ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Jury selection for this criminal trial was conducted on June 14, 2013, from a venire of 70 potential jurors. Defendants Noe Machado-Erazo, Jose Martinez-Amaya, and Yester Ayala are charged with crimes associated with their alleged membership in the gang MS-13. MS-13 originated in Los Angeles but has roots and leadership in El Salvador. All three Defendants are Hispanic. At the end of jury selection, all three Defendants complained that the make-up of the venire violated their rights because there was not a single Hispanic person among the 70 persons questioned as potential jurors. Defendants filed a Memorandum of Law Challenging the Constitutionality of Jury Selection, Dkt. 373, on June 17, 2013, in which they identify three potential jurors with Hispanic surnames (three of 70, or 4.3% of the venire) from a Washington, D.C. population that, Defendants assert, is “9.5%” persons of “Hispanic or Latino Origin” as of 2011.
Defendants complain that the venire was unfair, Defs. Mem. at 1–2; that the government improperly struck one of the few persons with an Hispanic surname, id. at 2–3; and that the Court erred in notifying them of a clerical error and asking for identification of an additional alternate from among those properly on the jury, id. at 3–4.
The motion will be denied in all respects. It is without merit, contrary to the law, and without any basis in fact.
I. NATURE OF THE VENIRE
Taylor v. Louisiana, 419 U.S. 522 (1975), first held that “the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community.” Id. at 537; see also Duren v. Missouri, 439 U.S. 357, 364 (1979). Although “[d]efendants are not entitled to a jury of any particular composition . . . the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor, 419 U.S. at 538. The Jury Selection and Service Act (JSSA) codifies this right, stating that federal litigants entitled to a jury trial have “the right to grand and petit juries selected at random from a fair cross section of the community in the district or division where the court convenes.” 28 U.S.C. § 1861.
Defendants complain that there was an unconstitutional absence of sufficient persons of Hispanic origins in the entire venire and therefore it did not represent a fair cross section of Washington, D.C. See Defs. Mem. at 1–2. Duren v. Missouri, 439 U.S. 357 (1979), established a multi-factor test for determining whether a venire fails to offer a “fair cross section” as the JSSA requires:
[T]he defendant 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. at 364. There is no doubt that Hispanics form a distinctive group in this community, but Defendants offer no basis from which to conclude that the representation of Hispanics in venires in this Court is not fair and reasonable or that any underrepresentation is due to systematic exclusion of Hispanics. Instead, they blithely proclaim that these factors are self-evident. Not so.
The District Court for the District of Columbia operates its own jury wheel, separate from the jury wheel used by the D.C. Superior Court. The wheel is operated pursuant to applicable federal statutes. See generally 28 U.S.C. §§ 1863 (“Plan for random jury selection”) & 1864 (“Drawing of names from the master jury wheel; completion of juror qualification form”). Federal jurors’ names come from the licensed driver registration, voter registration, and taxpayer records in the District of Columbia. These names are combined into a master list, from which jurors are called by random selection. Once a juror has been called for duty, he or she is released from the wheel for two years. The jury wheel is totally updated no less often than every four years. In this case, the Court ordered a special panel because of the anticipated length of trial (initially, up to 3 months); this allowed the Jury Office to advise those who were summoned of the trial’s duration so that potential jurors could be excused before jury selection if circumstances prevented their attendance. Only U.S. citizens sit on federal juries. See 28 U.S.C. § 1865(b)(1) (listing characteristics disqualifying persons from jury service, including that the person “is not a citizen of the United States”). Having decided to seat 16 jurors because of the trial’s length, the Court asked for a venire of 70 potential jurors, of whom 50 reported in the morning and 20 in the afternoon. Jurors’ race and ethnicity are not identified until after a potential juror reports for jury selection and completes a questionnaire. Thus, it is not possible to identify race, ethnicity or other characteristics before the day of jury selection. The Court finds no flaw in this process that indicates it would result in a systemic underrepresentation of Hispanics or any other identifiable group in the community.
United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997), noted that “[u]nderrepresentation of a cognizable group in a single venire, without evidence of a greater pattern, is insufficient to establish the ‘systematic exclusion of the group’ required by Duren.” Id. at 1301. Defendants have shown no more here. Assuming that Hispanics constitute 9.5% of D.C.’s resident population, that number does not reveal the percentage of resident Hispanics who are U.S. citizens and registered drivers or registered voters or tax payers. The resident population of Hispanics also includes an unknown number of legal immigrants who have not become citizens and an unknown number of undocumented aliens. Thus, a bare-bones percentage of Hispanic residents is uninformative.
Further, Defendants acknowledge that they cannot demonstrate any systemic exclusion of Hispanics in the jury-selection process: “We do not have proper information on the number of jurors that were called for this venire only that 70 showed up . . . . Why did no, or so few, Hispanics show up for jury duty?” Defs. Mem. at 2. Answering their own question, Defendants proclaim that “[t]he failure to provide any meaningful method for enforcing the jury summons has amounted to a systematic under-inclusion of Hispanics on the jury venire.” Id. They offer nothing beyond rhetoric to support their statement, which is not enough to sustain a Taylor challenge. See United States v. Bryant, 523 F.3d 349, 361–62 (D.C. Cir. 2008) (finding defendant failed to show the “‘systemic exclusion’ . . . required by Duren” where defendant relied in large part on allegedly disproportionate number of African Americans in his own jury venire); see also 28 U.S.C. § 1867(d) (requiring a “sworn statement of facts which, if true, would constitute a substantial failure” to comply with cross-section requirement as threshold showing for opportunity to access, inter alia, “the testimony of the jury commission or clerk”).
Since rhetoric is not evidence and there is no evidence that Hispanics are not fairly represented on the jury wheel or that there is systemic underrepresentation of Hispanics in the venire, the Court concludes that Defendants’ motion is without merit. ...