                              No. 95-2180



United States of America,          *
                                   *
                  Appellee,        *
                                   *   Appeal from the United States
        v.                         *   District Court for the
                                   *   Southern District of Iowa.
Adrian Ward Rogers,                *
                                   *
                 Appellant.        *



                  Submitted:     November 14, 1995

                      Filed:     January 9, 1996


Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.




HEANEY, Circuit Judge.


     Adrian Rogers appeals his convictions by a jury of bank
robbery and the use of a firearm in the commission of a felony in
violation of 18 U.S.C. § 2113(a)-(b) and 18 U.S.C. § 924(c),
respectively. We affirm.


                            I.   BACKGROUND


     On November 19, 1993, Rogers was indicted by a grand jury for
the robbery of the United Security Savings Bank of Davenport, Iowa
and for the use of a firearm during the commission of the offense.
The district court scheduled Rogers' arraignment in the unusual
location of the courtroom of the Polk County Jail because Rogers
refused to submit to a strip-search, a prerequisite for
transportation to the federal courthouse.     At the arraignment,
Rogers' counsel was informed that Rogers would not leave his cell.
With the court's permission, Rogers' counsel went up to the cell to
inform Rogers of the purpose of the arraignment and the importance
of his presence; Rogers told his counsel to proceed without him.
Rogers' counsel returned to the courtroom and appeared on behalf of
his client. He did not request a continuance. The district court
found that Rogers had waived his right to be present and accepted
a "not guilty" plea entered on Rogers' behalf. No objection was
made to this procedure at the arraignment or at trial.


     After the jury had been impaneled and sworn for his trial,
Rogers filed a motion to quash the venire from which the jurors had
been drawn, challenging the constitutionality of Iowa's jury-
selection process. Rogers' motion was denied. On March 1, 1995,
the jury found Rogers guilty of both the robbery and the firearms
offense.   The court sentenced him to eighty and sixty months
imprisonment, respectively, to run consecutively and in addition to
a 240-month term imposed for a prior drug offense.       His total
sentence was 380-months imprisonment.


                         II.    DISCUSSION


     Rogers raises four issues on appeal: 1) the constitutionality
of Iowa's jury-selection plan, 2) his absence at his arraignment,
3) the identification procedures used at trial, and 4) the
sufficiency of the evidence for his convictions.


A.   Iowa Jury-Selection Plan


     Although we affirm Rogers' convictions, we do so reluctantly
with respect to Rogers' challenge of the Iowa jury-selection plan.
We recognize that we are bound by a previous decision by our court,
United States v. Garcia, 991 F.2d 489, 491 (8th Cir. 1993), which
held that the present Iowa plan withstands constitutional scrutiny.
Nevertheless, we feel compelled to discuss our concerns on this

                                  2
issue and to encourage the court en banc to reconsider Garcia on
this appeal.


     Rogers contends that the Iowa jury-selection plan violated his
Sixth Amendment right to be tried by a jury made up of a fair
cross-section of the community. In the Southern District of Iowa,
prospective jurors are selected from a master jury wheel, which is
filled every four years with names from voter registration lists or
lists of actual voters. At Rogers' trial, eighty-nine jurors were
summoned for jury selection; all eighty-nine were white. At oral
argument, Rogers' counsel urged our court to consider the
difficulty of convincing an African-American client that the system
that produced this jury pool is fair. Public confidence in the
fairness of the criminal justice system, with respect to community
participation in jury trials, is a concern the Supreme Court
explicitly recognized in Taylor v. Louisiana, 419 U.S. 522, 530
(1975).


     In Garcia, our court recognized that the Sixth Amendment
guarantees a criminal defendant a jury made up of a fair cross-
section of the community.    991 F.2d at 491 (citing Taylor v.
Louisiana, 419 U.S. at 530). For a defendant to establish a prima
facie  violation   of   the  constitutional  fair   cross-section
requirement, he 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.


Id. (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). While
recognizing African Americans constitute a distinctive group, id.
(citing Peters v. Kiff, 407 U.S. 493 (1972)), our court in Garcia
declined to consider whether African-American representation in

                                3
Iowa venires is fair and reasonable. Instead, it determined that
Garcia failed to demonstrate that the jury-selection process
systematically excluded African Americans from representation in
jury pools, and thus, he failed to establish a prima facie
violation. Id.

     In rejecting Garcia's argument of systematic exclusion, our
court introduced an element of intentional discrimination not
required by the Supreme Court. Our court stated:


     Garcia does not contend that Iowa law imposes any suspect
     voter registration qualifications or that the Plan is
     administered in a discriminatory manner. Garcia has not
     made any showing that African Americans or Hispanics are
     systematically excluded from the jury-selection process.
     A numerical disparity alone does not violate any of
     Garcia's rights and thus will not support a challenge to
     the Iowa Plan.


Id. at 492. In contrast, the Supreme Court, in Duren v. Missouri,
found a prima facie cross-section violation based largely on
numerical evidence:


     [Petitioner's] undisputed demonstration that a large
     discrepancy occurred not just occasionally but in every
     weekly venire for a period of nearly a year manifestly
     indicates that the cause of the underrepresentation was
     systematic--that is, inherent in the particular jury-
     selection process.


439 U.S. at 366. See also, United States v. Perez-Hernandez, 672
F.2d 1380, 1384 n.5 (11th Cir. 1982) ("In a fair cross section
analysis, purposeful discrimination is irrelevant since the
emphasis is purely on the structure of the jury venire.").


     In support of his constitutional challenge, Rogers presents
the same numerical evidence of underrepresentation as presented to
the court in Garcia and which our court declined to consider at
that time.    We now consider the evidence because we find it

                                4
probative of both the second and third Duren elements and because
it buttresses our request for reconsideration of Garcia. According
to the 1990 census, African Americans constituted 1.87% (31,656 out
of 1,485,443) of the general population in the Central Division of
the Southern District of Iowa. Yet only 1.29% (70 out of 5,424)
were included in the petit jury pool in the Central Division from
March 1987 through March 1992.


     Comparing the number of African Americans in the general
population with the number of those included in the jury pools,
Rogers provides two separate calculations for the court: 1) the
absolute disparity, which is the difference between the two figures
(1.87 and 1.29), or 0.579%, and 2) the comparative disparity,1
which is 30.96%.      Although utilizing the absolute disparity
calculation may seem intuitive, its result understates the
systematic representative deficiencies; the percentage disparity
can never exceed the percentage of African Americans in the
community.   Thus, in this case, even if African Americans were
excluded entirely from the lists of potential jurors, the maximum
disparity, under an absolute calculation, would be 1.87%. In the
case of total exclusion, however, the comparative disparity figure
would be 100%.      While we recognize both figures provide a
simplified statistical shorthand for a complex issue, the
comparative disparity calculation provides a more meaningful
measure of systematic impact vis-a-vis the "distinctive" group: it
calculates the representation of African Americans in jury pools
relative to the African-American community rather than relative to
the entire population. Contra United States v. Clifford, 640 F.2d


     1
      The comparative disparity calculation is as follows:

% of African Americans           % of African Americans
in the population        less    in the venires
______________________________________________________ X 100

                 % of African Americans
                 in the population

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150, 155 (8th Cir. 1981) (our court has declined to adopt the
comparative disparity concept as a better means of calculating
underrepresentation).   In this case, over a five-year period,
Iowa's jury-selection system underrepresented the African-American
community by over thirty percent.    In other words, a black was
thirty percent less likely to be called to serve on a jury than if
the composition of the source lists perfectly mirrored the
community.


     Interestingly, Rogers also states that if the jury-selection
plan in Iowa randomly selected jurors from the entire citizenry,
the probability of calling only 70 African Americans out of 5,424
potential jurors is less than 0.1%.      Although Rogers does not
provide the calculation for this figure, the government does not
dispute it and we take note of it as part of the record.        The
extremely low probability that the underrepresentation would have
occurred by chance alone provides futher evidence that the system
itself contributed to the lack of African-American participation in
the venire pools.


     Defendant's statistics establish, at a minimum, a prima facie
case that blacks are being systematically excluded from jury
service in the Southern District of Iowa, and that, unless some
justification is forthcoming, the system in place there does not
comport with our constitution.    See Duren, 439 U.S. at 367-68.
Thus, this case warrants reconsideration by our court.2


     2
      This author, writing for himself only, also encourages the
Iowa federal district court to consider modifying its jury
selection plan to increase minority representation in its jury
pools. A significant proportion of the defendants convicted in
the Iowa federal courts are black: as of November 4, 1995,
nearly 22% (164 of the 756 federal prisoners) convicted in Iowa
were black. Yet, Iowa's use of voter lists has consistently
produced jury pools that have few or no persons of color. The
government responds that the observed underrepresentation in Iowa
jury pools is likely due to the fact that African Americans vote
in a lower proportion than the rest of the population. It

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B.   Arraignment


       Rogers also argues that his absence during his arraignment
violated his Sixth Amendment right to be present at all criminal
proceedings against him. It is irrefutable that defendants have a
constitutional right to be present at every stage of a trial. See
Illinois v. Allen, 397 U.S. 337, 343 (1970) (citing Lewis v. United
States, 146 U.S. 370, 36 L.Ed. 1011, 13 S. Ct. 136 (1892)). More
specifically, Rule 43 of the Federal Rules of Criminal Procedure
requires a defendant's presence at arraignment.      In this case,
however, we consider Rogers' absence as a basis for reversal only
if it constituted plain error because Rogers failed to properly
preserve this issue in the court below.      See Fed. R. Crim. P.
52(b); see, e.g., United States v. Meeks, 857 F.2d 1201, 1203 (8th
Cir. 1988).




further argues that our court has not recognized such a
phenomenon as a constitutional violation. See Clifford, 640 F.2d
at 156 (citations omitted). Nevertheless, the legislation
governing the creation of jury-selection plans, the Jury
Selection and Service Act of 1968, Pub. L. No. 90-274, § 101, 82
Stat. 54 (codified as amended at 28 U.S.C. §§ 1861-1869),
requires plans to:

     prescribe some other source or sources of names in
     addition to voter lists where necessary to foster the
     policy and protect the rights secured by sections 1861,
     [fair cross-section requirement] and 1862 [anti-
     discrimination] of this title.
28 U.S.C. § 1863(b)(2) (1984). Several districts, including
Minnesota, supplement their jury lists with persons who have a
drivers license or a state identification card to increase
minority representation. The Iowa federal district courts should
similarly supplement its jury lists. See Cynthia A. Williams,
Note, Jury Source Representativeness and the Use of Voter
Registration Lists, 65 N.Y.U. L. Rev. 590 (1990) (arguing that
courts should order supplementation of jury lists under the Jury
Selection and Service Act to remedy underrepresentation of jury
lists).

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     Where a defendant has had sufficient notice of the charges
against him and an adequate opportunity to defend himself at trial,
this court has held that an arraignment is not required. United
States v. Cook, 972 F.2d 218 (8th Cir. 1992) (citing Garland v.
Washington, 232 U.S. 642, 645 (1914) and United States v. Coffman,
567 F.2d 960, 961 (10th Cir. 1977)), cert. denied, 113 S. Ct. 991
(1993). In this case, Rogers was provided notice. At the time of
his arraignment, Rogers had received two copies of the indictment;
furthermore, his counsel explained to him the charges he faced and
the importance of his appearance. Three months later, Rogers was
present during a six-day jury trial, which provided him with ample
opportunity to defend himself against the charges. Under Cook, a
formal arraignment would be excused in this case. Moreover, we
cannot say that Rogers' absence at his arraignment led to manifest
injustice. We therefore affirm Rogers' conviction on this ground.


C.   Identification Procedures


     Rogers further argues that the government's in-court
identification procedures were impermissibly suggestive and
unreliable because he was one of only a few African Americans
present in the courtroom. Rogers only explicitly challenges the
in-court identification by Shane Collins, a witness for the
government who had been unable to identify Rogers in a photo array
one week after the robbery yet pointed to Rogers in the courtroom.
To sustain his claim, Rogers must demonstrate both that the
government's questioning of Collins was impermissibly suggestive
and that it created a "`very substantial likelihood of irreparable
misidentification under the totality of the circumstances.'" See
United States v. Murdock, 928 F.2d 293, 297 (8th Cir. 1991)
(quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)), cert.
denied, 116 S. Ct. 260 (1995).


     On cross-examination, Rogers' counsel placed the reliability
and accuracy of the Collins' identification in context for the

                                 8
jury:   he highlighted that Collins had only seen the suspect
fleeing across his backyard for a few minutes and that he could not
identify Rogers in a photo lineup one week later. Rogers' counsel
also noted that, other than a few persons sitting in the spectator
gallery, Rogers was the only black in the courtroom. In addition
to Collins' testimony, at least two other government witnesses
identified Rogers, including Travis Hammers, Rogers' getaway
driver.   The additional testimony diminishes any likelihood of
irreparable misidentification in this case. We therefore conclude
that while Collins' identification of Rogers may have been tainted,
we cannot say that the procedures used in this case violated
Rogers' due process rights.


D.   Sufficiency of the Evidence


     Finally, Rogers challenges the sufficiency of the evidence for
his convictions. We can reverse the jury's determinations only if,
after review of the entire record in a light most favorable to the
government, a reasonable jury could not have found guilt beyond a
reasonable doubt. See, e.g., Cook, 972 F.2d at 221. There was
ample testimony at trial specifically connecting Rogers to the bank
robbery at issue. Moreover, bank personnel testified as to the use
of weapons during the robbery. Therefore, we do not upset the jury
verdicts in this case.


                         III.   CONCLUSION


     Accordingly, we affirm Rogers' convictions for bank robbery
and the use of a firearm during the offense. But, in so doing, we
encourage this court en banc to re-visit the issue of Iowa's jury-
selection plan and the Iowa federal district courts to reform their
jury plan to increase minority representation.


BEAM, Circuit Judge, concurring specially.


                                   9
     I concur in the result reached by the court and concur
specifically in Parts I, IIB, IIC, IID and III of the court's
opinion. I disagree with the contention that our opinion in United
States v. Garcia, 991 F.2d 489 (8th Cir. 1993) violates the holding
in Duren v. Missouri, 439 U.S. 357 (1979) or the Constitution. The
purported underinclusion of the "distinctive group" in venires
gathered under the Iowa jury selection plan results not from
systematic    exclusion   of   anyone   but    from   an   apparent
underparticipation in voter registration and other election
processes by the targeted classification.


     Judge Heaney extols the virtue of Minnesota's program of
supplementing the first stage venire assembly with names from
drivers license lists and, possibly, "state identification
card[s]," whatever this identification card list may amount to.
While there is no evidence in the record one way or another, the
reasons underlying voter apathy may also lead to disproportionate
automobile registrations and, thus, fewer drivers license
applications. In any event, the Motor Voter program in effect in
Iowa very likely makes use of a drivers license list a redundant
and unnecessary effort. See Iowa Code Ann. § 48A.18 (West Supp.
1995).


     Judge Heaney does not place the source of the state
identification cards he refers to. Unless the cards identify a
reasonably universal group of citizens, the existence of which does
not readily spring to mind, the suggestion would seem to run
contrary to the idea of equal opportunity for jury service
contemplated by Duren and the Constitution.


     A true copy.


         Attest:


              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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