                      UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT



                                     No. 97-50241
                                   Summary Calendar



UNITED STATES OF AMERICA,
                                                                        Plaintiff-Appellee,

                                          versus

JOSE VILLA YANEZ, also known
as Jose Luis Ayala,
                                                                     Defendant-Appellant.



                      Appeal from the United States District Court
                          For the Western District of Texas
                                 (SA-95-CR-319-1)

                                    January 26, 1998
Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges.

POLITZ, Chief Judge:*

        Jose Villa Yanez appeals a jury conviction for conspiracy to possess cocaine

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846, contending

that:    (1) the indictment should have been dismissed because of racial


   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
discrimination in the selection of the grand jury and that his trial should have been

stayed to allow the presentation of evidence of racial discrimination in the selection

of the petit jury; (2) the district court should have granted a mistrial because of an

alleged violation of an order in limine; (3) evidence of Yanez’s prior conviction was

admitted in violation of Fed. R. Evid. 404(b); and (4) the evidence was insufficient

to support his conviction. Our review of the record and briefs reflects no reversible

error and we affirm.

                                    Background

      Yanez contacted a confidential informant advising that he was looking for

a source of cocaine. After numerous telephone negotiations and meetings with the

confidential informant and others, Yanez was arrested and charged by a grand jury

with conspiracy to possess cocaine with intent to distribute, attempting to possess

cocaine with intent to distribute, and aiding and abetting. After a trial by jury

Yanez was convicted of the conspiracy charge and the attempt and aiding-and-

abetting charges were dismissed.        Yanez was sentenced to 240 months of

imprisonment to be followed by a 10-year term of supervised release. He timely

appealed.

                                      Analysis

1. Representative Jury Issue

                                          2
        Yanez contends that in the jury selection process he was denied his right to

a grand jury and petit jury selected from a fair cross section of the community in

violation of 28 U.S.C. § 1861 and the sixth amendment. In Duren v. Missouri the

Supreme Court announced a test for establishing violation of a defendant’s right to

a representative jury which requires the defendant to show:

        (1) that the group alleged to be excluded is a “distinctive” group in the
        community; (2) that the representation of this group in the venires
        from which the 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.1

        The trial court found that the first prong of the Duren test was met but that

Yanez had failed to establish that African-Americans or Hispanics were

underrepresented on the grand jury panel or that minorities systematically were

excluded from grand or petit jury venires. We review this factual determination for

clear error.2

        The second prong in Duren requires proof that a distinctive group in the

community is not fairly represented in jury venires. Yanez compares the racial and

ethnic composition of the grand jury to that of the gross voting-age population in



   1
       439 U.S. 357, 364 (1979).
   2
       United States v. McKinney, 53 F.3d 664 (5th Cir. 1995).
                                           3
the relevant court division community. This is not the proper base; rather, one must

examine the jury-eligible population.3 Nevertheless, even accepting the figures

used by Yanez, he fails to prove that any claimed underrepresentation rises to a

legally significant level.

       Yanez contends that comparative disparity, rather than absolute disparity, is

the more appropriate measure to be used by this court to determine the severity of

a minority group’s underrepresentation on jury panels.4 We agree with the trial

court that in cases where “there is no other evidence other than statistics to show

a violation of the fair-cross-section requirement, absolute disparity is an appropriate

yardstick by which to measure the severity of minority’s under representation.”5

Using Yanez’s statistics the trial court found an absolute disparity of 2.15 % for

African-Americans and 9.62% for Hispanics in the grand jury panel, and an


   3
    United States v. Fike, 82 F.3d 1315 (5th Cir.), cert. denied; Douglas v. United States,
117 S.Ct. 241 (1996).
   4
     Absolute disparity measures the difference between the proportion of the distinctive
groups in the population from which the jurors are drawn and the proportion of the groups
on the jury list. Comparative disparity looks to the percentage by which the probability of
serving as a juror is reduced for people in the distinctive group and is calculated by dividing
the absolute disparity by the percentage of the group in the overall population and then
multiplying by 100%.
   5
     United States v. Yanez, No. 95-319 (W.D.Tex. Oct. 11, 1996). Although absolute
disparity is an appropriate method for dealing with jury challenges, it is not the sole means
that may be used to establish unlawful jury discrimination. See United States v. Butler, 615
F.2d 685 (5th Cir. 1980).
                                              4
absolute disparity of 6.15% for African-Americans and 5.63% for Hispanics on the

petit jury panel. This level of disparity fails to satisfy the second prong of the

Duren test.6

         Even if the level of disparity was statistically significant, Yanez has failed

to satisfy the third Duren prong, systematic exclusion. Yanez maintains that

minorities effectively are systematically excluded from the jury selection process

by the choosing of names of potential jurors from lists of registered voters rather

than from a broader pool, such as lists of licensed drivers. Even if, as Yanez

contends, African-Americans and Hispanics vote in a lower proportion than the rest

of the population, that alone does not make the jury selection process illegal absent

proof that obstacles were placed in the path of members of the minorities

attempting to register to vote or to vote.7 The Jury Selection Service Act8 expressly

provides for the use of voter registration lists. Such lists may be used as the sole

source for selecting jury pools. This assignment of error is without merit.

         Nor do we find any merit in Yanez’s claims of an error in the trial court’s

refusal to grant a mistrial when an undercover officer witness unexpectedly


   6
       United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980).
   7
       Floyd v. Garrison, 996 F.2d 947 (8th Cir. 1993).
   8
       28 U.S.C. §§ 1861-1869.
                                             5
mentioned that Yanez was a drug dealer, or in its ruling on Rule 404(b) evidence.

Finally, his claim that the evidence was insufficient for a conviction because he

was entrapped does not pass muster. No such plea was raised in the trial court and

we review only for plain error.9 Our review of the record persuades that the

evidence adduced strongly supports a finding of Yanez’s predisposition to commit

the charged offense.

        The convictions and sentences are AFFIRMED.




   9
       Douglas v. United Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
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