                                                   130 Nev., Advance Opinion 54
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                SHAFIQ ARMED AFZALI,                                  No. 54019
                Appellant,
                  vs.                                                            FILED
                THE STATE OF NEVADA,
                Respondent.
                                                                                  MAY 2 9 2014
                                                                              TRACE K. LINDEMAN
                                                                            CLE• SU'REM •
                                                                           BY           L AP .111....
                                                                                CHIEF    rt   CLERK

                            Appeal from a judgment of conviction, pursuant to -a jury
                verdict, of 11 counts of lewdness with a child, 15 counts of sexual assault
                of a child under 14 years of age, 2 counts of first-degree kidnapping, 1
                count of second-degree kidnapping, 3 counts of battery with intent to
                commit a crime, 3 counts of using a minor in the production of
                pornography, and 22 counts of possession of child pornography. Eighth
                Judicial District Court, Clark County; James M. Bixler, Judge.
                           Remanded.


                Philip J Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public
                Defender, Clark County,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                Attorney, and Parker P. Brooks, Deputy District Attorney, Clark County,
                for Respondent.




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                  BEFORE THE COURT EN BANC.


                                                    OPINION
                  By the Court, HARDESTY, J.:
                              Appellant Shafiq Ahmed Afzali asserts that the district court
                  violated his constitutional rights by obstructing his ability to challenge the
                  racial composition of the three grand juries that indicted him.' Prior to
                  his trial, Afzali requested information that would identify the racial
                  composition of the three separate grand juries that indicted him, and the
                  100-person venires from which the grand jurors were selected. The
                  district court denied him the requested information.
                              Afzali argues that he had the right to challenge the grand jury
                  selection process under either the Equal Protection or the Due Process
                  Clauses of the United States Constitution, but that he was unable to
                  determine whether he had a viable challenge to the racial composition of
                  the three grand juries that indicted him because the court failed to provide
                  the information requested.
                              We conclude that Afzali has a right to the information he
                  requested. Without this information, Afzali's ability to show a potential
                  violation of his constitutional right to a grand jury drawn from a fair cross-
                  section of the community is limited. Therefore, we conclude that a limited
                  remand is necessary for the district court to conduct further proceedings
                  consistent with this opinion.


                        lAfzali raises a number of additional issues on appeal. However,
                  because we determine that a limited remand is necessary, we do not
                  address those issues at this time.



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                                   FACTS AND PROCEDURAL HISTORY
                              In July 2007, Afzali was charged by indictment with 17 felony
                  counts regarding crimes of a sexual nature against 3 children. He was
                  then charged by a superseding indictment with 42 felony counts regarding
                  crimes of a sexual nature based on his acts against the 3 child victims and
                  the 25 images of child pornography he possessed. He was later charged by
                  a final second superseding indictment with 63 felony counts regarding
                  crimes of a sexual nature.
                              In October 2007, Afzali filed a motion requesting information
                  on the selection process for the grand jury, the racial composition of the
                  three grand juries that indicted him, and the racial composition of the
                  entire 100-person venires from which those grand jurors were chosen. He
                  stated that his request was being made to evaluate whether he had
                  grounds to bring an equal protection or due process challenge to the make-
                  up of the three grand juries or the grand jury selection process.
                              The district court held two hearings on the motion. During
                  the first hearing, Afzali's counsel stated that she was concerned about the
                  grand jury selection process and the ethnic background of the grand jury.
                  The district court explained that it had no such information, but would
                  inquire of the then-sitting chief judge about the procedure for obtaining
                  the information Afzali was requesting. During the second hearing, the
                  district court provided Afzali with information on the grand jury selection
                  process; however, it explained that race information did not exist. It also
                  explained that the records of all potential grand jurors were shredded,




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                except for the records of those 50 potential grand jurors selected by the
                judges from the 100-person poo1. 2
                            In November 2007, the Eighth Judicial District Court
                Administration (Eighth District) filed a motion to quash a subpoena duces
                tecum served on the jury commissioner by Afzali's counsel. The subpoena
                sought the names and contact information for the 100-person venires for
                each of the three grand juries that indicted Afzali. The next month the
                district court conducted hearings on the Eighth District's motion to quash.
                Ultimately, the district court concluded that the Eighth District handled
                the information Afzali was requesting, not the jury commissioner; the
                personal information of the 50 potential grand jurors was destroyed but
                their contact information was preserved; and Afzali was "entitled to it."
                The district court granted the motion to quash as to the jury commissioner
                but denied it as to the Eighth District because only the latter had access to
                the information requested.
                            In January 2008, the district court conducted a hearing on the
                disclosure of the grand jury contact information. Afzali's counsel asserted



                      2Under NRS 6.110, the selection of the grand jury begins when the
                clerk of the court solicits 500 qualified persons at random and mails a
                questionnaire to those selected. The names of the first 100 persons who
                return the completed questionnaire to the clerk are submitted to the
                district court judges for that judicial district. NRS 6.110(1). The district
                court judges then select one name from the list until 50 persons have been
                selected, at which time the clerk issues a venire. NRS 6.110(2). Finally,
                the presiding district court judge selects 17 persons at random from the
                50-person group to serve as the grand jury. NRS 6.110(3).




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                that, if given the contact information for the 50 potential grand jurors, she
                would conduct an independent investigation on the racial composition of
                that group. The State objected, arguing that the disclosure would violate
                the secrecy of the grand jury. In a compromise, the district court asked
                Afzali's counsel to draft a questionnaire to be given to the 50 potential
                jurors. The district judge stated that he would then provide that
                questionnaire to the jury commissioner and the chief judge, who
                supervises the grand jury.
                             In March 2008, then-Chief Judge Hardcastle entered an order
                denying Afzali's request for the grand jury contact information. In
                denying Afzali's request, Judge Hardcastle reviewed Afzali's questionnaire
                and determined that "the proper procedure and notice to all interested
                parties to challenge the methods used to select the grand jury has not been
                followed." In June 2008, Afzali requested a hearing on Judge Hardcastle's
                order, arguing that he had followed the district court's direction in
                requesting the grand jury contact information. The district court did not
                grant the request, but admitted, "I don't know we know the procedure."
                             Afzali's trial took place in March 2009, and the jury ultimately
                found Afzali guilty as to counts 4-39, 42-54, and 56-63. The jury was hung
                as to counts 1-3, and found Afzali not guilty as to counts 40, 41, and 55.
                The district court entered its judgment of conviction in June 2009. This
                appeal followed. 3


                      3 In
                         November 2007, during the time Afzali was attempting to obtain
                the information on the grand jury, he also filed a petition for writ of
                habeas corpus. He argued that the district court's grand jury selection
                process violated his constitutional and statutory rights because the
                destruction of records concerning proposed grand jurors prevented him
                                                              continued on next page. . .
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                                               DISCUSSION
                             Afzali contends that without access to information about the
                racial composition of the three grand jury pools that indicted him, he has
                no way to know whether he has grounds to bring a challenge to the grand
                jury selection process under the Equal Protection Clause or the Due
                Process Clause. We agree.
                             The United States Supreme Court has held that "the criminal
                defendant's right to equal protection of the laws has been denied when he
                is indicted by a grand jury from which members of a racial group
                purposefully have been excluded." Vasquez v. Hillery, 474 U.S. 254, 262
                (1986). Furthermore, a person has the right to have the grand jury
                selected from a fair cross-section of the community. Adler v. State, 95 Nev.
                339, 347, 594 P.2d 725, 731 (1979) ("[I]t is settled that a grand jury must
                be drawn from a cross-section of the community, and there must be no
                systematic and purposeful exclusion of an identifiable class of persons.").
                             A federal statute was enacted in order to squarely address a
                defendant's right to obtain the information necessary to mount challenges
                to the composition of the grand jury in federal court.      See 28 U.S.C. §
                1867(f) (2006) (allowing parties who are preparing a motion to challenge
                the grand jury composition to have access to "Lae contents of records or


                . . . continued

                from obtaining the evidence necessary to support any challenge to the
                racial composition of the grand jury. The State filed a return, arguing
                that it was not part of the grand jury selection process and it thus could
                not address that process. In December 2008, prior to the filing of this
                appeal, the district court denied the petition.



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                 papers used by the jury commission or clerk in connection with the jury
                 selection process"). In analyzing this statute, the United States Supreme
                 Court stated that its purpose was to ensure grand juries were selected at
                 random from a fair cross-section and noted that "without inspection, a
                 party almost invariably would be unable to determine whether he has a
                 potentially meritorious jury challenge." Test v. United States, 420 U.S. 28,
                 30 (1975).
                              Certainly, Nevada is not bound by this federal statute, and it
                 does not have a state statute providing the right to inspect grand jury
                 records. Nevertheless, this court is bound by Supreme Court precedent,
                 and in Adler, we recognized that a defendant has a constitutional right to
                 a grand jury drawn from a fair cross-section of the community 95 Nev. at
                 347, 594 P.2d at 731. As the Supreme Court of Missouri noted when
                 considering this same issue, "[t]his cross-section requirement would be
                 without meaning if a defendant were denied all means of discovery in an
                 effort to assert that right." State ex rel. Garrett v. Saitz, 594 S.W.2d 606,
                 608 (Mo. 1980). Thus, we hold that Afzali is entitled to information
                 relating to the racial composition of the grand jury so that he may assess
                 whether he has a viable constitutional challenge.
                              Based on our holding, we conclude that a limited remand is
                 necessary in order for the district court to make available to Afzali the
                 information he requested. On remand, the district court should first
                 determine whether information is available on the racial composition of
                 the three grand juries that indicted Afzali and on the 100-person venires
                 from which those jurors were chosen, in whatever form and by whatever




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                means.4 We recognize that during the prior district court hearings
                surrounding Afzali's request, there was some confusion as to what
                information was actually retained by the district court regarding the
                grand jury pools involved in Afzali's indictments. The record
                demonstrates that at least the contact information for the 50 proposed
                grand jurors was available. Once the district court obtains the
                information, it should be provided to Afzali so that he can determine
                whether he has grounds for a fair cross-section challenge. If he
                determines that there is a viable challenge, he should make the challenge
                in the district court so that the court can resolve the matter and enter
                appropriate findings of facts and conclusions of law. This court can then
                review that decision, if challenged. If the district court is unable to
                provide the requested information after exploring all possible avenues,
                then the district court should enter appropriate findings and certify them
                to this court. This court will then determine whether the failure to
                provide this information requires reversal of the judgment of conviction.




                      4 For example, contact information may be available through payroll
                records pertaining to grand jurors who served, see NRS 6.150 (grand juror
                fees), or from the transcripts of the grand jury proceedings. Thus, if the
                racial composition of those jurors is not otherwise known, the district court
                may need to contact the grand jurors in order to obtain the necessary
                information.



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                The district court shall have 90 days to conduct the necessary proceedings
                required as a result of the limited remand of this matter.




                                                                 \C‘,.          J.
                                                           Hardesty


                We concur:




                                               C.J.
                Gibbons




                Pickering
                          Poem. ay            , J.




                Parraguirre




                Douglas


                                                      J.

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                Cherry
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                Saitta




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