OPINION AND ORDER DENYING MOTION TO DISMISS INDICTMENT A federal grand jury sitting in Manhattan charged the defendants in this case in a three-count indictment with conspiracy to commit theft of government funds, conspiracy to commit identity theft, and aggravated identity theft based on the government’s allegations that the defendants stole other people’s covid stimulus checks [ECF No. 28 ("Indictment")]. Defendant Leuris Manuel Sabala-Mejia filed a motion to dismiss the Indictment [ECF Nos. 33, 34], and Defendants Massiel Encarnacion-Velzez, Christina Rodriguez, and Ismael Gonzalez joined in that motion [ECF Nos. 36, 70, 73]. These defendants argue that the Indictment was obtained in violation of the Sixth Amendment to the United States Constitution and the Judicial Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. §§1861 et seq. Specifically, they argue that the grand jury was not drawn from a fair cross section of the community. For the reasons that follow, the motion is DENIED. BACKGROUND A. Method of Jury Selection in the Southern District of New York The United States District Court for the Southern District of New York hears cases arising out of the counties of New York, Bronx, Westchester, Rockland, Orange, Dutchess, Putnam, and Sullivan in New York State. 28 U.S.C. §112(b). The Court conducts jury trials in Manhattan (in New York County) and in White Plains (in Westchester County). Id. In order to draw jurors for grand juries and trials in this District, the judges of the Court adopted a plan for the selection of jurors pursuant to authority delegated by the JSSA. See 28 U.S.C. §1863(a). The plan relevant to this case is the Amended Plan for the Random Selection of Grand and Petit Jurors in the United States District Court for the Southern District of New York, dated February 13, 2009 [ECF No. 34-1 ("SDNY Jury Plan")]. Pursuant to the SDNY Jury Plan, every four years, the Clerk of the Court assembles a separate “Master Jury Wheel” for the Manhattan and White Plains courthouses. SDNY Jury Plan §§III.A-III.C. The Master Wheel for each courthouse contains only names from the counties assigned to that courthouse. SDNY Jury Plan §III.C. Specifically, the Manhattan Master Wheel includes residents of New York, Bronx, Westchester, Putnam and Rockland counties, while the White Plains Master Wheel includes residents of Westchester, Putnam, Rockland, Orange, Sullivan and Dutchess counties. SDNY Jury Plan §III.C. Each county must be proportionally represented on the Master Wheels. SDNY Jury Plan §§III.A. As part of the process to assemble the Master Wheels, the Clerk first determines what numbers of jurors (for both grand and petit juries) is “sufficient to supply estimated Court juror needs for up to four years.” SDNY Jury Plan §III.B. The Clerk then randomly draws that number of names from the list of registered voters in the counties assigned to each Master Wheel. SDNY Jury Plan §§III.A, III.C. As jurors are required for proceedings in the courthouses, but in any event no less than once or twice each year, the Clerk assembles a “Qualified Jury Wheel” for each of the courthouses. SDNY Jury Plan §III.D. To do so, the Clerk randomly selects jurors from the Master Wheel for each courthouse in a number “based upon anticipated juror demands for the ensuing six months plus a margin of extra names sufficient to compensate for the estimated number that will turn out to be unavailable or ineligible.” SDNY Jury Plan §III.D. The Clerk then mails a questionnaire to each person selected out of the Master Wheel to determine his or her eligibility and qualifications for sitting on a jury.1 SDNY Jury Plan §III.D. Any person who returns the questionnaire as required, and who is determined to be eligible and qualified to sit on a jury based on his or her responses, is placed on the “Qualified Jury Wheel” from which names are drawn and potential jurors are summoned for specific proceedings. SDNY Jury Plan §§III.D, IV.A. B. Procedural History On April 5, 2021, a grand jury in Manhattan returned an indictment charging Defendants Massiel Encarnacion-Velzez, Yerano Navarro, Christina Rodriguez, Gerald Rodriguez, Ismael Gonzalez, Leuris Manuel Sabala-Mejia, and Francia Espinal-Taveras with conspiring to commit theft of government funds in violation of 18 U.S.C. §371, conspiring to commit identity theft in violation of 18 U.S.C. §1028(a)(3), and aggravated identity theft in violation of 18 U.S.C. §1028A [ECF No. 28 ("Indictment")]. Shortly thereafter, Defendant Leuris Manuel Sabala-Mejia filed a motion to dismiss the Indictment, pursuant to the Sixth Amendment, the Fifth Amendment, and the Judicial Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. §§1861 et seq., arguing that the Manhattan grand jury was not drawn from a fair cross section of the community [ECF Nos. 33, 34 ("Def. Mem.")]. In particular, Sabala-Mejia argues that “Blacks and Latinos” were “systematically underrepresented” in the District’s Qualified Jury Wheel. See Def. Mem. at 2. For support, he submits a declaration from Jeffrey Martin, a consultant on statistical and actuarial issues who previously has served as an expert witness in federal litigation and who has experience in cases involving challenges to jury lists [ECF No. 34-1, Exhibit C ("Martin Decl.")]. Martin posits a number of potential causes for supposed underrepresentation: 1) the use of voter registration lists as the source of names for the Master Wheel (Martin Decl. 78); 2) the omission of “inactive” voters from the voter registration lists used to create the Master Wheel (Martin Decl. 61); 3) the exclusion of some 18 to 21-year-old persons from the list because the Master Wheel is updated every four years (Martin Decl.
70, 79); 4) the staleness of addresses for individuals in the Master and Qualified Wheels because the information is updated only every four years (Martin Decl. 74); 5) an acknowledged error in transferring alternative mailing addresses for certain voters who reside in Putnam County (Martin Decl. 81); 6) that questionnaires returned as undeliverable resulted in a person’s exclusion from the Qualified Wheel (Martin Decl. 84); and 7) that questionnaires that were never responded-to or returned resulted in a person’s exclusion from the Qualified Wheel (Martin Decl. 85). Sabala-Mejia further seeks to enjoin the empanelment of a petit jury until SDNY cures the purported deficiencies with its jury lists. Def. Mem. at 17. Defendants Massiel Encarnacion-Velzez, Christina Rodriguez, and Ismael Gonzalez later joined in Sabala-Mejia’s motion [ECF Nos. 36, 70, 73].2 The government opposes the motion. [ECF No. 74 ("Opp.")]. The government relies on a competing report from Dr. Bernard Siskin, a statistics consultant with experience working for governmental organizations on issues related to racial disparities. On June 9, 2022, the Court held a status conference in this case. The Court denied the motion to dismiss the Indictment on the record at the conference. The Court noted that numerous defendants in this District have filed substantially identical motions, and, to date, every judge to rule on such a motion has rejected the Sixth Amendment and JSSA challenges to the SDNY Jury Plan. See, e.g., United States v. Adelekan, No. 19-cr-291 (LAP), 2021 WL 4839065, at *6 (S.D.N.Y. Oct. 15, 2021) United States v. Neilly, No. 21-cr-94 (VEC), 2021 WL 3913559, at *2 (S.D.N.Y. Sept. 1, 2021) (collecting cases); United States v. Tagliaferro, No. 19-cr-472 (PAC), 2021 WL 1172502 (S.D.N.Y. Mar. 29, 2021). ANALYSIS A. The Sixth Amendment Challenge “The Sixth Amendment guarantees a criminal defendant a jury selected from a fair cross section of the community.” United States v. Rioux, 97 F.3d 648, 654 (2d Cir. 1996). In order to establish a prima facie violation of the fair cross section requirement, a defendant must satisfy the three-part test set out by the Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979). Specifically, a movant has the burden to show that (1) the excluded group is “distinctive”; (2) 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) the under-representation is due to “systematic exclusion of the group in the jury-selection process.” Id. at 364. Only if a defendant is able to make such a prima facie showing, the burden shifts to the government to show that “attainment of a fair cross section [would] be incompatible with a significant state interest.” Id. at 368-69. To succeed on a Sixth Amendment claim, it is not necessary to show discriminatory intent. United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990). 1. Duren Factor One: Distinctive Group The parties agree that Defendants’ Sixth Amendment claim, which alleges under-representation of Black and Latino people in the jury wheels for the District, satisfies the first Duren factor, since these are recognized “distinctive” groups. See Def. Mem. at 4 (citing United States v. Jackman, 46 F.3d 1240, 1246 (2d Cir. 1995)); Opp. at 6. 2. Duren Factor Two: Significant Under-representation The second Duren factor requires the Court to consider whether the jury wheel has a significant under-representation of the distinctive groups — here, Blacks and Latinos — as compared to the proportion of those groups in the community population. Duren, 439 U.S. at 364. However, to perform that analysis, the Court must first determine which jury wheel is relevant to Defendants’ arguments and what percentages of the relevant community population are Black or Latino for the purpose of comparing the percentages to those in the jury wheels. a. The Court Must Consider Both Manhattan Jury Wheels The parties disagree about which jury wheel should be used to analyze Defendants’ fair cross section claim. Defendants assume that the Qualified Wheel should be considered in connection with each of the alleged causes of under-representation. See Def. Mem. at 8. The government urges a more fact-specific approach, in which the Court considers the jury wheel most relevant or directly connected to each of the Defendants’ alleged defects or deficiencies related to the under-representation. See Opp. at 10. For the reasons stated below, the Court finds the government’s approach most appropriate. “Neither the Supreme Court nor the Second Circuit has defined the ‘relevant jury pool’ [for the purposes of the second Duren factor] with any specificity.” United States v. Rioux, 930 F. Supp. 1558, 1565 (D. Conn. 1995). However, following a thorough analysis in Rioux, that court, and others since, have most often considered the jury pool “in the context of the systematic defect identified by the defendant.” Id. at 1566-58; United States v. Scott, __ F. Supp. 3d __, 2021 WL 2643819, at *5 (S.D.N.Y. 2021); United States v. Schulte, No. 17-cr-548 (PAC), 2021 WL 1146094, at *4 (S.D.N.Y. Mar. 24, 2021); United States v. Allen, 2021 WL 431458, at *5 (S.D.N.Y. Feb. 8, 2021). As another judge in this District phrased it, the relevant jury pool is the one that “bears the brunt of the defendant’s allegations of systematic exclusion.” Schulte, 2021 WL 1146094, at *4. Under this approach, the Court determines which of the Master Wheel and the Qualified Wheel is appropriate for the analysis based on the specific challenges the defendant raises to the jury selection process. Scott, 2021 WL 2643819, at *5. Here, the Court must review both the Master and Qualified Wheels because Defendants’ charged causes of alleged under-representation differ as to which wheel each purportedly affects. For example, the omission of “inactive” voters from the lists used to create the Master Wheel, see Martin Decl.
