                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-2844
                          ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

            Ruben Galvin Garcia, also known as Ruben Galvan Garcia

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                     for the District of North Dakota - Bismarck
                                    ____________

                             Submitted: October 19, 2016
                              Filed: December 30, 2016
                                   [Unpublished]
                                   ____________

Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
                             ____________

PER CURIAM.

       A jury convicted Ruben Galvin Garcia of one count of aiding and abetting
conspiracy to possess with intent to distribute and to distribute a controlled substance,
in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one count of distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1). Garcia appeals, arguing
that the district court1 should have allowed him to examine the list of potential jurors
and that the venire did not represent a fair cross section of the community. We
affirm.

      Garcia’s trial was held in Bismarck, North Dakota, then in the Southwestern
Division of the District of North Dakota. After the panel of potential jurors was
sworn and before trial began, Garcia’s counsel argued that the venire did not
represent a fair cross section of the community. Specifically, he argued:

       [W]e should have on this potential jury panel at least three Native
       Americans and with our two Indian reservations in this district[,] there
       are none. With this lack of minority [representation, it] concerns me that
       the clerk’s office has not drawn a fair cross section of the community for
       the jury panel . . . .

        The district court called as a witness the jury administrator for the United States
District Court in North Dakota. The administrator explained in detail the District’s
jury plan and testified that the pool of prospective jurors is randomly drawn from a
list of individuals who voted in the last presidential election. When asked whether
“we usually see at least one or two Native Americans on the potential jury panel,” the
administrator replied, “I would say not.” The district court overruled Garcia’s
objection and determined that the District’s “jury plan is racially neutral on its face.”
It concluded that “this panel has been selected in a manner consistent with our plan
[and] that there is no systematic exclusion of anyone based on race or other improper
consideration.”

      Garcia first argues that he should have been allowed to inspect the list of
potential jurors. A provision in the Jury Selection and Service Act, 28 U.S.C.


      1
       The Honorable Ralph R. Erickson, then Chief Judge, United States District
Court for the District of North Dakota.

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§ 1862(f), gives defendants “essentially an unqualified right to inspect jury lists.”
Test v. United States, 420 U.S. 28, 30 (1975) (per curiam). “To avail himself [or
herself] of [the] right of access to otherwise unpublic jury selection records, a litigant
need only allege that he [or she] is preparing a motion challenging the jury selection
procedures.” United States v. Stanko, 528 F.3d 581, 587 (8th Cir. 2008) (quoting
United States v. Alden, 776 F.2d 771, 773 (8th Cir. 1985)) (alteration in Alden).
Garcia did not ask to inspect the list of potential jurors, nor did he allege that he was
preparing a motion to challenge the jury selection procedures or otherwise indicate
to the district court that he sought the jury list. Garcia thus failed to avail himself of
the right to inspect the jury selection records, and the district court did not err in
failing to order sua sponte that those records be made available.

       Garcia argues that the jury panel did not represent a fair cross section of the
community. He claims that the jury selection process improperly excluded Native
Americans from the venire, in violation of his Sixth Amendment rights. To prevail
on this claim, Garcia must prove: “(1) Native Americans are a distinctive group in
the community; (2) their representation in his venire was not fair and reasonable in
relation to their representation in the community; and (3) their under-representation
resulted from their systematic exclusion from the jury-selection process.” United
States v. Morin, 338 F.3d 838, 843 (8th Cir. 2003). Even assuming that Garcia has
established the first two elements, he cannot show that Native Americans are
systematically excluded from the jury selection process in the District of North
Dakota. We have previously upheld North Dakota’s jury selection plan, which, as
mentioned above, draws its pools of prospective jurors randomly from lists of persons
who voted in the last presidential election. See United States v. Greatwalker, 356
F.3d 908, 911 (8th Cir. 2004) (per curiam); Morin, 338 F.3d at 843-44. We have said
that “[a]bsent proof that Native Americans, in particular, face obstacles to voter
registration in presidential elections, ethnic and racial disparities between the general
population and jury pools do not by themselves invalidate the use of voter registration
lists and cannot establish the systematic exclusion of allegedly under-represented

                                           -3-
groups.” Greatwalker, 356 F.3d at 911 (quoting Morin, 338 F.3d at 844). Garcia has
not attempted to establish that Native Americans faced obstacles to registering to vote
in the presidential election, and he thus has failed to show that Native Americans
were systematically excluded from the jury selection process.

       Garcia also argues that the composition of the jury violated his constitutional
right to equal protection. “In order to make out a prima facie case of an equal
protection violation in the composition of a jury, a defendant must show that an
identifiable, distinct class has been substantially under-represented in the source from
which jurors have been drawn over a significant period of time.” United States v.
Horne, 4 F.3d 579, 588 (8th Cir. 1993) (citing Castaneda v. Partida, 430 U.S. 482,
494 (1977)). Garcia argues that the jury administrator’s testimony that there were not
usually “at least one or two Native Americans on the potential jury panel” establishes
a systematic exclusion of Native Americans from venires. That testimony alone,
however, does not constitute a prima facie showing that Native Americans have been
substantially under-represented from the venires over a significant period of time.
Garcia has not presented evidence showing the number of Native Americans who live
in the Southwestern Division of the District of North Dakota or the number of Native
Americans who have served in its venires over time. He likewise has not shown a
difference between the percentage of Native Americans in the Division’s population
and the percentage of Native Americans in the Division’s venire. Accordingly, his
equal protection claim must fail. Compare Castaneda, 430 U.S. at 495 (holding that
the respondent’s showing “that the population of the county was 79.1% Mexican-
American, but that, over an 11-year period, only 39% of the persons summoned for
grand jury service were Mexican-American” established a prima facie case of
discrimination against Mexican-Americans in the county’s grand jury selection
process), with Horne, 4 F.3d at 588 (holding that a showing that the division’s venire
during a two-month period was 1.4% African-American and that the division’s
population was 2.9% African-American presented too slight a statistical deviation to



                                          -4-
establish a prima facie case of discrimination against African-Americans in the
division’s venire).

      The judgment is affirmed.
                     ______________________________




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