U.S. v. Taylor, 07-CR-1244 WPJ.

• Decision Date: 09 October 2009
• Docket Number: No. 07-CR-1244 WPJ.,07-CR-1244 WPJ.
• Citation: 663 F.Supp.2d 1157
• Parties: UNITED STATES of America, Plaintiff, v. Donald Scott TAYLOR, et. al., Defendant.
• Court: U.S. District Court — District of New Mexico

663 F.Supp.2d 1157

UNITED STATES of America, Plaintiff, v. Donald Scott TAYLOR, et. al., Defendant.

No. 07-CR-1244 WPJ.

United States District Court, D. New Mexico.

October 9, 2009.

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Jack Burkhead, John C. Anderson, Shana Pennington, Virgil H. Lewis, II, Gregory James Fouratt, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

Brian A. Pori, Inocente, P.C., Albuquerque, NM, Lori Tiffany Flowers, Michael N. Burt, San Francisco, CA, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY THE PROCEEDINGS BECAUSE THE GRAND JURY AND PETIT JURY VENIRES WERE NOT DRAWN FROM A FAIR AND REPRESENTATIVE CROSS SECTION OF THE COMMUNITY

William P. Johnson, District Judge.

THIS MATTER comes before the Court on Defendant Taylor's Motion to Dismiss or, in the Alternative, Stay the Proceedings (Doc. 499). Specifically, the Defendant argues that the jury selection process used by the District of New Mexico violates his rights under the Fifth and Sixth Amendments of the U.S. Constitution and the Jury Selection and Service Act by systematically excluding Hispanics, African Americans, Native Americans and men. He asks this Court to dismiss the indictment against him because the Grand Jury was not comprised of a fair and representative cross-section of the community. In the alternative, he asks this Court to stay the proceedings until the District of New Mexico develops a more inclusive jury plan. Having considered the parties' briefs and the applicable law, the Court DENIES Defendant's motion.¹

COMPOSITION OF GRAND AND PETIT JURIES

The Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. ("JSSA"), requires each district court to devise a plan for the selection of grand and petit juries. In accord with the JSSA, the District of New Mexico devised and adopted a written plan for jury selection. The 2008 Jury Plan divides the state of New Mexico into three petit jury divisions (the Northern, Central and Southern Divisions) and two grand jury divisions (the Northern/Central Division and the Southern Division).² Every two years, a Master Jury Wheel is created by selecting at least 3,000 names—1,000 from each of the three petit jury divisions—at random from voter registration lists. Next, the Clerk randomly selects names from each division on the master wheel and sends those persons both a juror qualification form and a general summons to report for grand or petit jury service for a two-month term. The qualification forms ask potential jurors to identify their gender, race and ethnicity among other things. When the forms are returned, the Clerk of Court dismisses anyone who is disqualified,³ exempted⁴ or excused.⁵ If a person is qualified and available to serve, then his or her name is added to the Qualified Jury List for his or her division and he or she is expected to report for service pursuant to the summons. Under the 2008 Plan, new Qualified Jury Lists are created approximately every two months.

In contrast, the 2003 Jury Plan instructed the Clerk to create Qualified Jury Wheels rather than Qualified Jury Lists for each of the three petit jury divisions. To form the qualified wheels, names on the master wheel were randomly selected to receive a juror qualification form. Once the qualification forms were returned, the Clerk added the names of each person who was qualified and available to serve to the Qualified Jury Wheel for that juror's division. Finally, names were drawn at random from the Qualified Wheel and those persons receive summonses for particular grand and petit jury panels. The 2008 Jury Plan consolidated this process: jurors are now summoned and qualified in a single procedure in lieu of two separate procedures.

This case implicates both the 2003 and 2008 Jury Plans. The grand jury which returned the superseding indictment against the Defendant in this case was formed pursuant to the provisions of the 2003 Jury Plan, which was in place at the time the grand jury was empaneled. Taylor was indicted in Las Cruces by a jury selected from the Southern Division (as that division is defined in the 2003 Plan). The petit jury, on the other hand, will be selected pursuant to the provisions of the 2008 Jury Plan which is currently in effect. The 2008 Plan directs the Clerk to assemble a petit jury from the Qualified Jury List for the Central Division. This Court, however, chose to forgo this procedure and instead ordered the Clerk to create a Qualified Jury List for this case on a districtwide basis. (Doc. 228) The Court decided to draw jurors on a state-wide basis rather than only from the Central Division in order to offer the Defendant and the Government the broadest possible spectrum of qualified jurors on the basis of race, ethnicity and geography. Furthermore, because the Government had filed notice of intent to seek the death penalty, the Court wanted to avoid any potential problems with jury selection in the event the case received significant pre-trial publicity. In accord with the Court's order, the Clerk created a Qualified Jury List (identified as Pool # 101091001) for this case based on an initial random draw of 4,000 names on a state-wide basis from the Master Wheel. With the consent of the parties, the Clerk subsequently narrowed the list to 1,000 persons who were both qualified and available to serve. This Court then authorized the Clerk to mail a voir dire questionnaire along with instructions to appear to each of the 1,000 randomly selected jurors.

SIXTH AMENDMENT

The Sixth Amendment guarantees a defendant in a criminal trial the right to an impartial jury drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 537, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). A defendant does not, however, have the right to a jury of any particular composition and the jury actually chosen need not "mirror the community." Id. at 538, 95 S.Ct. 692. To establish a prima facie violation of the fair cross-section requirement, 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 such 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, 58 L.Ed.2d 579 (1979). Once a defendant makes out a prima facie Sixth Amendment violation, the burden shifts to the government to justify the systematic underrepresentation by pointing to a significant state interest at play. Id. at 368, 99 S.Ct. 664. The Court first analyzes whether the Defendant has made out a prima facie case of a Sixth Amendment violation.

1. Is the Excluded Group "Distinctive"?

A group is "distinctive" under the first prong of this test if the group has: (1) some quality or attribute which defines or limits the group; (2) a cohesiveness of attitudes or ideas or experiences which distinguishes the group from the general social milieu; and (3) an interest which may not be represented by other segments of society. United States v. Test, 550 F.2d 577, 591 (10th Cir.1976). The Government does not dispute, and there is no question, that Hispanics, African Americans, and Native Americans are distinctive groups in the community. See United States v. Gault, 141 F.3d 1399, 1402 (10th Cir.1998) (noting that Hispanics, Native Americans and African Americans are distinct groups in the community). The Government argues, however, that men do not constitute a distinctive group. While the U.S. Supreme Court has not addressed this question, it has held that women constitute a distinctive group, finding that "women are sufficiently numerous and distinct from men." Taylor, 419 U.S. at 531, 95 S.Ct. 692. It stated further that "the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. . . . The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded." Id. at 531-32, 95 S.Ct. 692 (quoting Ballard v. United States, 329 U.S. 187, 193-94, 67 S.Ct. 261, 91 L.Ed. 181 (1946)).

I believe this language tends to show that men qualify as a distinctive group. Certainly, persons of the male sex are a well-defined and limited group. Furthermore, men arguably have a collective experience of being male which distinguishes them from women. Finally, just as women have a "community of interest" which may not be fairly represented by other segments of society, men too have a shared interest which may not be adequately represented by women. But see United States v. Smalls, 06-cr-2403-RB, slip op. at 10 (D.N.M. Oct. 2, 2008) (finding that men do not constitute a distinct group based on expert's testimony that men have not been historically disadvantaged by society and do not tend to form groups for the purpose of discussing or fostering the issues of men); United States v. Lujan, 05-cr-924-RB, slip op. at 9 (D.N.M. Oct. 9, 2008) (same). Regardless, the Court need not decide this matter here. Even assuming that men constitute a distinctive group, the Defendant failed to show that men are substantially underrepresented in the venires from which the grand jury and the petit jury are chosen.

2. Is the Group Fairly Represented in Jury Venires?

In order to determine whether these distinctive groups are fairly represented in the jury venires, the Tenth Circuit has instructed district courts to consider two measures: absolute disparity and comparative disparity. United States v. Orange, 447 F.3d 792, 798 (10th Cir. 2006). Absolute disparity is determined by subtracting the percentage of a group in the jury wheel from the...