OPINION & ORDER On August 6, 2020, a grand jury sitting in Central Islip returned an indictment charging defendant Claude Celestine with making false statements in a passport application, in violation of 18 U.S.C. §1542, and social security fraud, in violation of 42 U.S.C. §408(a)(7)(B). Presently before this court is Mr. Celestine’s motion to dismiss the indictment against him based on substantial failures to comply with the Jury Selection and Service Act of 1968, 28 U.S.C. §1861 et seq. (the “JSSA” or “Act”). For the reasons set forth below, Mr. Celestine’s motion is DENIED. BACKGROUND Procedural History I will discuss only the facts necessary to resolve the present motion. On August 6, 2020, a grand jury sitting in Central Islip indicted defendant Claude Celestine, charging him with making false statements in a passport application in violation of 18 U.S.C. §1542, and social security fraud, in violation of 42 U.S.C. §408(a)(7)(B). Indictment, ECF No. 4. On September 22, 2020, Mr. Celestine filed a motion requesting access to the records and papers related to the “constitution and implementation” of the jury wheels from which his grand jury was selected. See Def.’s Mot. Inspect Grand Jury Rs., ECF No. 14. I granted Mr. Celestine’s request in part on November 5, 2020. Order, ECF No. 20. On May 12, 2021, I granted his request for disclosure of supplemental materials. Mr. Celestine filed the instant motion to dismiss his indictment on June 18, 2021. Def.’s Mot. Dismiss, ECF No. 39. As an initial matter, I find Mr. Celestine’s motion is timely made pursuant to the Jury Selection and Service Act. See 28 U.S.C. §1867(a) (allowing a defendant to move to dismiss their indictment within seven days of discovering a defect in jury procedures or before voir dire examination begins, whichever is earlier). On May 17, 2021, five days after I granted Mr. Celestine’s motion for disclosure of supplemental materials, Mr. Celestine moved with consent of the government for extension of time to file his instant motion. Consent Mot. Extension Time, ECF No. 37. I granted the parties’ jointly proposed briefing schedule that same day. Mr. Celestine has additionally complied with the Act’s procedural requirements for bringing a motion to dismiss the indictment. Included with his motion is a sworn statement of facts by statistician Jeffrey Martin, “which if true, would constitute a substantial failure to comply with the provisions of [the Act]….” 28 U.S.C. §1867(d). Jury Selection and Service Act The JSSA ensures the right of litigants in federal court to grand and petit juries “selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. §1861. To achieve its purpose, the Act requires federal districts to develop juror-selection procedures that comply with certain requirements, including that 1) all prospective jurors be selected from either voter registration lists or the lists of actual voters of the political subdivisions within the district or division, 2) the processes be designed to “ensure the random selection” of a fair cross section of persons residing in the district or division, and 3) each political subdivision within the district or division be “substantially proportionally represented” in the master jury wheel for that district or division. Id. §1863(b)(2),(3). The JSSA also authorizes districts to supplement their voter lists “where necessary to foster the policy and protect the rights secured” by the Act. Id. §1863(b)(2). A party whose rights under the JSSA are violated may move the court to dismiss their indictment and stay further proceedings until the failures are corrected. Id. §1867(a), (d); see also United States v. Rioux, 97 F.3d 648, 660 (2d Cir. 1996) (“The JSSA provides a method by which a defendant may challenge any conduct that substantially fails to comport with the JSSA.”). The Eastern District’s Jury Selection Process The Eastern District of New York (the “District”) is a single district consisting of Richmond, Kings, Queens, Nassau, and Suffolk Counties. 28 U.S.C. §112(c). Its grand and petit juries are convened pursuant to the District’s October 30, 2006 Amended Jury Selection Plan (the “Jury Selection Plan”). Under the Jury Selection Plan, the Clerk of Court is charged with establishing a master jury wheel of “all persons randomly selected from the combined source lists of all the counties of the Eastern District.” Def.’s Mot. Dismiss, Ex. A §5 (“Jury Selection Plan”), ECF No. 39-1. These “source lists” consist of “voter registration lists of all the counties within [the District] supplemented by lists for these counties from the New York State Department of Motor Vehicles.” Id. §§4, 5. Under the Jury Selection Plan and in accord with the Act, names selected for the master jury wheel must proportionally represent the populations of the District’s five counties. Id. §4. By the September 1st following each presidential election and every two years afterward, the master jury wheel is emptied and refilled. Id. §5. From the master jury wheel, juror names are randomly selected and mailed a juror qualification form. Id. §6. Those jurors who return the form and are neither excused, exempt, nor otherwise disqualified constitute the qualified jury wheel. Id. §11. It is from this qualified wheel that jurors are randomly selected to sit on grand and petit juries. Id. §13. The grand jurors who returned Mr. Celestine’s indictment in the instant case were randomly selected from a qualified jury wheel consisting of 66,209 names. Gov.’s Mot. Opp’n Mot. Dismiss 3 (“Gov.’s Opp’n”), ECF No. 41. The relevant master jury wheel was created on April 25, 2017 and consisted of 531,797 names from combined source lists. Gov.’s Opp’n, Ex. 1 8 (“Siskin Rep.”), ECF No. 41-1. LEGAL STANDARD AND DISCUSSION I. Mr. Celestine’s Objections to His Jury Selection Process Under the JSSA. Mr. Celestine submits that his right to a grand jury “selected at random from a fair cross section of the community in [his] district,” 28 U.S.C. §1861, was violated on four separate grounds. First, Mr. Celestine argues that the empaneled grand jury was not selected from a fair cross section of his community because Black and Latinx individuals were systematically underrepresented.1 Mr. Celestine attributes this underrepresentation to the District’s exclusion of inactive voters from its voter registration lists and persons with non-driver’s license identification cards from its supplemental Department of Motor Vehicles (“DMV”) lists. Def.’s Mot. Dismiss 11-13 (“Def.’s Mot.”), ECF No. 39. Second, Mr. Celestine challenges the exclusion of inactive voters as itself a substantial violation of the JSSA. Id. at 14. Third, Mr. Celestine alleges that the District did not appropriately deduplicate prospective juror names when it merged the voter registration and DMV lists, resulting in a 2017 compiled source list that was 36.95 percent larger than the District’s jury-eligible pool — a difference of 2,008,918 names. Id. at 15. Finally, Mr. Celestine contends that the master jury wheel was not substantially proportional to the District’s counties, as required under the Act, because Queens County was overrepresented by 2.55 percent. Id.; Def.’s Mot., Ex. B
81-87 (“Martin Decl.”), ECF No. 39-2. II. Mr. Celestine’s Fair Cross Section Claim. A. Legal standard. A violation of the JSSA is actionable only if it is substantial. “Mere ‘technical’ violations” do not constitute substantial failures to comply with the Act. United States v. LaChance, 788 F.2d 856, 870 (2d Cir. 1986) (quoting United States v. Carmichael, 685 F.2d 903, 911 (4th Cir. 1982)); see also H.R. Rep. No. 90-1076, at 1805 (1968) (“[C]hallenges will lie only for substantial failure to comply with the statutory provisions. There is room for a doctrine of harmless error.”). Whether a violation is “technical” or “substantial” turns on the “nature and extent” of its impact on the venires used to create the grand jury. LaChance, 788 F.2d at 870. The JSSA extends to federal juries the Sixth Amendment’s requirement that a jury be drawn from a fair cross section of the community. See id. at 864 (citing 28 U.S.C. §1861). Alleged violations of the Act’s fair cross section guarantee are thus analyzed under the same three-pronged test, first stated in Duren v. Missouri, 439 U.S. 357 (1979), used for evaluating Sixth Amendment challenges.2 LaChance, 788 F.3d at 864. To establish a prima facie case, a 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. Duren, 439 U.S. at 364. To prevail on a fair cross section claim, a defendant is not required to show that the jury selection system was motivated by discriminatory animus. Instead, she need only show that the processes used in the selection of jurors led to the systematic exclusion of a cognizable group. See United States v. Biaggi, 909 F.2d 662, 678 (2d Cir. 1990) (“[D]iscriminatory intent is not an element of a Sixth Amendment ‘fair cross-section’ claim.”). B. Threshold Determinations. To conduct the Duren analysis in the present case, I must first determine the proper comparators and means of comparison for evaluating Mr. Celestine’s claim. This requires assessing three threshold issues: (1) the relevant jury wheel to compare to the community, (2) the composition of the relevant community, and (3) the proper statistical method for measuring underrepresentation in the relevant jury wheel. See United States v. Barlow, 732 F. Supp. 2d 1, 28 (E.D.N.Y. 2010), aff’d, 479 F. App’x 372 (2d Cir. 2012). 1. The relevant jury wheel Our Court of Appeals has stated that the relevant jury wheel “may be defined by: (1) the master list; (2) the qualified wheel; (3) the venires; or (4) a combination of the three.” Rioux, 97 F.3d at 657; see also United States v. Allen, No. 20-CR-366 (NSR), 2021 WL 431458, at *5 (S.D.N.Y. Feb. 8, 2021) (“The Second Circuit has not stated a preference for the use of one wheel over the other.”). Mr. Celestine and the government contest whether the master or qualified jury wheel is here proper. The decision of the relevant venire is not insignificant, as the percentages of Black and Latinx persons between the master and qualified jury wheels substantially differ. Whereas Black individuals made up 19.9 percent and Latinx individuals made up 16.18 percent of the master jury wheel based on the government’s estimates,3 Siskin Rep. 13 tbl. 3, those numbers dropped to 15.65 percent Black and 14.07 percent Latinx in the qualified jury wheel, Martin Decl. 35. In deciding the proper wheel to use, other district courts in our circuit have “defined the relevant jury pool with reference to ‘the systematic defect identified by the defendant.’” United States v. Schulte, No. 17-CR-548 (PAC), 2021 WL 1146094, at *4 (S.D.N.Y. Mar. 24, 2021) (quoting United States v. Rioux, 930 F. Supp. 1558, 1565-66 (D. Conn. 1995), aff’d, 97 F.3d 648 (2d Cir. 1996)); see also Allen, 2021 WL 431458, at *5 (defining the relevant jury wheels based on the wheels impacted by the systematic selection issues); United States v. Scott, No. 20-CR-332 (AT), 2021 WL 2643819, at *5 (S.D.N.Y. June 28, 2021) (finding the master jury wheel the proper comparator for the defendant’s claim of, inter alia, exclusion of inactive voters). The government argues that examination of the master jury wheel is appropriate in this case because the “purported systematic defects identified by the defendant” — exclusion of inactive voters and holders of non-driver’s license state identification cards — “all relate to the creation of the [source lists] and Master Wheel.” Gov.’s Opp’n 18. But Mr. Celestine urges consideration of the qualified jury wheel because it is the first venire to contain self-reported racial and ethnic data. Def.’s Reply Gov.’s Opp’n 2-3 (“Def.’s Reply”), ECF No. 43. Mr. Celestine’s arguments in favor of the qualified jury wheel are twofold. First, Mr. Celestine contends that “underrepresentation in the source list carries through to the qualified jury wheel, as well as every other step downstream in the jury selection process.” Id. at 2. I find this argument unavailing. Unlike the master jury wheel, which is comprised of persons randomly selected from the relevant source lists, the qualified jury wheel is made up of jurors who choose to return the questionnaire form. In other words, “there are non-random factors that influence the composition of the qualified wheel and the qualified wheel’s composition can be influenced by external forces.” Allen, 2021 WL 431458, at *5. The master jury wheel, therefore, provides a better indication of underrepresentation caused by the jury selection process itself, rather than by various external forces. Next, Mr. Celestine suggests that the qualified jury wheel is more reliable than the master jury wheel because it has “the benefit of self-reported racial and ethnic data.” Def.’s Reply 2. Mr. Celestine rejects the government’s use of geocoding — a method of statistical analysis whereby a person’s race or ethnicity is estimated based on their neighborhood — arguing that geocoding lacks the accuracy of self-reported demographic information. Id. In support of his contention, Mr. Celestine points to the imprecision of geocoding when used to estimate the racial and ethnic composition of the qualified jury wheel. In absolute terms, geocoding leads to an overestimation of the Black population by 1.71 percent and an overestimation of the Latinx population by 1.37 percent. Def.’s Reply, Ex. A
