United States v. Smith

• Decision Date: 11 February 2022
• Docket Number: CRIMINAL ACTION 19-324 (BAH)
• Parties: UNITED STATES OF AMERICA v. JOSEPH SMITH, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA
v.
JOSEPH SMITH, Defendant.

CRIMINAL ACTION No. 19-324 (BAH)

United States District Court, District of Columbia

February 11, 2022

MEMORANDUM OPINION

BERYL A. HOWELL CHIEF JUDGE

After a seven-day jury trial that began with jury selection on October 18, 2021, defendant was convicted on October 27, 2021, by a jury drawn from the citizens of the District of Columbia, on ten counts of production and possession of child pornography, enticement, and aggravated sexual abuse of a minor, in violation of federal and D.C. law, stemming from a series of incidents involving his step-daughter as she was just entering her teenage years.

Just hours before the start of his trial, defendant filed the pending motion to dismiss his indictment, with briefing completed over the course of the following months. Defendant principally asserts that, because of the disproportionate impact of the COVID-19 pandemic on racial and ethnic minority communities, the jury selection plan used in this District is incapable of providing a jury pool drawn from sources reflecting a fair cross section of the community, as required by the Sixth Amendment and the Jury Selection and Service Act (“JSSA”), 28 U.S.C. § 1861 et seq.

Defendant successfully demonstrates that, at least during the pandemic, Black petit jury pool representation, in particular, falls short of full proportionality with the census-confirmed demographics of the community. His motion brings to light that steps must be considered both to increase Black participation in juries in this District and to improve the Court's internal

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processes in administering the jury pool-and such consideration is already underway. At the same time, however, the factual support garnered for this motion does not provide sufficient reason to dismiss defendant's indictment or provide relief from his validly rendered conviction. For the reasons discussed in detail below, the pending motion must be denied.

I. BACKGROUND

The relevant background for disposition of defendant's pending motion is set out in three broad categories, starting with an overview, from start to finish, of this Court's Jury Selection Plan and the multiple steps involved in the process of seating a jury, followed by details of how this process was implemented in defendant's case and the relevant procedural history.

A. This Court's Jury Selection Plan

This Court maintains, and posts publicly on its website, a Jury Selection Plan outlining the procedures to be followed to assemble a venire of petit jurors for any jury trial at the request of a presiding Judge. See Jury Selection Plan for the United States District Court for the District of Columbia for the Random Selection of Grand and Petit Jurors (“Plan”) (as amended through October 2012).^[1] An overview of the central features of the Plan, as well as the terminology associated with the various phases of jury selection, is helpful in understanding the pending challenge to the venire from which a petit jury was selected for defendant's October 18, 2021 trial.

1. Data Sources for Source List Used to Create Master Jury Wheel

Jury selection for trials in federal court in the District of Columbia (the “District”) begins with the periodic collection-at least once every four years-of three sources of data aimed at

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identifying adult residents of the District: (1) a master list of registered voters provided by the D.C. Board of Elections; (2) a list of persons at least 18 years of age who “hold a driver's license, learner's permit, or valid identification card issued by the D.C. Department of Motor Vehicles” (“DMV”); and (3) a “list of all individuals of the District of Columbia whose income tax forms are filed with the D.C. Department of Finance and Revenue.” Plan ¶¶ B, D. Any person appearing on one of these lists may also appear on either or both of the other two lists. Accordingly, the three lists are “merged” into the “Source List, ” Plan ¶ C, a process that employs the services of an outside vendor to deduplicate instances of individuals appearing in more than one of the underlying data sources.^[2]

The Plan then calls for the “master jury wheel” to be constructed from the “Source List, ” again at least every four years, by electronically drawing a random subset of no less than 1, 000 and no more than 700, 000 entries from the Source List. Plan ¶¶ D, D.1. In recent years, the targeted size of the master jury wheel has been set to 600, 000, below the 700, 000-entry cap provided in the Plan. Although not expressly provided in the Plan, after the master jury wheel is built, the set of 600, 000 entries is periodically updated using a national change-of-address database operated by the U.S. Postal Service for the dual purposes of (a) obtaining the most up-to-date mailing address information available and (b) identifying persons whose names appeared

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on the original data sources used to build the Source List and master jury wheel but since ceased to be residents of the District of Columbia and therefore must be disqualified from service. See Def.'s Second Supp. Mot. Dismiss Indictment Pursuant Fifth & Sixth Amendments & Jury Selection & Service Act (“Def.'s Sur-Reply”), Ex. A, United States v. Lutamila, No. 20-cr-24 (JEB), Testimony of Jury Administrator Regina Larry, Jan. 5, 2022 (“Larry Test.”) at 5:14-23, 12:7-13:6, ECF No. 180-4. Additionally, a vendor database is used to identify deceased persons on the wheel and exclude them from being sent a summons. See Id. at 12:18-21. These two master jury wheel maintenance activities are repeated at least annually.^[3]

2. Random Selection from Master Jury Wheel for Two-Week Pool

From the master jury wheel, the Jury Office periodically draws, at random, a group of names of potential jurors, sized to meet the anticipated needs of upcoming scheduled trials. Plan ¶ E. While the specific frequency is not dictated by the Plan, in practice the Jury Office draws, in advance, a set of potential jurors for a two-week window of trial start dates. Each prospective juror whose name is randomly drawn from the master jury wheel is mailed a summons and a juror qualification questionnaire. Id. The purpose of the questionnaire is to furnish information to the Jury Office necessary to determine whether the respondent should be included in the list of prospective jurors who may potentially be called upon to appear on the day a trial is scheduled to begin. Based on the questionnaire responses, this filtering of the respondents removes from further consideration individuals who are: (1) disqualified from jury service by statute; (2) exempted from service, also by statute; (3) in classes of persons the Plan excuses from

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service and who elect to exercise such excuse; or (4) temporarily excused from service by request. Each of these categories for removal is described more fully below. While both the summons and questionnaire contain cautions about repercussions from failing to respond, no action is taken with respect to persons who fail to respond to the summons.

“Qualifications” to serve take the form of bright-line criteria spelled out in the Plan. Id. ¶ H. These criteria-including such requirements that a juror be a citizen of the United States, can read, write, and understand English, and has not been convicted of a felony (without subsequent restoration of rights)-are materially identical to the qualifications dictated by statute. Compare id., with 28 U.S.C. § 1865(b). Next, certain groups are “exempt”-in other words, “barred”-from jury service, with similar effect as disqualification. See 28 U.S.C. § 1863(b)(6); Plan ¶ H.1. “Exempted” persons include active service members of the U.S. Armed Forces, members of police and fire departments, and certain government officers. 28 U.S.C. § 1863(b)(6); Plan ¶ H.1.

The Plan then sets forth “classes of persons [who] shall be excused from jury service when the individual requests to be excused, ” finding that such service would “entail undue hardship or extreme inconvenience to the members thereof.” Plan ¶ H.2. This provision, too, is directed by statute, 28 U.S.C. § 1863(b)(5), though implementation is largely left to each court to make appropriate findings defining these groups in its plan.^[4] In this District, for example, the Plan excuses, upon request, persons over 70 years of age, and persons “who have served as grand or petit jurors” in this Court in the previous two years. Plan ¶ H.2.

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Finally, the Plan, again consistent with statute, provides that “any person summoned for jury service may be temporarily excused upon a showing of undue hardship or extreme inconvenience.” Plan ¶ H.4 (emphasis added); see also 28 U.S.C. § 1866(c). As implemented, the Court delegates authority to the Clerk's Office to evaluate whether the reason for excuse given by a particular summons respondent is a valid reason to excuse such person from service in a particular qualified two-week pool. Any temporarily excused respondent may still be drawn anew from the master jury wheel at a later date. Plan ¶ H.4.

The result of this process is a “qualified two-week pool” of prospective jurors who:

(1) were randomly drawn from the master jury wheel and mailed a summons and questionnaire; (2) returned the questionnaire; (3) are neither disqualified nor exempt; (4) did not exercise an excuse available as of right; and (5) either did not request a temporary excuse from service or such request was denied.

3. One-Step vs. Two-Step Processes

In developing the “qualified two-week pool, ” the Plan, as outlined above, employs a “one-step procedure.” Plan ¶ E; see United States v. Hsia, 125 F.Supp.2d 6, 9 (D.D.C. 2000) (“As permitted under the Section 1878 of the [JSSA], this district and 22 others employ a one-step jury selection process.”). This means that the determination whether a prospective juror is eligible to serve (and not excused) is...