to appear on the jury panel in order to reflect the percentage of the group in the total population eligible for jury service."') (emphasis added).
Not every person who lives within a judicial district is eligible for jury service.
The figures provided by defendants fail to account for this subgroup, and by submitting numbers which reflect the total number of the group in question, rather than the numbers of that group who are eligible to serve, defendants dramatically increase the proportion of minorities in the community from which the comparison is drawn. As a result, defendants have failed to show that the proportion of Blacks and Hispanics in a typical venire is unfair and unreasonable, as required by the Duren test.
Even were defendants able to show this, they fail to meet the third prong of the analysis. This examines whether the underrepresentation is due to a "systematic exclusion." In Osorio, the Court found that the blatant absence of residents from two of the largest towns in the District, which together represented two-thirds of the minority population in the district, amounted to "systematic exclusion." Osorio, at 979. The Alston Court found "systematic exclusion" since "the statute [Connecticut General Statute § 51-220] operated directly to exclude Blacks from the jury array." Alston, 621 F. Supp. 992, 996 (D.C.Conn. 1985). Other examples include the findings in Taylor v. Louisiana, 95 S. Ct. at 698, 695 (women were systematically excluded since they had to file a written declaration of their desire to be subject to jury service before they could be selected); and Thiel v. Southern Pacific Co., 328 U.S. 217, 221-224, 66 S. Ct. 984, 986-87, 90 L. Ed. 1181, (1946) (systematic exclusion occurred since the Clerk of the Court and the Jury Commissioner testified that they deliberately eliminated all persons earning a daily wage from the jury pool). Yet, statistical disparity does not rise to "systematic exclusion." United States v. Test, 550 F.2d 577, 587 (10th Cir. 1976).
In the present case, there is no "systematic exclusion." In the Eastern District of New York, voter registration lists, supplemented with lists from the Department of Motor Vehicles, provide the sources for jury names. From these, names from each County are randomly selected in numbers proportionate to the total number of source list names in the District to constitute the Master Jury Wheel for the entire District, and names from Nassau and Suffolk Counties are drawn in a manner proportionate to the total names in the Long Island Division to constitute that Master Jury Wheel. The names on these lists receive forms to complete to determine their qualifications for jury service. See Def. Garces' Exh. B: "Jury Selection Plan--Eastern District," §§ 4-6.
This Plan does not evince deliberate exclusion of any particular group as occurred in the cases cited above. Indeed, as stated earlier, the purpose of creating the Long Island Division was to accommodate the transportation problems of citizens of the District who live in Counties that are unaccessible to either the Uniondale or Hauppauge Courthouses by public transportation. The Plan does not operate to limit or systematically exclude the participation of minority populations in the District and defendants have failed to show otherwise. As a result, defendants have failed to make a prima facie case that the Jury Plan for the Eastern District of New York violates the Sixth Amendment.
3. Jury Selection and Service Act
This statute requires that each Federal jury plan be effected so that a jury be a fair cross section of the community and that no citizen be prohibited from jury service due to discrimination.
Without elaboration, defendants argue that the Plan violates this statute since it creates a division which is not representative of the whole population of the District.
The Second Circuit has held that although not completely synonymous, the mandates of this statute are parallel to those of the Sixth Amendment. "The Second Circuit's opinions interpreting the Jury Act closely resemble the sixth amendment cases discussed above." Biaggi, 680 F. Supp. at 655, 655-657, aff'd 909 F.2d 662 (2d Cir. 1990); see LaChance, 788 F.2d at 864; United States v. Test, 550 F.2d at 584; United States v. Gerena, 677 F. Supp. 1266, 1272 (D.Conn. 1987). See also Taylor, 95 S. Ct. at 697 (the Jury Selection and Service Act has a "similar thrust" to the Sixth Amendment). "The court's finding for sixth amendment purposes that the underrepresentation demonstrated here is legally insignificant holds as well for the Jury Act claim." Biaggi, 680 F. Supp. at 657. So too is the case here.
2. Guidelines for the Eastern District
Defendants' second argument is that this case has been inappropriately designated a "Long Island case" and therefore should be transferred to Brooklyn. Initially, the Court takes this opportunity to explain the purpose and parameters of the Court's administrative rules. Defendants mistakenly assert that these local administrative rules entitle them to make arguments regarding the assignment of cases, yet this "entitlement" is explicitly rejected by the rules themselves. Titled "Guidelines for the Division of Business, United States District Court, Eastern District of New York, Adopted Pursuant to 28 U.S.C. § 137," the heading then states:
These rules are adopted for the internal management of the case load of the court and shall not be deemed to vest any rights in litigants or their attorneys and shall be subject to such amendments from time to time as shall be approved by the court.
While 50.2(f) permits that "any objection by a party to designation of a judge or to a place of trial shall be made by letter or motion to the judge assigned. . .," this Court reiterates that these rules are not intended to give the parties a right to litigate where a particular case will be tried, but merely provide the guidelines by which the Eastern District administratively handles and assigns its cases.
Again, as stated above, the Court emphasizes the absence of any right in litigants to use these rules to challenge how the District chooses to assign its cases and the Court affirms the designation of this case as one for the Uniondale Courthouse. As stated in 50.1(d)(1), "a criminal case shall be designated a 'Long Island case' if the crime was allegedly committed wholly or in substantial part in Nassau or Suffolk County." The crimes alleged in this case have allegedly been committed in Nassau and Suffolk, which substantiates the assignment of the case to the Long Island Courthouse.
The connections to Nassau and Suffolk are that defendant Eugenio Melo lived on Long Island throughout the time period in question and allegedly used his home telephone to conduct affairs of the conspiracy, and that defendant Alvaro Garces lived in Nassau County for a period of time when he participated in the conspiracy. Defendant Garces disputes that he ever lived in Malverne, and asserts that he always lived in Queens during the period set forth in the Indictment. Nevertheless, the Government also alleges that the evidence will show that various Long Island locations were used to conduct the affairs of the organization and that defendant Melo met with customers on Long Island.
As the rules themselves state, a case is designated as a "Long Island case" if the crime was allegedly committed in whole or in part in Nassau or Suffolk County. While some of the concrete details such as registration of vehicles rests in Queens and Brooklyn, the Government also alleges that the organization or conspiracy was controlled from Long Island and that many of the transactions and sales took place on Long Island. In fact, the Complaint in the case was drafted by a Task Force Officer assigned to the Long Island Drug Enforcement Task Force. That his investigation led to the various warrants in this case is further evidence that this case involves crimes "committed in Nassau and Suffolk" and that this has been properly designated as a "Long Island case."
As a result, this Court finds that the connections between this case and Nassau and Suffolk Counties represent a valid and appropriate justification for maintaining this case at the Uniondale Courthouse. As this case progresses towards trial, it may be determined that it would be more convenient for all parties involved, including this Court, that this case be tried in a Brooklyn courtroom and the Court reserves the right to make this determination should it become appropriate at a later date. Nevertheless, at this juncture, defendants' motion to transfer to Brooklyn and/or request for a jury pool from the Master List of the Eastern District of New York is hereby denied.
Thomas C. Platt
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
April 12, 1994