                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 OCT 3 1997
                              FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk
UNITED STATES OF AMERICA,                 )
                                          )
       Plaintiff-Appellee,                )
                                          )
v.                                        )        No. 97-8000
                                          )      (D.C. No. 96-CR-5)
DANIEL L. ORTIZ,                          )      (Dist. of Wyoming)
                                          )
       Defendant-Appellant.               )


                              ORDER AND JUDGMENT*


Before BRORBY, BARRETT, and MCKAY Circuit Judges.


       Daniel L. Ortiz (Ortiz), an enrolled member of the Northern Arapaho Tribe, appeals

his conviction and sentence for aggravated sexual assault.

                                       Background

       In the early morning hours of December 16, 1995, Lisa Lynn Maxon (Maxon)

provided Ortiz a ride to his home at 1563 Seventeen Mile Road, which is within the exterior

boundaries of the Wind River Indian Reservation in the State of Wyoming. When they

arrived at Ortiz’s trailer about 2:00 a.m., Ortiz’s friends were already there. Maxon, Ortiz



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of Tenth Cir. R. 36.3.
and his friends then remained at Ortiz’s trailer drinking, visiting, and smoking marijuana.

       Maxon testified that at approximately 3:30 or 3:45 a.m. she decided to leave, but when

she went outside she discovered one of her truck tires was flat. Ortiz said he could borrow

a jack for her in the morning and offered to let her sleep in his bed until then. Maxon

testified she awoke with Ortiz lying on top of her saying, “that’s why you’re out here is to

have sex with a real man.” Maxon then described how Ortiz anally assaulted her with a

wooden or metal object in the bathroom; vaginally and anally assaulted her with a wooden

plunger and a mop handle on the bed; and sexually assaulted her. Maxon testified she fled

when Ortiz passed out on top of her. At the urging of her partner and a rape counselor,

Maxon sought medical attention and reported the assault to authorities.

       In a search of Ortiz’s home, FBI agents seized a toilet plunger and a mop handle from

the bathroom, as well as a wooden drumstick from the kitchen. The FBI also found a pair

of white ladies panties behind the drapes on the floor of Ortiz’s bedroom.1

       On January 26, 1996, Ortiz was charged with knowingly causing and attempting to

cause Maxon to engage in a sexual act by using force against her, in violation of 18 U.S.C.

§§ 2241(a) and 1153. At Ortiz’s arraignment, the parties agreed to deoxyribonucleic acid

(DNA) testing of the three wooden objects seized from Ortiz’s trailer and to a continuance

of the trial until after testing was complete.



       1
              Maxon testified that Ortiz forcibly removed her panties during the initial
struggle on the bed and that she left without them.

                                                 -2-
       At trial, the government introduced evidence of the DNA analysis. Anjali Ranadive

(Ranadive), a molecular biologist/forensic scientist for Cellmark Diagnostics, testified as to

the DNA testing protocol, the actual physical procedures used to conduct the tests, and the

quality control techniques utilized to ensure accurate results. Ranadive specifically explained

how she analyzed samples taken from the end of a mop, the end of a plunger and the end of

a drumstick. She testified she found human DNA in the sample taken from the mop handle.2

She then explained the DNA could not have originated from Ortiz, but was consistent with

the blood sample obtained from Maxon. Thus, Ranadive testified Maxon could not be

excluded as the donor of the DNA found on the mop handle, but Ortiz could.

       Ranadive also testified about the statistical probabilities of an individual having the

same DNA profile as the sample taken from the mop handle. She stated this profile was

found once in every 5,700 people in the Hispanic population, once in every 15,000 people

in the African-American population, and once in every 29,000 people in the Caucasian

population. She explained these statistics demonstrate that this particular DNA profile is

rarer in Caucasians than in Hispanics and African-Americans. However, it does not identify

the individual DNA donor.

       On September 26, 1996, the jury found Ortiz guilty of aggravated sexual assault. On

December 10, 1996, the district court sentenced Ortiz to 160 months imprisonment and


       2
              Ranadive testified she also found human DNA in the sample taken from the
plunger, but she was unable to further amplify the genetic types or markers that are
needed for identification purposes.

                                             -3-
ordered him to make restitution in the amount of $ 5,474.15.

       On appeal, Ortiz contends: (1) American Indians were under-represented on the petit

jury venire in violation of his Fifth and Fourteenth Amendment right to equal protection, and

(2) the district court committed plain error by admitting Ranadive’s expert testimony.3

                                          Discussion

                                               I.

       Ortiz contends his Fifth and Fourteenth Amendment right to equal protection was

violated by the under-representation of American Indians on the petit jury venire. Ortiz

argues he was denied a jury which represented a fair cross-section of the community. This

argument is based on his allegations that the American Indian population of the district of

conviction is 0.71% compared to 18.48% in the county wherein he resided and where the acts

allegedly occurred.4

       The Jury Selection and Service Act of 1968 (“the Act”), 28 U.S.C. §§ 1861-1878,

       3
               Ortiz also raises an issue of ineffective assistance of counsel. However,
“[t]he rule in this circuit . . . is that claims of constitutionally ineffective counsel should
be brought on collateral review,” not on direct appeal. United States v. Galloway, 56
F.3d 1239, 1242 (10th Cir. 1995) (in banc). Hence, to avoid the necessity of addressing
the issue twice and to allow further development of the record, we decline to address
Ortiz’s ineffective assistance of counsel claim on direct appeal and dismiss without
prejudice in order to permit him to raise the same in his first petition on collateral review.
See id.
       4
               With these statistics, Ortiz raises some troubling questions about the
implementation of the Jury Selection and Service Act in Wyoming, which would merit
careful consideration if properly raised. However, as discussed hereinafter, Ortiz’s
failure to properly and timely raise the issue prevents our consideration of the issue on
direct review.

                                             -4-
“governs the selection of grand and petit juries in federal court, and ‘seeks to ensure that

potential grand and petit jurors are selected at random from a representative cross section of

the community and that all qualified citizens have the opportunity to be considered for

service.’” United States v. Contreras, 108 F.3d 1255, 1265 (10th Cir. 1997) (quoting United

States v. Bearden, 659 F.2d 590, 593 (5th Cir. 1981), cert. denied, 456 U.S. 936 (1982)),

petition for cert. filed, ___U.S.L.W. ___ (U.S. June 7, 1997) (No. 96-9286). See 28 U.S.C.

§ 1861. “No citizen shall be excluded from service as a grand or petit juror in the district

courts of the United States . . . on account of race, color, religion, sex, national origin, or

economic status.” 28 U.S.C. § 1862.

       The Act requires each United States District Court to devise and place into operation

a written plan for random selection of grand and petit jurors that shall be designed to achieve

the objectives of sections 1861 and 1862. 28 U.S.C. § 1863(a). The District Court for the

District of Wyoming had devised and placed into operation a plan at the time of Ortiz’s

conviction.

       Section 1867 provides “the exclusive means by which a person accused of a Federal

crime, . . . may challenge any jury on the ground that such jury was not selected in conformity

with the provisions of [the Act].” 28 U.S.C. § 1867(e). See United States v. Bedonie, 913

F.2d 782, 794 (10th Cir. 1990) (“Section 1867(e) ‘provides the exclusive means for a party

charged with a federal crime to challenge a jury.’”) (quoting United States v. Cooper, 733

F.2d 1360, 1366 (10th Cir.), cert. denied, 467 U.S. 1255 (1984)), cert. denied, 501 U.S. 1253


                                             -5-
(1991).

       Section 1867(a) requires a party challenging the jury selection process to make his

challenge by motion “before the voir dire examination begins, or within seven days after the

defendant discovered or could have discovered, by the exercise of diligence, the grounds

therefor, whichever is earlier.” 28 U.S.C. § 1867(a). The Act’s “procedural requirements

are designed to give the district court an opportunity to evaluate the alleged noncompliance

and to correct such noncompliance before precious judicial resources are invested in a trial.”

Contreras, 108 F.3d at 1266. “Strict compliance with these procedural requirements is

essential.” Id.

       Ortiz did not challenge the venire or the selection of the petit jury before the district

court, much less in a manner consistent with the procedural requirements of the Act. “‘If a

party fails to comply with the statutory procedures [of § 1867], a court may not hear the

claim.’” Bedonie, 913 F.2d at 974 (quoting United States v. Martinez-Nava, 838 F.2d 411,

413 (10th Cir. 1988)). See also Contreras, 108 F.3d at 1267-68 (defendant’s claim under the

Act precluded for failure to accompany the motion challenging the jury selection process

with a sworn affidavit as required by § 1867(d)); Cooper, 733 F.2d at 1366 (no indication

defendant complied with exclusive procedures provided for in § 1867). Thus, Ortiz is

procedurally barred from challenging the petit jury and we will not consider his claim




                                             -6-
further.5

       At oral argument, Ortiz’s counsel argued that we are required to conduct de novo

review of Ortiz’s claim because of its “constitutional magnitude,” even though Ortiz failed

to raise the issue in the district court or comply with the requirements of the Act. This is not

the case. The opinion relied upon, Duren v. Missouri, 439 U.S. 357 (1979), does not support

this contention. In Duren, the defendant objected on constitutional grounds to his petit jury

prior to trial, thus, preserving the issue for later consideration. Id. at 360. In contrast, Ortiz

failed to present the issue to the district court, much less present the issue prior to trial, as

required. To allow Ortiz to raise the issue of jury selection on appeal without having timely

and properly raised the issue in the district court would essentially give Ortiz “two bites at

the apple.” As the Court stated,

               If . . . time limits are followed, inquiry into an alleged defect may be
       concluded and, if necessary, cured before the court, the witnesses, and the
       parties have gone to the burden and expense of a trial. If defendants were
       allowed to flout . . . time limitations, on the other hand, there would be little
       incentive to comply with [the] terms when a successful attack might simply
       result in a new indictment prior to trial. Strong tactical considerations would
       militate in favor of delaying the raising of the claim in hopes of an acquittal,
       with the thought that if those hopes did not materialize, the claim could be
       used to upset an otherwise valid conviction at a time when reprosecution might
       well be difficult.



       5
               In addition, the government points out that if Ortiz believed a trial in
Cheyenne would have violated his constitutional right(s) by the exclusion of Indians from
his jury venire and/or panel, then Ortiz could have requested that his trial be held in the
Lander Division, which includes Fremont County and the Wind River Indian Reservation
where the alleged acts occurred. However, Ortiz did not avail himself of this opportunity.

                                              -7-
Davis v. United States, 411 U.S. 233, 241 (1973) (discussing defendant’s waiver of his

challenge to the grand jury pursuant to Federal Rule of Criminal Procedure 12(b)(2) for his

failure to raise the issue before trial).

                                                II.

       Ortiz asserts the district court erred in admitting the expert testimony regarding the

DNA evidence. Ortiz argues that the data relied upon by Ranadive in forming her opinions

and inferences violated Federal Rule of Evidence 703 because it was not reliable for the

purpose of determining or offering an opinion as to the identity of the person whose DNA

was found on the mop handle and that the evidence was offered in a manner which invaded

the province of the jury by improperly offering an opinion as to the credibility of the victim.

       Ordinarily, we review the district court’s decision to admit expert testimony for abuse

of discretion. United States v. Markum, 4 F.3d 891, 895 (10th Cir. 1993). However, where,

as here, the defendant failed to object to the testimony at trial, our review is for plain error

only. Id. See Fed. R. Crim. P. 52(b). We will not reverse for plain error “unless the error

‘seriously affect[s] the fairness, integrity or public reputation of [the] judicial proceeding[].’”

United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S.

1, 15 (1985)). Additionally, as a prerequisite to plain error review under Rule 52(b), we must

first determine that an “error” indeed was committed. United States v. Gomez, 67 F.3d 1515,

1520 (10th Cir. 1995), cert. denied, ___ U.S. ___ (1996).




                                               -8-
       After review of the record, we hold the district court did not err in admitting the expert

testimony regarding the DNA evidence. Federal Rule of Evidence 703 provides that “the

facts or data . . . upon which an expert bases an opinion or inference may be those perceived

by or made known to the expert at or before the hearing” and they need not be admissible in

evidence if of a type reasonably relied upon by experts in the particular field. Fed. R. Evid.

703. See Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991) (stating

three bases for expert opinion testimony under Rule 703).

       In this case, Ranadive relied on the evidence samples sent to her from the Wyoming

State Crime Lab to determine that the DNA found in the sample taken from the mop handle

could not have come from Ortiz and that it could have come from the victim, Maxon.

Ranadive did not testify to the identity of the individual whose DNA was found on the mop

handle. She testified as to the probability of finding someone with that specific DNA profile

in each of the three ethnic groups for which Cellmark Diagnostic keeps a database. See

United States v. Davis, 40 F.3d 1069, 1075 (10th Cir. 1994) (“[S]tatistical probabilities are

basic to DNA analysis and their use has been widely researched and discussed.”), cert.

denied, 514 U.S. 1029 (1995). Ortiz had ample opportunity to cross-examine Ranadive

regarding the samples, sample handling, and the statistical probabilities relied upon by her

and to argue to the jury about sample contamination and probabilities. Therefore, we hold

Ranadive relied on and based her opinion on the type of data reasonably relied upon by

experts in her field.


                                              -9-
       In addition, we hold that Ortiz’s argument that Ranadive’s testimony “improperly

vouched for the credibility of the victim” is without merit. A careful reading of the trial

testimony reveals no obvious or substantial errors in Ranadive’s testimony nor any

substantial errors, which may have seriously affected the fairness or integrity of the case, in

the prosecution’s use of Ranadive’s testimony in closing argument.

       For the foregoing reasons, we AFFIRM Ortiz’s conviction and sentence.

       AFFIRMED.
                                                          Entered for the Court:


                                                          James E. Barrett,
                                                          Senior United States
                                                          Circuit Judge




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