U.S. v. Johnson

• Decision Date: 27 August 1998
• Docket Number: No. S1 98 Cr. 45(RCC).,S1 98 Cr. 45(RCC).
• Citation: 21 F.Supp.2d 329
• Parties: UNITED STATES of America v. Trevor JOHNSON, Robert Carnes, a/k/a "Jamal," Dennis McCall, a/k/a "B-Boy," Daniel Hunter, a/k/a "Tyborne," and Eric Mulder, a/k/a "Unique," Defendants.
• Court: U.S. District Court — Southern District of New York

21 F.Supp.2d 329

UNITED STATES of America v. Trevor JOHNSON, Robert Carnes, a/k/a "Jamal," Dennis McCall, a/k/a "B-Boy," Daniel Hunter, a/k/a "Tyborne," and Eric Mulder, a/k/a "Unique," Defendants.

No. S1 98 Cr. 45(RCC).

United States District Court, S.D. New York.

August 27, 1998.

COPYRIGHT MATERIAL OMITTED

Elliot R. Press, Brooklyn, NY, Stephen P. Scaring, Garden City, NY, for Trevor Johnson.

Marilyn S. Reader, Larchmont, NY, Julie Prag Vianale, White Plains, NY, Julie Vianelli, Briccetti & Calhoun, White Plains, NY, for Robert Carnes.

Anthony J. Ferrara, Polstein & Ferrara, New York City, for Dennis McCall.

Andrew A. Rubin, Mancuso, Rubin & Fufidio, White Plains, NY, Howard J. Herman, New York City, Amy Margaret Attias, Pleasantville, NY, for Daniel Hunter.

David G. Secular, New York City, for Eric Mulder.

MEMORANDUM AND ORDER

CASEY, District Judge.

Background

Defendants Trevor Johnson (hereinafter "Johnson"), Robert Carnes, a/k/a "Jamal" (hereinafter "Carnes"), Dennis McCall, a/k/a "B-Boy" (hereinafter "McCall"), Daniel Hunter, a/k/a "Tyborne" (hereinafter "Hunter") and Eric Mulder, a/k/a "Unique" (hereinafter "Mulder"), were indicted in January, 1998, on one count of conspiracy to extort money from several construction companies, in violation of 18 U.S.C. § 1951(b)(2). Three other related indictments were handed down the same day, all related to activities of the Gambino crime family. In July, 1998, the government superceded this indictment with S1 98 Cr. 45 ("S1"), which contains two counts. Count one charges all five defendants with conspiracy to commit extortion and to obstruct, delay and affect commerce, in violation of 18 U.S.C. §§ 1951(b)(2) and 1951(b)(3), and details more overt acts than the original indictment. Count two charges defendants Johnson, Carnes and McCall with extortion and obstructing, delaying and affecting commerce, in violation of 18 U.S.C. §§ 1951(b)(2) and 1951(b)(3).

Defendants Johnson and McCall have jointly filed a motion, which defendants Hunter and Carnes join, seeking to dismiss the indictment and to stay further proceedings in this case because they claim the selection process for White Plains grand and petit juries violates their Fifth and Sixth Amendment rights, along with the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq. Defendants claim that the selection process results in the underrepresentation of blacks and Hispanics in the White Plains Master Wheel. Defendants Johnson, McCall, Hunter and Carnes have also made motions asking the Court to compel the government to provide them with a bill of particulars. Defendants McCall and Hunter have made motions seeking to be severed from the rest of their co-defendants. Defendant Johnson has made a motion seeking severance specifically from defendant Eric Mulder, which is joined by defendant Carnes. Defendant Hunter also has made a motion asking the court to preclude certain tape recorded conversations. These motions were filed before the S1 indictment was filed, but they are deemed applicable to the S1 indictment.

For the reasons set forth below, defendants' motions to dismiss the indictment and stay the proceedings are denied. Defendants' motions for a bill of particulars is granted in part and denied in part. Defendants' motions for severance are denied. Defendant Hunter's motion to preclude is denied with leave to renew.

1. Jury Selection

Defendants Johnson and McCall, joined by defendants Carnes and Hunter, ask this Court to dismiss the current indictment and stay the proceedings in this case, claiming that the selection process for the grand and petit juries for the Southern District of New York is in violation of the Equal Protection Clause of the Fifth Amendment, the defendants' Sixth Amendment right to an impartial jury and the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861, et. seq. (hereinafter "Jury Act").

This jury selection process is detailed in 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 (hereinafter "Jury Plan"). See Beveridge Aff. Exh. B. For the purposes of selection of grand and petit jurors, the Southern District is divided into two overlapping divisions, the White Plains division and the Foley Square division. Defendants claim that the configuration of these two jury divisions creates a jury pool in the White Plains division that does not adequately represent the black and Hispanic populations in the "community".

Juries in the Southern District are selected as follows. In the year after each presidential election, the Jury Administrator obtains voter registration lists for the eight counties comprising the Southern District. The total number of registered voters in the District, including New York (Manhattan), Bronx Westchester, Rockland, Putnam, Dutchess, Orange and Sullivan counties, was 2,487,567 for the 1996 presidential election, on which the current master wheels are based. Not every registered voter is used for jury selection, however. Because the District has limited computer capacity and does not need all the registered voters to create its master wheels, the Court uses only a portion of the names.

The voters in the District are separated by county, and from these lists, two master jury wheels are created, one for White Plains, and one for Foley Square. The Foley Square Master Wheel is comprised of New York (Manhattan), Bronx, Westchester, Rockland and Putnam counties. Voters from these five counties are selected at random to fill the Foley Square Master Wheel. For the current Foley Square Master Wheel, 713,800 jurors were selected, taken from each county in proportion to the number of registered voters in each of the five counties for the 1996 presidential election. The White Plains Master Wheel is comprised of voters from the counties of Westchester, Rockland, Putnam, Dutchess, Orange and Sullivan (hereinafter the "northern six counties"). Voters from each of these counties are selected at random for the White Plains Master Wheel in proportion to the number of registered voters in each of these northern six counties, totaling 346,458 for the current master wheel.

These master wheels are constructed every four years and supply the pool of potential jurors for grand and petit juries for those four years. They are supplemented, according to the plan, should the court need more names in that four year period. The current master wheels were constructed in September, 1997, and will be used until new master wheels are constructed after the next presidential election in 2000.

The Plan mandates that each master wheel contain voters proportionally represented in relation to the other counties in that division. See Jury Plan, Article IV.B.¹ The current master wheels reflect this goal.² The Southern District has found it necessary, however, to include three counties, Westchester, Rockland and Putnam, in both master wheels. This is because the Foley Square Courthouse has a need for jurors greater than could be supplied solely by Manhattan and the Bronx. The result of this overlap is that if one combines the numbers in the master wheels for Foley Square and White Plains, Westchester, Rockland and Putnam counties are represented in the Southern District as a whole in greater proportions than the other counties. These three counties are nearly perfectly represented, however, in each of the respective divisions. See note 2, supra.

a. Sixth Amendment

The Supreme Court has interpreted the Sixth Amendment's guarantee of "a speedy and public trial by an impartial jury" to entitle defendants in criminal cases to juries chosen from panels that represent a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 526-29, 538, 95 S.Ct. 692, 695-97, 701, 42 L.Ed.2d 690 (1975). The Jury Act extends this requirement to the selection of grand juries as well. 28 U.S.C. § 1861 (1994). A defendant attempting to establish a prima facie violation of this requirement 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 v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). See also United States v. Jackman, 46 F.3d 1240, 1245-46 (2d Cir.1995).

Because courts have held that blacks and Hispanics are "distinctive" groups in the community, the defendants easily meet the first of the three Duren factors required to establish a prima facie violation of the Sixth Amendment. Jackman, 46 F.3d at 1246. In considering the second Duren element, the Court must determine "whether either or both of these two `distinctive' groups are `significant[ly] underrepresent[ed]' in the jury selection process." Id. (citing United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990) cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991) (alteration in original)).

Defendants have failed, however, to satisfy the second prong of this test, as they have not presented any evidence that the White Plains Master Wheel does not represent a fair and reasonable cross-section of the community. In fact, defendants do not even argue that the White Plains Master Wheel does not adequately reflect the relevant population³ of the northern six counties that comprise the White Plains jury division. Instead, they base all their conclusions on the erroneous assumption that the only proper community for the White Plains courthouse is the entire Southern District.

This Court finds that the proper community or division for the White Plains courthouse, for the purposes of jury selection, has been properly designated as the northern six counties of the ...