United States v. Scott

• Citation: 545 F.Supp.3d 152
• Decision Date: 28 June 2021
• Docket Number: 20 Cr. 332 (AT)
• Parties: UNITED STATES of America, v. William SCOTT, Defendant.
• Court: U.S. District Court — Southern District of New York

545 F.Supp.3d 152

UNITED STATES of America,

v.William SCOTT, Defendant.

20 Cr. 332 (AT)

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

Signed June 28, 2021

Alexandra Rothman, Assistant US Attorney, United States Attorney's Office, New York, NY, for United States of America.

OPINION AND ORDER

ANALISA TORRES, District Judge:

Defendant, William Scott, moves for an order dismissing the indictment on the ground that it violates his right to a representative jury under the Fifth and Sixth Amendments to the Constitution, and the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. (the "JSSA"). Def. Mot., ECF No. 17; Def. Mem. at 1, ECF No. 19. For the reasons stated below, the indictment is DISMISSED without prejudice.

BACKGROUND

I. Southern District of New York Jury Selection Procedure

The Southern District of New York (the "Southern District") embraces Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan, and Westchester Counties. 28 U.S.C. § 112(b). The court sits in Manhattan, White Plains, and Poughkeepsie. Id. ; About the District , U.S. District Court: Southern District of New York, https://www.nysd.uscourts.gov/about (last visited June 28, 2021). Grand juries are convened and jury trials take place in the courthouses located in Manhattan and White Plains.

The Southern District creates a separate jury "wheel" for each of its two divisions pursuant to 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 (Feb. 13, 2009) (the "Jury Plan"), https://nysd.uscourts.gov/sites/default/files/pdf/juryplan_feb_2009.pdf, which was drafted according to the JSSA. Under this plan, jury venires are constructed as follows. First, the Clerk of Court or a deputy (the "Clerk") compiles a roster of all individuals whose names appear on the voter registration list of each relevant county. Jury Plan § III.A. From this roster, a number of people—whatever is "deemed sufficient for a four-year period"—is chosen at random. Id. The selected names are placed on "[m]aster [w]heel[s]," id. , which are refilled every four years. Id. § III.B. Each county must be proportionally represented on the master wheels. Id. § III.A.

When necessary, the Clerk chooses names randomly from the master wheel, and mails those individuals a questionnaire regarding their eligibility and availability for jury service (the "Eligibility Questionnaires"). Id. § III.D. When the Eligibility Questionnaires are returned, those persons deemed eligible from their responses are placed on a "qualified wheel." Id. Petit and grand jury venires are then constituted from a random selection of those on the qualified wheel. Id. § III.F.

The Jury Plan provides for two separate master wheels. Names are drawn from Bronx, New York, Putnam, Rockland, and Westchester Counties (the "Manhattan Division") to create a master wheel for the Manhattan courthouses. Id. § III.C. Names are drawn from Dutchess, Orange, Putnam, Rockland, Sullivan, and Westchester Counties (the "White Plains Division") to create a master wheel for the White Plains courthouse. Id. Therefore, Putnam, Rockland, and Westchester Counties (the "Overlapping Counties") are included in both divisions. Each division constructs its own qualified wheel from its master wheel. Id. § IV.B.

In practice, the White Plains Division's jury selection process deviates from the Jury Plan in several respects.

First, the White Plains Division does not include inactive voters on the voter registration lists of five counties: Orange, Putnam, Rockland, Sullivan, and Westchester. Martin Aff. ¶ 24, ECF Nos. 20–21. Thus, the names of those inactive voters do not appear on the lists the Clerk draws from to create the White Plains Division master wheel (the "Inactive Voter Exclusion"). Id. However, Dutchess County inactive voters are included on that county's list. Id. Inactive voters are registered voters who have been flagged, by proxy identification methods, as having moved from their voting address, such as when a county's board of elections sends mail to a voter that is then returned as undeliverable, or the Department of Motor Vehicles so informs the board. See Common Cause/New York v. Brehm , 432 F. Supp. 3d 285, 290 (S.D.N.Y. 2020). When a voter is marked as inactive, the county's board of elections mails an address confirmation request to the voter. Id. To be reinstated, a voter can either reply to the confirmation notice or cast a valid affidavit ballot in a federal election. Id. at 291. A failure to vote for four years results in the state cancelling the voter registration. Id. In an unrelated case, another court in this district found that tens of thousands of voters in New York state were incorrectly marked as inactive. Id. at 293–98.

Second, the number of individuals selected from the Overlapping Counties for each division's master wheel is prorated, but in the White Plains Division, this method of proration causes fewer individuals to be chosen from the Overlapping Counties.¹ Martin Aff. ¶¶ 34–35; Gov't Opp'n at 27–28, ECF No. 28; Siskin Rep. ¶ 13, ECF No. 28-1. Specifically, although one out of three voters from Dutchess, Orange, and Sullivan Counties is chosen for the master wheel, only one out of 4.5 voters from the Overlapping Counties is picked (the "Disproportionate Proration"). Martin Aff. ¶ 37.

Third, due to a technical error, the zip codes of some voters from Dutchess, Orange, Putnam, and Sullivan Counties who use a mailing address different from their voting address are not listed on the master wheel. Id. ¶¶ 41–42. As a result, some voters did not receive Eligibility Questionnaires, and, therefore, were not considered for inclusion in the White Plains Division qualified wheel. Id. ¶¶ 42–43.

II. Southern District of New York Demographics

The Southern District's demographic makeup is not uniform across the divisions. In the Manhattan Division, the jury-eligible population includes 20.92 percent Black or African American ("Black") individuals, and 28.06 percent Hispanic or Latino ("Latinx") individuals.² Martin Aff. ¶ 20. In the White Plains Division, however, the jury-eligible population is only 12.45 percent Black and 14.12 percent Latinx. Id. ¶ 21.

Within the White Plains Division, the counties also have a varied racial makeup. The Overlapping Counties’ jury-eligible population is 13.71 percent Black and 15.20 percent Latinx, as compared to 10.30 percent and 12.29 percent, respectively, in the other three counties. Id. ¶ 40.

Defendant's grand jury was chosen from the White Plains Division's master and qualified wheels. The master wheel in this instance (the "Master Wheel") was drawn from the November 1, 2016 voter registration lists, and was 11.20 percent Black and 12.97 percent Latinx. Siskin Rep. ¶ 28. The qualified wheel formed from the Master Wheel (the "Qualified Wheel") was refilled on February 7, 2017, and was 8.76 percent Black and 10.48 percent Latinx. Martin Aff. ¶ 55. This data is summarized in the chart below.

III. Defendant's Indictment and Procedural History

On June 30, 2020, a grand jury sitting in the White Plains courthouse returned an indictment alleging that on June 23, 2020, Defendant possessed ammunition as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1), in connection with a shooting in the Bronx. Indictment, ECF No. 2; Gov't Opp'n at 1, ECF No. 28. Pursuant to the Rules for the Division of Business Among District Judges for the Southern District of New York, which determine where cases are heard based on the location of the offense, Defendant's case was designated for Manhattan and assigned to this Court. Gov't Opp'n at 1; Local Rules of the United States District Court for the Southern and Eastern Districts of New York 117 (Oct. 29, 2018), https://www.nysd.uscourts.gov/sites/default/files/local_rules/rules-2018-10-29.pdf.

Defendant now moves to dismiss the indictment, arguing that his grand jury did not represent a fair cross section of the community, in violation of the Sixth Amendment and the equal protection clause of the Fifth Amendment, and that the grand jury selection process violated the JSSA. Def. Mot.

DISCUSSION

I. Defendant's Objections to the Jury Selection Process

Defendant objects to seven jury selection processes, which he contends caused his grand jury to be unrepresentative, in violation of the Constitution and the JSSA.³

First, he challenges the Government's decision to seek an indictment from a White Plains Division grand jury. Def. Mem. at 11–12. Defendant argues that because of the differing racial makeup of each division, this choice led to the Master and Qualified Wheels being unrepresentative of Black and Latinx individuals, as compared to the Manhattan Division population. Id.

Second, Defendant objects to the use of voter registration lists as the sole source for the Master Wheel, alleging that because Black and Latinx people register to vote at a lower rate, they are underrepresented on the voter registration lists as compared to their presence in the White Plains Division population. Id. at 14; Martin Aff. ¶ 79.

Third, Defendant argues that because "there is reason to believe" that inactive voters in Orange, Putnam, Rockland, Sullivan, and Westchester Counties are disproportionately Black and Latinx, the Inactive Voter Exclusion creates jury wheels that have disproportionately fewer Black and Latinx individuals. Def. Mem. at 14–15.

Fourth, Defendant challenges the Jury Plan's refilling of the master wheels every four years. Id. at 13. This practice excludes people who reach the eligible voting age of eighteen or move into the district during the years between the refilling of the wheel. Defendant claims that in the White Plains Division, individuals ages eighteen to twenty—who are omitted from the Master Wheel under the current practice—are disproportionately Black and Latinx, and, therefore, refilling at this rate results in underrepresentation of these...