United States v. Bowers

Decision Date05 April 2022
Docket Number2:18-CR-00292-RJC
CourtU.S. District Court — Western District of Pennsylvania

Robert J. Colville, United States District Judge.

Pending is Defendant's Motion to Dismiss Superseding Indictment Pursuant to the Fifth, Sixth, and Eighth Amendments, the Jury Selection and Service Act, 18 U.S.C. § 243, and this Court's Supervisory Authority over Federal Criminal Procedures, or to Stay the Proceedings Pending the Selection of a New Grand Jury and a Petit Jury in Conformity with the Constitution and Jury Selection and Service Act, and Request for Evidentiary Hearing and Further Discovery. (ECF No. 650). The Government filed a Response to Defendant's Motion on January 10, 2022 (ECF No. 659), Defendant filed a Reply on January 18, 2022 (ECF Nos. 681, 683), the Government filed a Sur-Reply on February 22, 2022 (ECF No. 700), and Defendant filed a Sur-Sur-Reply on March 4, 2022 (ECF No. 709). The Motion is now ripe for review.


On January 29, 2019, a grand jury returned a Superseding Indictment charging Defendant with multiple capital-eligible and non-capital offenses. (ECF No. 44). In the instant Motion, Defendant seeks an order dismissing the Superseding Indictment against him on the following grounds: (1) a violation of the Fifth Amendment's guarantees of a grand jury, due process, and equal protection of the laws; (2) a violation of the Sixth Amendment's guarantee of trial by a petit jury selected from a fair cross-section of the community; (3) a violation of the Eighth Amendment mandate that, in a capital case, the defendant is entitled to reliability and enhanced procedural protections; (4) a violation of the Jury Selection and Service Act of 1968 (“JSSA”); (5) a violation of 18 U.S.C. § 243; and (6) as necessary in the proper exercise of this Court's supervisory power over federal criminal procedure. (ECF No. 650). Defendant asserts that the Western District of Pennsylvania is in substantial violation of the JSSA, 18 U.S.C. § 243, and the Constitution because: (1) it has failed to supplement its jury source list; (2) it has failed to take other reasonable measures designed to ensure a constitutionally adequate jury selection procedure; and (3) it is otherwise in violation of specific provisions of the JSSA designed to ensure inclusiveness representativeness, randomness, accuracy, reliability, proportionality, and fairness. Id. If dismissal is not deemed appropriate, Defendant alternatively seeks a stay of these proceedings and re-presentation of his case before a grand jury selected with procedures in compliance with these statutory provisions and the Constitution. Id. Defendant seeks an evidentiary hearing in support of the same. In response, the Government disputes the merits of Defendant's claims. (ECF No. 659). The Government also states that Defendant fails to raise any issues of material fact and, therefore, that an evidentiary hearing is not necessary. Id.

The Court addresses each of Defendant's claims in turn.

A. Western District of Pennsylvania's Jury Plan

Pursuant to the JSSA, the United States District Court for the Western District of Pennsylvania has in place a written plan for the random selection of grand and petit jurors. See 28 U.S.C. §1863; Plan of the United States District Court for the Western District of Pennsylvania for the Random Selection of Grand and Petit Jurors (“Jury Plan”). In the instant Motion, Defendant challenges the Jury Plan as it currently exists (effective March 2, 2020) and as it existed at the time of Defendant's indictment and superseding indictment (effective April 1, 2009).[1] Aside from a single amendment to Section 9, discussed more fully below, the two plans are identical. Accordingly, the Court refers to the plans generically as the “Jury Plan” except where necessary to distinguish the two versions.

The Jury Plan applies to all three divisions of the District Court for the Western District of Pennsylvania (Erie, Johnstown, and Pittsburgh). Jury Plan § 3. The Pittsburgh Division is at issue in this case and consists of Allegheny, Armstrong, Beaver, Butler, Clarion, Fayette, Greene, Indiana, Jefferson, Lawrence, Mercer, Washington, and Westmoreland counties. Id. The Jury Plan sets forth essentially a two-step process for juror selection. First, the district creates a master jury wheel for each of its three divisions by selecting names at random from voter registration lists for the applicable division. Id. § 5 (stating that “names of grand and petit jurors selected to serve . . . shall be selected at random from the voter registration lists of all the counties within the relevant divisions”). “Voter registration lists” as used in the Jury Plan mean “the voter registration lists for a statewide primary or general election as maintained by the counties.” Id. The voter registration lists are obtained electronically and exclusively from the Statewide Uniform Registry of Electors (“SURE”) through the Pennsylvania Department of State. Id. The Jury Plan asserts that (v)oter registration lists represent a fair cross section of the community in each division of the Western District of Pennsylvania.” Id.

After the master jury wheel is filled, names are randomly drawn from the master wheel to receive a juror qualification questionnaire. Id. § 9. The answers to this questionnaire determine whether the person responding is deemed qualified to serve as a juror. Id. §§ 9-12. The names of all persons drawn from the master jury wheel in each division, who are not disqualified, exempt, or excused pursuant to the Jury Plan, are then put into a second wheel, called the qualified jury wheel. Id. § 11. Individuals from the qualified jury wheel are then randomly selected as necessary to be summoned for service on grand or petit juries. Id. § 13.

The Jury Plan provides that [t]he master jury wheel shall be emptied and refilled every two years and refilled within four months after a November general election.” Id. § 8. Similarly, [t]he qualified wheel for each division shall be emptied and refilled every two (2) years and within seven (7) months after a November general election.” Id. § 13. The master jury wheel pertinent to the grand jury in this case was filled on February 7, 2017. See ECF No. 650-11. On February 21, 2018, 85 grand jurors were summoned from the qualified jury wheel to be considered as grand jurors in this case. See id. A trial date for this case has not yet been set, and, thus, it is not certain from which jury wheel the petit jury will be selected.[2]

As set forth above, the Jury Plan in place at the time of the grand jury selection in this case was amended effective March 2, 2020. The sole difference between the 2009 Jury Plan and the 2020 Jury Plan is the addition of the following paragraph to the end of Section 9 in the 2020 version:

Additionally, for each juror qualification mailing returned by the Post Office as undeliverable and/or for each person who fails to complete and/or respond to the juror qualification questionnaire within 21 days of the date of mailing, the Clerk shall draw at random, the name of a resident whose address is in the same zip code to which this original juror qualification mailing had been sent. The Clerk shall then mail a paper version of the juror qualification questionnaire to that resident and, thereafter, follow the procedures set forth in this section of the Plan with respect to that new prospective juror.

(ECF No. 659-1, at 289).

B. Fair Cross Section Claim[3]

1. General Principles

The Sixth Amendment entitles a criminal defendant to a trial by an impartial jury. U.S. Const., amend. VI. An “important step in furthering impartiality is to draw jurors from diverse segments of the population.” United States v. Savage, 970 F.3d 217, 252 (3d Cir. 2020), cert. denied, 142 S.Ct. 481 (U.S. 2021) . “The Supreme Court has declared this method a constitutional guarantee by concluding that ‘the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.' Id. (quoting Taylor v. Louisiana, 419 U.S. 522, 528 (1975)). The fair-cross-section requirement does not guarantee that the jury itself be “of any particular composition, ” but only “that ‘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.' United States v. Weaver, 267 F.3d 231, 236 (3d Cir. 2001) (quoting Taylor, 419 U.S. at 538).[4]

The JSSA provides a corresponding statutory framework to facilitate the selection of a representative jury. See 28 U.S.C. § 1861 (stating that “all litigants in Federal courts entitled to trial by jury shall have the right 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”). The Act tasks federal district courts “with creating jury-selection plans consistent with this fair cross-section principle.” Savage, 970 F.3d at 252. Such plans generally must draw potential jurors from “voter registration lists” or “lists of actual voters, ” but also must identify other sources “where necessary to foster the policy and protect the rights secured by” the JSSA's fair-cross-section principle. Id. at 252-53 (quoting 28 U.S.C. § 1863(b)(2)).

To succeed on a constitutional or statutory “fair-cross-section challenge, a defendant has the burden to show each of the following three elements:

(1) “a ‘distinctive' group in the community” (2) that was “not fair[ly] and reasonab[ly] represented among potential jurors compared with its representation in the

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