US v. Nakai

No. 03-10485 (6-27-05). An ugly case from the Navajo Rez. Defendant and codefendants charged with brutal murders of two victims in a car-jacking/robbery. Issues on appeal concern the jury pool composition. The trial was moved from one division (where Indians made up 16+% of the pool) to another. The court sought to use the same jury list despite the switch, and called the prospective jurors, but a significant number didn't get the message. Of the 34 prospective jurors not contacted, 14 were Indian. The 9th found that there was no systematic violation of the Sixth Amendment, and that the record didn't support any disparate impact. The 9th also considered the use of a conspiracy/Pinkerton instruction in an aiding and abetting context. There was no con conspiracy charged. The 9th found error, but that it was harmless. The 9th did make it clear that "it is error to use a Pinkerton instruction in a case in which the indictment does not allege a conpsiracy."