us to reconsider our precedent. We are

not persuaded. In Berghuis, the Supreme Court did observe that the absolute

disparity test is “imperfect.” Id. at 1393. But the Court also made the same

observation about the other tests that the lower courts have applied. See id. Pritt


more than ten percent of the community”).
       2
         Specifically, in 2007, African Americans were 10.4 percent of the general population,
but only 6.44 percent of the qualified jury wheel (QJW); Hispanics were 10.2 percent of the
general population, but only 8.34 percent of the QJW. In 2009, African Americans again were
10.4 percent of the general population, but only 6.95 percent of the QJW; Hispanics were 10.2
percent of the general population, but only 9.51 percent of the QJW. Under our Circuit
precedent, African Americans and Hispanics must be deemed to be fairly represented in the jury
pool in both 2007 and 2009 so long as they account for at least 0.4 percent and 0.2 percent of the
QJW.

                                                4
emphasizes that the Supreme Court declined to adopt the absolute disparity rule.

But that is true because the Court found it unnecessary to specify which test is

appropriate. Id. at 1393–94 & n.4. (noting that it had “no cause to take sides today

on the method or methods by which underrepresentation is appropriately

measured.”). The Supreme Court thus did not “actually abrogate” our prior

precedent. Kaley, 579 F.3d at 1255.3 The district court did not err in rejecting

Pritt’s Sixth Amendment claim.4

                                                 B.

       The JSSA provides that “all litigants in Federal courts entitled to trial by

jury shall have the right to grand and petit juries selected at random from a fair

cross section of the community in the district or division wherein the court

convenes.” 28 U.S.C. § 1861. The core requirement of the JSSA is that district

courts “place into operation a written plan” designed to protect this right. Id. §

1863(a). If the JSSA is violated, a criminal defendant may move to dismiss the



       3
         But the Supreme Court noted that absolute and comparative disparity measurements
“can be misleading when, as here, members of the distinctive group comp[ose] [only] a small
percentage of those eligible for jury service.” Berghuis, 130 S. Ct. at 1393 (quotation marks
omitted).
       4
         In view of this analysis, it is unnecessary for us to address Pritt’s argument that he has
established the third element of the Duren test—that the underrepresentation arises from
systematic exclusion. See Pepe, 747 F.2d at 649 (holding that if a defendant does not establish
any element of the Duren test, his claim under the Sixth Amendment fails).

                                                  5
indictment or stay the proceedings. Id. § 1867(a). However, “[b]y its terms, the

JSSA provides remedies only for a ‘substantial failure to comply’ with its

requirements.” Carmichael, 560 F.3d at 1277 (quoting 28 U.S.C. § 1867(d)). For

a violation of the JSSA to be “substantial,” it must frustrate one of the principles

underlying the statute, such as the fair cross-section principle. Id. “The standard

for determining a violation of the statutory fair cross-section requirement is the

same as that applied in assessing a sixth amendment fair cross-section violation.”

United States v. Rodriguez, 776 F.2d 1509, 1510 n.1 (11th Cir. 1985). As set out

above, Pritt has not carried his burden to demonstrate a Sixth Amendment

violation. Thus, his claim that the operation of the jury selection plan in the

Orlando Division of the Middle District of Florida constitutes a substantial

violation of the JSSA must also be rejected.

                                           II.

      The JSSA provides that a jury selection plan must “specify whether the

names of prospective jurors shall be selected from the voter registration lists or the

lists of actual voters . . . within the district or division.” 28 U.S.C. § 1863(b)(2).

Also, the JSSA requires that a plan “prescribe some other source or sources of

names in addition to voter lists where necessary to . . . protect the rights” under the

statute. Id. The Middle District of Florida’s jury selection plan requires only the

                                           6
use of voter lists; it does not contemplate other sources of names. Pritt suggests

that this deficiency also entitles him to a remedy under the JSSA. This argument

also lacks merit. The JSSA provides a remedy for a defendant only if a violation

is “substantial.” Carmichael, 560 F.3d at 1277. Having evaluated his arguments,

we conclude that Pritt has failed to show that the Middle District of Florida’s

failure to supplement the voter lists has given rise to such a violation. Pritt is

therefore not entitled to a remedy under the JSSA.

                                          III.

      Pritt filed a motion for additional discovery pursuant to 28 U.S.C. § 1867(f).

He also requested that the district court hold an evidentiary hearing pursuant to 28

U.S.C. § 1867(d). Finally, Pritt filed a motion for appointment of experts under 18

U.S.C. § 3006A(e)(1). On appeal, Pritt suggests that the district court erred in

denying each of these motions. These arguments fail as well.

                                           A.

      The JSSA provides that if a criminal defendant files a motion to dismiss or

stay under the statute, “[t]he parties . . . shall be allowed to inspect, reproduce, and

copy [the] records or papers [used by the clerk of court in connection with the jury

selection process] during the preparation and pendency of such a motion.” 28

U.S.C. § 1867(f). Pritt argues that the district court’s decision to deny his motion

                                           7
for additional discovery is inconsistent with the Supreme Court’s pronouncement,

in Test v. United States, 420 U.S. 28, 96 S. Ct. 749 (1975), that under this

statutory provision, “a litigant has essentially an unqualified right to inspect”

records regarding jury selection. Id. at 30, 96 S. Ct. at 750 (footnote omitted). We

cannot agree.

       In Test, the Supreme Court faced a defendant who was given no access to

the court’s records. Indeed, the only material that the defendant was able to

provide to support his motion to dismiss was an affidavit from his counsel

containing facts disclosed by testimony in a jury challenge in another case. Id. at

29, 96 S. Ct. at 750. The Supreme Court held, under those circumstances, that it

was error for the district court to deny the defendant’s request to inspect the jury

selection records. See id. at 29–30, 96 S. Ct. at 750–51.

       Here, Pritt was given access to records that enabled him to calculate the

relevant absolute disparities. Pritt was thus given the requisite material to

ascertain the facts that, under our precedent, are essential to his jury composition

claims. Unlike the defendants in Test and other cases, see, e.g., Gov’t of Canal

Zone v. Davis, 592 F.2d 887, 888–89 (5th Cir. 1979),5 Pritt was given access to


       5
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                               8
records that enabled him to “determine whether he has a potentially meritorious

jury challenge.” Test, 420 U.S. at 30, 95 S. Ct. at 750. Under these

circumstances, we cannot say that the district court erred in denying his motion for

additional discovery. See also United States v. McLernon, 746 F.2d 1098,

1122–23 (6th Cir. 1984).

                                           B.

      A party is entitled to a hearing under the JSSA only if the facts that he

provides in conjunction with his motion would, if true, “constitute a substantial

failure to comply” with the statute. 28 U.S.C. § 1867(d); see also United States v.

Bearden, 659 F.2d 590, 597 (5th Cir. 1981). The JSSA allows a district court to

“swiftly dispose of [a motion] if it fails, on its face, to state a case for which a

remedy could be granted.” H.R. Rep. No. 90-1076, at 14 (1968), as reprinted in

1968 U.S.C.C.A.N. 1792, 1806. As noted, Pritt conceded in the district court that

the relevant absolute disparities did not exceed 10 percent. The district court thus

did not err in denying his request for an evidentiary hearing.

                                           C.

      Under 18 U.S.C. § 3006A, a defendant who is financially unable to obtain

expert services that are “necessary for adequate representation” may request funds

for such services. 18 U.S.C. § 3006A(e)(1). A district court may refuse to

                                            9
approve such funds if it concludes that the defendant does not have a plausible

claim or defense. United States v. Rinchack, 820 F.2d 1557, 1564 (11th Cir.

1987). Given that Pritt conceded that the relevant absolute disparities did not

exceed 10 percent, he did not have claims that are plausible under our precedent.

The district court did not abuse its discretion in denying his motion for

appointment of experts.

                                         IV.

      For these reasons, we affirm the judgment of the district court.

      AFFIRMED.




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