                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
       September 6, 2012—Pasadena, California

               Filed December 5, 2012

Before: Alex Kozinski, Chief Judge, Paul J. Watford and
          Andrew D. Hurwitz, Circuit Judges.

             Opinion by Judge Hurwitz;
         Concurrence by Chief Judge Kozinski
2         UNITED STATES V . HERNANDEZ-ESTRADA

                           SUMMARY*


                           Criminal Law

   The panel affirmed an illegal reentry conviction in a case
in which the defendant argued that in compiling its 2009
master jury wheel, the Southern District of California violated
the Jury Selection and Service Act of 1968 and the
Constitution.

    Applying the absolute disparity rule, the panel held that
because a juror source list consisting only of registered voters
did not substantially underrepresent African-Americans or
Hispanics in the community, the Southern District’s failure to
supplement that list did not violate the Sixth Amendment.
The panel also held that because the defendant neither alleged
nor showed discriminatory intent, there was no Fifth
Amendment equal-protection violation.

    The panel wrote that the Southern District Clerk’s Office
should not automatically disqualify individuals who express
doubt about their English skills, and should not put off
preparing statistical jury-representativeness forms required by
the Act, but that these technical violations did not frustrate
the Act’s goals and do not warrant merits relief in this case.

    The panel held that the Southern District’s dismissal of
prospective jurors based solely on a “no” answer to a question
whether jurors “read, write, speak and understand the English
language” was not a substantial violation of the Act because

  *
    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

it did not interfere with the Act’s key goals of randomness
and objectivity. The panel also held that the defendant did
not demonstrate that the Southern District substantially
departed from the requirements of the Act by failing to return
questionnaires to prospective jurors who failed to answer
questions on race and/or ethnicity.

    The panel cautioned the Southern District to take note of
the statutory violations identified and amend its practices in
the future.

    Chief Judge Kozinski (joined by Judge Watford)
concurred without enthusiasm because the rule the panel is
bound to apply – i.e., measuring disparity for fair cross
section purposes by looking at absolute disparity, and
accepting up to 7.7% of the total jury pool as a permissible
deviation – is clearly wrong.


                        COUNSEL

Michele A. McKenzie, 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.
4        UNITED STATES V . HERNANDEZ-ESTRADA

                          OPINION

HURWITZ, Circuit Judge:

    The question in this appeal is whether the United States
District Court for the Southern District of California violated
the Jury Selection and Service Act of 1968 (“JSSA”) or the
Constitution in compiling its 2009 master jury wheel.
Although the Southern District departed from the
requirements of the JSSA in several respects, we find no
reversible error in the underlying conviction.

                               I.

    Salvador Hernandez-Estrada was indicted for being a
deported alien found in the United States in violation of
8 U.S.C. § 1326. Hernandez filed a motion to dismiss the
indictment, arguing that the Southern District violated the
JSSA and the Fifth and Sixth Amendments by using a juror
source list consisting only of registered voters. He argued
that the list underrepresented African-Americans and
Hispanics. Hernandez also alleged that the Southern District
violated the JSSA by (1) improperly disqualifying jurors for
having insufficient English-language abilities based on their
answers on the juror questionnaire; (2) improperly
disqualifying jurors whose levels of English-language
abilities were unclear; (3) failing to return questionnaires that
omitted information on race and/or ethnicity; and (4) failing
to keep jury representativeness statistics.

    In response, the Government conceded that the Southern
District had violated the JSSA, but disputed that any of the
violations were substantial enough to warrant relief. See
28 U.S.C. § 1867(a) (providing for relief only for a
         UNITED STATES V . HERNANDEZ-ESTRADA                 5

“substantial failure to comply” with the JSSA). The
Government also disputed that the Southern District had
violated the Constitution.

    The district court denied Hernandez’s motion to dismiss,
finding no constitutional violation and that any JSSA
violations were technical, not substantial, and so did not
warrant dismissal.        The district court nevertheless
recommended that the Southern District make significant
changes to its jury selection practices. Hernandez was
convicted as charged.

    Hernandez’s appeal challenges only the denial of the
motion to dismiss. “We review independently and non-
deferentially a challenge to the composition of grand and petit
juries,” including challenges under the JSSA. United States
v. Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

                              II.

                              A.

    Ordinarily, we would consider statutory claims before
reaching constitutional arguments. See Califano v. Yamasaki,
442 U.S. 682, 692 (1979).           But here Hernandez’s
constitutional arguments are intertwined with his JSSA
claims. The JSSA contains a fair cross section guarantee,
28 U.S.C. § 1861, which is coextensive with the fair cross
section requirement of the Sixth Amendment. United States
v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985). Accordingly,
it makes more sense to address Hernandez’s constitutional
claims first.
6        UNITED STATES V . HERNANDEZ-ESTRADA

                               1.

    The JSSA provides that prospective jurors “shall be
selected from the voter registration lists or the lists of actual
voters of the political subdivisions within the district or
division.” 28 U.S.C. § 1863(b)(2). Consistent with this
requirement, the Southern District selects prospective jurors
at random from the list of registered voters in the district.
The JSSA further provides, however, that districts “shall
prescribe some other source or sources of names in addition
to voter lists where necessary to” ensure a fair cross section,
afford all citizens the opportunity to be considered for jury
duty, and ensure that individuals are not excluded on the basis
of “race, color, religion, sex, national origin, or economic
status.” 28 U.S.C. §§ 1861, 1862, 1863(b)(2). The Southern
District does not supplement its source list. Hernandez
argues that its failure to do so violates the Fifth and Sixth
Amendments.

   “The test for a constitutionally selected jury is the same,
whether challenged under the Sixth Amendment of the
Constitution or under the Jury Selection and Service Act.”
Miller, 771 F.2d at 1227.

        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
        c o m m u n i t y; a n d ( 3 ) t h a t t h i s
        underrepresentation is due to systematic
           UNITED STATES V . HERNANDEZ-ESTRADA                            7

         exclusion of the group in the jury-selection
         process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Hispanics and
African-Americans are each distinctive groups under the first
prong of this test. United States v. Cannady, 54 F.3d 544,
547 (9th Cir. 1995).

    “The second prong of the Duren test requires proof,
typically 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). In analyzing the
second prong, we use the absolute disparity test, which
requires us to measure underrepresentation “by taking the
percentage of the group at issue in the total population and
subtracting from it the percentage of that group that is
represented on the master jury wheel.” Sanchez-Lopez,
879 F.2d at 547; see also United States v. Rodriguez-Lara,
421 F.3d 932, 942–943 (9th Cir. 2005) (re-affirming our
commitment to the absolute disparity test); Berghuis v. Smith,
130 S. Ct. 1382, 1393–94 (2010) (neither requiring nor
prohibiting the use of any particular test in addressing claims
of underrepresentation).1 Although we have never drawn an


  1
    B ecause our precedents require use of the absolute disparity test, we
have no occasion today to consider other methodologies to analyze the
representativeness of the Southern District wheel. The difficulty with use
of the absolute disparity test in dealing with small populations was
recognized in Berghuis, 130 S. Ct. at 1393. But, as the Court noted in
declining to dictate the use of any particular methodology, “[e]ach test is
imperfect.” Id. For example, other courts have questioned the utility of
the standard deviation test. 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
8          UNITED STATES V . HERNANDEZ-ESTRADA

exact line, we have held that a disparity of 7.7% is acceptable.
Rodriguez-Lara, 421 F.3d at 943–44.

   We “must rely on the statistical data that best
approximates the percentage of jury-eligible [members of the
group] in the district.” United States v. Torres-Hernandez,
447 F.3d 699, 704 (9th Cir. 2006). In 2009, 22.5% of the
Southern District’s citizen population 18 and over was
Hispanic and 5.2% was African-American.

    We compare those percentages to the percentages of
Hispanics and African-Americans in the wheel. Sanchez-
Lopez, 879 F.2d at 547. In determining the percentage of
Hispanics in the jury wheel we exclude those who did not
identify their ethnicity on the questionnaire; and in
determining the percentage of African-Americans we exclude
those who did not identify their race. Rodriguez-Lara,
421 F.3d at 944 n.11. Excluding these individuals, Hispanics
made up 24.6% of the wheel and African-Americans made up
3.5%. Thus, Hispanics were overrepresented by 2.1% and
African-Americans were underrepresented by 1.7%. Since
these percentages do not begin to approach 7.7%
underrepresentation, Hernandez’s Sixth Amendment claim
fails.

    Hernandez urges that we instead include in our
calculations individuals who failed to identify their race


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.”); see also Berghuis, 130 S. Ct.
at 1393 (noting that “no court . . . has accepted [a standard deviation
analysis] alone as determinative in Sixth Amendment challenges to jury
selection systems.” (quoting Rioux, 97 F.3d at 655) (brackets in original)).
         UNITED STATES V . HERNANDEZ-ESTRADA                 9

and/or ethnicity. As an initial matter, there is no way to know
that those who failed to identify their race or ethnicity were
not members of a minority group—after all, they did not
reveal their race or ethnicity. But even if we included them,
Hernandez’s claim still fails. There were 40,743 persons in
the qualified jury wheel, including non-responders to the race
and/or ethnicity questions. Of these, 1,257 identified
themselves as African-American and 6,625 as Hispanic.
Thus, even if we assume that there was not a single African-
American or Hispanic among the non-responders, African-
Americans constituted 3.1% and Hispanics 16.3% of the
qualified jury wheel. Using these numbers, African-
Americans were underrepresented by 2.1% and Hispanics by
6.2%. Neither clears the 7.7% threshold.

                              2.

    To establish a violation of the equal protection guarantee
of the Fifth Amendment, a defendant must show not only
substantial underrepresentation of a protected group but also
“discriminatory intent.” Esquivel, 88 F.3d at 725 (citing
Castaneda v. Partida, 430 U.S. 482, 494 (1977)). Even
assuming that Hernandez could prove substantial
underrepresentation, he has neither alleged nor shown
discriminatory intent, so his Fifth Amendment claim also
fails.

                             III.

    Because our rejection of Hernandez’s constitutional
claims dooms his fair cross section claim under the JSSA,
Miller, 771 F.2d at 1227, we now turn to his remaining
statutory claims.
10       UNITED STATES V . HERNANDEZ-ESTRADA

                             A.

    Congress enacted the JSSA as a response to concerns that
racial discrimination frequently infected the jury selection
process. See Esquivel, 88 F.3d at 725. In order to combat
such discrimination, the JSSA prescribes a variety of
procedures in compiling lists of prospective jurors. See
28 U.S.C. §§ 1861–69. “Congress, recognizing that there
would undoubtedly be error in the jury selection process that
should not result in the dismissal of an indictment, left room
for harmless error by providing that dismissal should lie only
when there was a substantial failure to comply with the Act.”
United States v. Evans, 526 F.2d 701, 705 (5th Cir. 1976).
Thus, we will only dismiss Hernandez’s indictment if he
shows a “substantial” violation of the JSSA. 28 U.S.C.
§ 1867(a).

    “Technical violations are insubstantial where they do not
frustrate the Act’s goals.” United States v. Nelson, 718 F.2d
315, 318 (9th Cir. 1983). Those goals are “‘random selection
of juror names from voter lists’” and “‘determination of juror
disqualifications, excuses, exemptions, and exclusions on the
basis of objective criteria only.’” United States v. Goodlow,
597 F.2d 159, 162 (9th Cir. 1979) (quoting H.R. Rep. No. 90-
1076, at 2 (1968), reprinted in 1968 U.S.C.C.A.N. 1792,
1793).

                             B.

    Resolution of two of Hernandez’s JSSA claims is
straightforward. First, Hernandez argues that the Southern
District failed to regularly complete form AO-12, which must
be submitted to the Administrative Office of the United States
         UNITED STATES V . HERNANDEZ-ESTRADA               11

Courts every two years as the master jury wheel is refilled.
See 28 U.S.C. § 1863(a).

    The Southern District has been derelict in completing the
AO-12s on time. For example, the AO-12s for the 1999,
2001, and 2003 wheels were all completed in 2004 and the
AO-12s for the 2005 and 2007 wheels were completed in
November 2008. This timing seems to be related to the filing
of cases raising issues similar to those here. See Motion to
Dismiss, United States v. Martinez-Orosco, No. 3:03-cr-
02601-JAH (S.D. Cal. Oct. 8, 2004), ECF No. 47; Motion to
Dismiss, United States v. Garcia-Arellano, No. 3:08-cr-
02876-BTM (S.D. Cal. Nov. 7, 2008), ECF No. 21.

    Nonetheless, by the time this litigation commenced
Hernandez had access to all AO-12s dating back to 1999,
including the AO-12 for the 2009 wheel, from which his
grand and petit juries were selected.          Under these
circumstances, the Southern District’s past failures to
complete these forms on time did not interfere with the goals
of the JSSA.

    Hernandez also claims that the Southern District clerk’s
office violated the JSSA by disqualifying approximately
twelve Hispanics and six Asian-Americans because of doubts
about their English language abilities. When asked on the
questionnaire whether they “read, write, speak and
understand the English language,” these individuals answered
“Yes.” Perhaps inconsistently, however, they expressed
doubts about their English language abilities elsewhere on the
questionnaire.

   The clerk’s office appears to have disqualified any
prospective juror who expressed doubt anywhere in the
12       UNITED STATES V . HERNANDEZ-ESTRADA

questionnaire about English language abilities. This practice
is troublesome. Although the clerk may disqualify jurors
under the supervision of the court, 28 U.S.C. § 1865(a), these
disqualifications appear to present precisely the kind of
questionable determinations that should ultimately be made
by a judicial officer. See S.D. Cal. Civ. R. 83.10(c)(5)
(“Questionable requests for being excused or other status
determinations must be directed to the court.”).

    Nevertheless, “[w]hile some technical errors were made,
the fact that clerks, rather than a judge, made these
determinations does not necessitate reversal.”           Evans,
526 F.2d at 706. We deal here only with about 18 jurors, a
tiny fraction of the 40,743 in the qualified wheel. See United
States v. Bearden, 659 F.2d 590, 606–07 (5th Cir. 1981)
(finding erroneous dismissal of 495 prospective jurors
insubstantial because they represented a small fraction of the
total jury pool and the clerk’s office did not use any
subjective or discriminatory criteria). There is no indication
that the clerk’s office used any subjective criteria; it simply
dismissed any juror who expressed doubts about English
language ability. See Goodlow, 597 F.2d at 161–62 (finding
no substantial violation where men with child custody were
automatically excluded from jury service without a
determination of hardship).

    The Southern District Clerk’s Office should not
automatically disqualify individuals who express doubt about
their English skills. Nor should it put off preparing AO-12s
until litigation is filed. The district should take steps to
remedy both of these issues, but neither merits relief in this
case.
          UNITED STATES V . HERNANDEZ-ESTRADA                   13

                                C.

    Hernandez’s other claims are more substantive. Before
1968, prospective jurors were disqualified if “unable to read,
write, speak, and understand the English language.”
28 U.S.C. § 1861 (1957). The JSSA amended that standard,
and now provides that a prospective juror should be
disqualified only if he “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 if “unable to speak the English language.” 28 U.S.C.
§ 1865(b)(2), (3).

    Question 4 of the Southern District questionnaire asks,
consistent with the old statutory standard, whether jurors
“read, write, speak and understand the English language.” In
assembling the 2009 wheel, the clerk’s office disqualified all
prospective jurors who answered “no” to that question. The
Government concedes that the dismissal of prospective jurors
based solely on their answers to this question violated the
JSSA but argues it is not a substantial violation.

     Hernandez bears the burden “to present facts constituting
a substantial violation.” Nelson, 718 F.2d at 319. He argues
that because “Congress deliberately excised a prejudice
component” from the JSSA, United States v. Okiyama,
521 F.2d 601, 604 (9th Cir. 1975), he does not have to show
that jurors were incorrectly disqualified. Hernandez is wrong.
He still must prove that the violation was substantial; that is,
it interfered with the key goals of the JSSA: randomness and
objectivity. Goodlow, 597 F.2d at 162.

   “For wrongful exclusions, determining whether there has
been a substantial violation has both quantitative and
14       UNITED STATES V . HERNANDEZ-ESTRADA

qualitative aspects.” Bearden, 659 F.2d at 607. The
qualitative aspect focuses on “whether there has been a
frustration of the Act’s underlying principle of exclusions on
the basis of objective criteria only.” Id. Quantitatively, a
violation that does not frustrate the Act’s objectivity principle
must result in a significant number of wrongful exclusions
before it will be deemed substantial. Id.

    There was no frustration of the JSSA’s objectivity
principle here. Indeed, it is hard to imagine any more
objective criterion than the one used here. All prospective
jurors who answered “no” to Question 4 were disqualified;
the clerk’s office exercised no discretion. See United States
v. Carmichael, 560 F.3d 1270, 1278 (11th Cir. 2009).

    Hernandez must therefore show that the improper
wording of Question 4 resulted in a significant number of
wrongful exclusions. Hernandez notes that of the 12,250
Hispanics who returned questionnaires, 1,420 were
disqualified solely because they answered “no” to Question
4. But even if we assume that all 1,420 prospective jurors
were wrongfully disqualified, that number does not establish
a substantial violation when viewed, as it must be, in the
context of the entire jury pool.

    In Bearden, the Fifth Circuit found a violation
insubstantial when it resulted in the wrongful exclusion of
“only 1.2% of those screened” and “1.6% of those placed on
the qualified wheels.” 659 F.2d at 607. Here, the 1,420
jurors in question represent 2.0% of those who returned
questionnaires and 3.5% of the qualified wheel. Although
higher than the percentages held insubstantial in Bearden,
these figures do not establish a substantial violation. Cf.
Okiyama, 521 F.2d at 603–04 (finding violation substantial
         UNITED STATES V . HERNANDEZ-ESTRADA               15

when 14 of 23 grand jurors had submitted questionnaires
containing “unanswered questions, ambiguous answers, and
an indication of little knowledge of English”); United States
v. Hill, 480 F. Supp. 1223 (S.D. Fla. 1979) (finding violation
substantial when it impacted 40.3% of the jury pool).

    Hernandez also notes that of those answering “no” to
Question 4, 69.7% were Hispanic, and that the 1,420
Hispanic jurors excluded solely on the basis of their answers
to Question 4 make up 25.2% of the 5,625 Hispanic jurors
excluded for any reason. However, these statistics do not
relate to the randomness and objectivity goals of the JSSA;
they relate to the Act’s fair-cross-section goal. As explained
earlier, Hernandez has not established a substantial violation
of the JSSA based on frustration of the Act’s fair-cross-
section goal. Notwithstanding any wrongful exclusions
produced by the improper wording of Question 4, Hispanics
are not substantially underrepresented in the qualified jury
pool (and may even be slightly overrepresented). See supra
at 8–9.

    Simply because Hernandez has failed to make a showing
that this violation is substantial does not mean a future
defendant will also fail. The Southern District can and should
remedy this problem. Asking Question 4 in its current form
is not itself a violation of the JSSA, but dismissing
prospective jurors solely because they answer “no” to that
question is. Thus, although changing the language of the
question is likely the easiest and most effective way to
remedy this violation, it may not be the only way. We leave
remediation to the district, but emphasize that change is
necessary. And we caution other districts to evaluate their
own questionnaires, as this problem appears not to be unique
to the Southern District.
16       UNITED STATES V . HERNANDEZ-ESTRADA

                              D.

    Finally, Hernandez alleges that the Southern District’s
failure to return questionnaires to prospective jurors who
failed to answer the questions on race and/or ethnicity
violates 28 U.S.C. § 1864(a). That section states:

       In any case in which it appears that there is an
       omission, ambiguity, or error in a form, 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.

Id.

    Even assuming that § 1864(a) requires that every
questionnaire with any omission be returned, Hernandez has
not demonstrated that the Southern District substantially
departed from the requirements of the JSSA. Section 1864(a)
is plainly designed to serve the JSSA’s goals of assuring that
juries are “selected at random from a fair cross section of the
community,” 28 U.S.C. § 1861, and preventing
discrimination in the selection process, 28 U.S.C. § 1862.

    The representativeness of the 2009 wheel makes clear that
neither goal was compromised here. Even if we assume that
each non-responder was neither Hispanic nor African-
American, the jury wheel nonetheless was fairly
representative of the district. Moreover, no prospective juror
was excluded for failure to respond to these questions, so
there can be no contention that the district thereby used
         UNITED STATES V . HERNANDEZ-ESTRADA                 17

subjective criteria in compiling the wheel. See United States
v. Marcano, 508 F. Supp. 462, 468 (D.P.R. 1980).

     Nonetheless, the Southern District may not be so lucky in
the future. The percentages of those in the qualified wheel
who did not answer the race and ethnicity questions—11.56%
and 33.81% respectively—are significant. If they remain so,
it is not hard to imagine that in future years a court may be
unable to conclude that the race or ethnicity of the non-
responders could not have affected the legality of the
resulting wheel.

    The district must take appropriate steps to increase the
response rate to these two questions. While we leave to the
district how exactly to accomplish that goal, we note that the
district court suggested three potential remedies, all of which
deserve careful consideration.

    First, the district court noted that each questionnaire
informed jurors that federal law required them to answer the
questions on race and ethnicity to help prevent discrimination
and that their answers would not affect their eligibility for
jury service. But that information was in small print on the
back of the questionnaire. The district court recommended
moving that instruction to the front. Second, the district court
recommended reversing the order of the race and ethnicity
questions so that the ethnicity question would come first.
Many jurors might not answer the ethnicity question when it
follows the race question because they feel that doing so is
unnecessary or redundant. After all, the omission rate for the
ethnicity question far exceeded that for the race question.

    Finally, the district court noted that some districts permit
online submission of questionnaires. In such districts, the
18       UNITED STATES V . HERNANDEZ-ESTRADA

questionnaire cannot be submitted online without completing
the questions at issue here. The district should consider these
options, as well as any others that might increase the response
rate.

                              IV.

    Despite our conclusion that no reversible error exists here,
we caution the Southern District (and others) to take note of
the statutory violations we have identified and amend its
practices in the future. For now, because no JSSA violation
warrants relief and there was no constitutional violation, we
affirm Hernandez’s conviction and sentence.

     AFFIRMED.


Chief Judge KOZINSKI, with whom Judge WATFORD
joins, concurring:

    I join Judge Hurwitz’s opinion (except footnote one)
because it faithfully applies the law of our circuit. See United
States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir. 2005).
But I do so without enthusiasm because the rule we are bound
to apply is clearly wrong. It makes no sense to measure
disparity for fair cross section purposes by looking at absolute
disparity, and accept up to 7.7 percent of the total jury pool as
a permissible deviation. See United States v. Suttiswad,
696 F.2d 645, 649 (9th Cir. 1982) (holding that 7.7 percent
absolute disparity is acceptable). The absurdity of this
number is brought home by observing that a group that is less
than 7.7 percent of the total population can never be
underrepresented, no matter how far the jury pool percentage
         UNITED STATES V . HERNANDEZ-ESTRADA                19

deviates from that in the total population. See Rodriguez-
Lara, 421 F.3d at 943 n.10.

    This anomaly disappears for larger groups. A group that
is 75 percent of the total population could register a
cognizable disparity if it were only 67 percent of the jury
pool, while a group that is 7.5 percent could never register a
disparity, even if entirely absent from the pool. I have a hard
time accepting a rule that favors larger groups and ignores
smaller groups altogether.

    Our cases have referred to the “main alternative” to
absolute disparity as “comparative disparity.” Id. We
rejected that approach because we thought it was unworkable
with small numbers: “[I]f Hispanics are 2% of the
community and 1% of the jury pool, the comparative
disparity is 50%, but for every 100 jurors, there is only one
fewer Hispanic than would be proportional.” Id.; see also
United States v. Sanchez-Lopez, 879 F.2d 541, 547–48 (9th
Cir. 1989). But we’re not dealing here with a hundred
people; we’re dealing with a jury pool of over 40,000. For a
group that size, there are statistical methods that can easily
tell us whether a sub-group that is 5.2 percent of the
population (blacks in the Southern District) is
underrepresented if it makes up only 3.5 percent of the jury
pool.

    In the equal protection context, the Supreme Court has
used “standard deviation analysis,” see, e.g., Castaneda v.
Partida, 430 U.S. 482, 496 n.17 (1977), which “seeks to
determine the probability that the disparity between a group’s
jury-eligible population and the group’s percentage in the
qualified jury pool is attributable to random chance,”
Berghuis v. Smith, 130 S. Ct. 1382, 1390 n.1 (2010). More
20       UNITED STATES V . HERNANDEZ-ESTRADA

than two or three standard deviations means that “the
hypothesis that the jury drawing was random would be
suspect to a social scientist.” Castaneda, 430 U.S. at 496
n.17. Doing some quick math, I calculate that the disparity
between 5.2 percent and 3.5 percent in this case is more than
14 standard deviations. See id. (detailing the formula). So
there’s cause to worry.

    I’m not sure whether standard deviation analysis is
appropriate here, but I suspect that a statistician would laugh
at our current methodology. As a three-judge panel, we’re
not free to depart from Rodriguez-Lara, but an en banc court
could, and perhaps should, take a fresh look at the issue.
