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UNITED STATES v. GARCES

April 12, 1994

UNITED STATES OF AMERICA,
v.
ALVARO GARCES, a/k/a "Alpert Sanchez," EUGENIO MELO, a/k/a "Tony", ARMANDO MELO, FERNANDO MELO, JORGE BUSTAMANTE, ADOLPHO GALLEGO, HAROLD LOPEZ, JOSE SANCHEZ and ROSA ELENA REINA, Defendants.



The opinion of the court was delivered by: THOMAS C. PLATT

 PLATT, Chief Judge.

 Defendant Alvaro Garces, joined by defendants Eugenio Melo, Rosa Elena Reina and Jose Sanchez, move this Court to (1) transfer this case from the United States District Courthouse in Uniondale, New York to the Courthouse in Brooklyn, New York pursuant to the Court's Guidelines for the Division of Business among District Judges 50.1(d)(3) and 50.2(f), *fn1" and on the additional grounds that the rules for empaneling the trial jury veniremen at the Uniondale Courthouse violate the Fifth and Sixth Amendments of the United States Constitution and the Jury Selection and Service Act (28 U.S.C. §§ 1861-1969 (1988)), or (2) select the petit jury in this case from a Master List which consists of people from all five Counties in the Eastern District. For the reasons stated herein, the Court denies defendants' motions in all respects.

 BACKGROUND

 Defendant Alvaro Garces was arrested on August 27, 1993 on the basis of a criminal complaint sworn out by Stephen Clarke, a Special Agent of the Drug Enforcement Agency. This complaint alleges that the defendants Alvaro Garces and Eugenio Melo did knowingly and intentionally possess with the intent to distribute heroin and cocaine. See Defendant Garces' Exhibit G. *fn2" An indictment was returned by a grand jury sitting in Uniondale against Alvaro Garces on September 9, 1993. Pursuant to a complaint dated September 11, 1993 by Louis Isnardi of the Long Island Drug Enforcement Task Force, defendants Jorge Bustamante, Adolpho Gallego, Harold Lopez, Jose Sanchez and Rosa Elena Reina were arrested for alleged charges that they did knowingly and intentionally conspire with the intent to distribute cocaine within the Eastern District of New York. This complaint alleges a scheme in which drugs were concealed in the roofs of motor homes and driven throughout California, New York and elsewhere to be distributed. See Defendant Garces' Exhibit F.

 The two-count Indictment which initiated this case was filed on September 9, 1993 and charges that between July, 1992 and August 27, 1993, defendant Alvaro Garces, Eugenio Melo and others did conspire to distribute and to possess with the intent to distribute heroin and cocaine, and that on or about July 27, 1992, within the Eastern District and elsewhere, defendants Alvaro Garces and Eugenio Melo did possess with intent to distribute heroin. The Criminal Case Information Sheet filed with the Indictment indicates that this matter arose within Nassau and Queens. See Defendant Garces' Exhibit E: "Criminal Case Information Sheet."

 Subsequently, on September 30, 1993, a Superseding Indictment, consisting of four counts, was filed in this case which added the remainder of the defendants and additional counts which alleged that all defendants conspired to distribute and possess with intent to distribute heroin and cocaine between October, 1989 and August 27, 1993; that defendants Alvaro Garces, Eugenio Melo and Armando Melo did possess with intent to distribute heroin on or about July 27, 1992; and, that defendants Eugenio Melo, Armando Melo and Fernando Melo did possess with the intent to distribute heroin on or about March 4, 1993. See Defendant Garces' Exhibit A.

 On October 15, 1993, defendant Alvaro Garces moved to transfer this case to the Brooklyn Courthouse or to have the jury venire chosen from a Master List consisting of jurors from all five Counties that constitute the Eastern District of New York. Defendants Eugenio Melo, Rosa Elena Reina and Jose Sanchez joined in this motion on October 22, 1993, December 1, 1993, and November 15, 1993, respectively.

 DISCUSSION

 1. Challenges to the Jury Pool Plan

 As initiated some 15 or 16 years ago, modified on May 21, 1985, (and approved by the Judicial Council), and surviving through a modification of 1988 which was never implemented and a modification of June 15, 1993, the Jury Selection Plan of the Eastern District of New York provides that a Master Jury Wheel for the Brooklyn Courthouse shall utilize the names of persons from all five Counties of the Eastern District, and that a Long Island Division, comprised of the courthouses in Uniondale and Hauppauge, shall utilize the names of persons from Nassau and Suffolk Counties. See Def. Garces' Exh. B: "Jury Selection Plan," § 5. This last Plan, modifying the 1985 Plan, was adopted by the Eastern District Board of Judges on June 15, 1993, (see Def. Garces' Exh. C), and was approved by the Second Circuit Judicial Council on June 22, 1993.

 Initially, defendants argue for a jury pool called from the entire District on the basis that the Jury Selection Plan in the Eastern District of New York violates the Fifth and Sixth Amendments and the Jury Selection and Service Act, 28 U.S.C. §§ 1861-1969, since jurors for the Long Island Courthouses are chosen from Nassau and Suffolk Counties while jurors for the Brooklyn Courthouse are chosen from all five Counties of the District. Defendants claim that there is an "unacceptably low proportion of Black and Hispanic jurors in the Long Island Division," (Affidavit of Bert Nisonoff, Esq., p. 3), making the jury pools in Uniondale and Hauppauge unrepresentative of the District as a whole.

 Secondly, defendants move pursuant to the Guidelines of the Eastern District of New York, 50.1 (d)(3) and 50.2(f) for transfer of this case to Brooklyn on the basis that the crimes primarily "occurred" there.

 A. Fifth Amendment Challenge

 Defendants argue that the Jury Plan for the Eastern District of New York violates the equal protection clause of the Fifth Amendment since the Plan chooses jurors for the Brooklyn Courthouse from all five Counties of the District, while those jurors for the Uniondale and Hauppauge Courthouses *fn3" are chosen only from Nassau and Suffolk Counties. Defendants argue that fewer minorities live in Nassau and Suffolk Counties than Brooklyn, Queens and Richmond Counties and therefore a jury pool emanating from only Nassau and Suffolk violates the equal protection clause of the Fifth Amendment. *fn4" In support of this, defendants have submitted statistics printed in The New York Times,5 which, when added together by the defendants, indicate that Hispanics represent 14.35% of the population of the total District, while only 6.33% of the population in Nassau and Suffolk, and that the Black population in the total District represents 20.99%, and only 7.43% of the Nassau and Suffolk populations. *fn6" See Def. Garces' Memorandum in Support, at 4 and Exh. D.

 In order to establish a prima facie case for a violation of the Fifth Amendment, one must show (1) that the group involved is distinct or cognizable; (2) a substantial underrepresentation of the group when compared with the total population; and, (3) that the selection procedure employed is susceptible of abuse or not racially neutral. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977); Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986), cert. denied, 479 U.S. 1084, 107 S. Ct. 1285, 94 L. Ed. 2d 143 (1987). Once this prima ...


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