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UNITED STATES v. KENNY

April 27, 1995

UNITED STATES OF AMERICA, against FRANK KENNY, CHRISTOPHER PERES, a/k/a "Christopher Norman," MICHAEL VICTOR, and LOUIS DECIANTIS, Defendants.


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 In the above-referenced prosecution, Defendants are charged with conspiracy to import, distribute, and possess with intent to distribute marihuana; distribution of marihuana; and possession with intent to distribute marihuana. Defendants Kenny, Peres, and Deciantis are also charged with certain weapons violations. Currently before the Court are various motions for pre-trial relief, including dismissal of the Indictment, severance, particularization, suppression of certain evidence, and discovery. Each of these categories of motions is addressed separately below.

 Discussion

 I. Motions to Dismiss

 Defendants have moved to dismiss the Indictment on three grounds: first, that the plan by which juries are selected in this District violates their constitutional and statutory rights; secondly, that the Government engaged in outrageous conduct that should bar further prosecution; and, finally, that the Indictment was based upon insufficient evidence. For the reasons set forth below, each of these motions is denied.

 A. Jury Selection Plan

 The Court first considers Defendants' motions to dismiss the Indictment on the ground that the Eastern District Jury Selection Plan violates the Fifth and Sixth Amendments of the United States Constitution, as well as the Jury Selection and Service Act (the "Act"), 28 U.S.C. §§ 1861-69. *fn1"

 Essentially, Defendants contend that this Plan violates the Constitution and the Act, in that

 
it overrepresents the predominantly white suburban population in the jury selection process by requiring Long Island residents to serve at both the Brooklyn and Long Island courthouses, while it underrepresents the District's non-white urban population by excluding New York City residents from sitting at the Long Island courthouses. In effect, the Plan "doublecounts" the District's largely white suburban population in the District's jury selection process, and therefore undercounts the non-white population.

 (Victor Mem. at 4.) At least two courts in the Eastern District have rejected similar challenges to the Eastern District Plan, see United States v. Garces, 849 F. Supp. 852 (E.D.N.Y. 1994); United States v. Macchia, 844 F. Supp. 920 (E.D.N.Y. 1994), and, in keeping with the rationale of these cases, the Court likewise denies Defendants' challenges to the Plan.

 1. Sixth Amendment

 First, the Court considers the Defendants' contention that the Plan violates the "fair cross-section" requirement of the Sixth Amendment. To establish a prima facie case that a jury selection process violates this requirement, a defendant must demonstrate that: (1) the allegedly excluded group is distinctive; (2) representation of this group in the venire is not fair and reasonable in relation to the population in the community; and (3) the underrepresentation is due to a systematic exclusion in the process. Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979).

 Defendants have clearly satisfied the first requirement of this test, in that the groups claimed to be excluded, viz. blacks and Hispanics, are each distinctive in the community. See United States v. Jackman, 46 F.3d 1240, 1246 (2d Cir. 1995). The Court is not convinced, however, that the second requirement has also been satisfied, for Defendants have not demonstrated that the representation of these distinctive groups in the venire was unreasonable "in relation to the population in the community." Duren, 439 U.S. at 364 (emphasis added).

 Although the Duren court did not clearly define the term "community," there appears to be no dispute that, generally, the term refers to the district -- or division, when a district has been so divided -- where the trial is to be held. (See Victor Mem. at 15.) Applying this general rule to the facts of this case, it would appear that the Long Island Division -- which includes only Nassau and Suffolk counties -- is the relevant "community" for purposes of jury selection.

 Defendants contend, however, that when the manner in which a division is drawn violates legislative intent or the strictures of the Constitution, such a division cannot be regarded as a "community" for juror selection purposes. (See id. citing Davis v. Warden, Joliet Correctional Institution at Stateville, 867 F.2d 1003, 1008-13 (7th Cir.), cert. denied, 439 U.S. 920 (1989).) More specifically, Defendants contend that creation of a Long Island Division that permits the "doublecounting" of Nassau and Suffolk county residents violates both legislative intent and the Constitution. As such, Defendants contend, the Long Island Division cannot represent a "community" for purposes of the Duren test; and in the absence of a properly drawn division, the only "community" from which jurors may be drawn is the district as a whole. (Id. at 14-15.)

 To properly assess this claim, the Court must determine whether the manner in which the Long Island Division has been drawn violates either legislative intent or constitutional requirements. First, the Court examines Defendants' contention that the creation of the Long Island Division violates legislative intent, in that the Division is not authorized by the Jury Selection and Service Act. In support of this position, Defendants cite two sections of the Act. First, Defendants rely upon the Act's definition of "division":

 
in a judicial district where there are no statutory divisions, ["division" shall mean] such counties . . . surrounding the places where court is held as the district court plan shall determine: Provided, That each county . . . shall be included in some such division.

 28 U.S.C. § 1869(e). Secondly, Defendants rely upon the "proportionality requirement" of the Act, which provides, in relevant part, that the procedures for selecting jurors

 
shall ensure that each county . . . within the . . . division is substantially proportionally represented in the master jury wheel for that judicial district, division, or combination of divisions.

 Id. at § 1863(b)(3).

 Defendants assert that these Sections, when read in conjunction, "strongly imply that counties are not to be overincluded (i.e., simultaneously included in more than one division)." (Victor Mem. at 15-16.) The Court, however, finds no such requirement in these Sections. Instead, the Act merely requires that individuals residing in each of the counties in a district have an opportunity to serve as jurors, and that, within each juror wheel, there is proportional representation of the counties included within that wheel. Defendants have not demonstrated that these requirements are violated by the creation of the Long Island Division, for Defendants concede that each of the District's counties is represented in at least one of the District's wheels, and Defendants do not contend that either of two counties that are included within the Long Island Division are disproportionately represented. As such, Defendants' statutory argument must fail.

 The Court also rejects Defendants' argument that the manner in which the Division is drawn violates "constitutional principles of fairness and inclusiveness." (Victor Mem. at 15.) As the Garces and Macchia courts correctly note, there is no constitutional requirement that a jury be drawn from an entire judicial district. Garces, 849 F. Supp. at 857, 860 (collecting cases); Macchia, 844 F. Supp. at 921; see also Ruthenberg v. United States, 245 U.S. 480, 482, 62 L. Ed. 414, 38 S. Ct. 168 (1918). Indeed, courts have consistently held that, so long as a division is not "gerrymandered," it will withstand constitutional scrutiny, even if the division differs from the district as a whole in terms of its racial or socio-economic composition. United States v. Gottfried, 165 F.2d 360, 364 (2d Cir.) ("There are probably no districts in the Union, which can be divided without disclosing in the sections different racial, religious, political, social or economic percentages. To demand that they shall not, would be a fantastic pedantry which would serve no purpose . . . ."), cert. denied, 333 U.S. 860, 92 L. Ed. 1139, 68 S. Ct. 738 (1948); see also United States v. Young, 618 F.2d 1281, 1287-88 (8th Cir.), cert. denied, 449 U.S. 844, 66 L. Ed. 2d 52, 101 S. Ct. 126 (1980); Zicarelli v. Dietz, 633 F.2d 312, 316-18 (3d Cir. 1980), cert. denied, 449 U.S. 1083, 66 L. Ed. 2d 807, 101 S. Ct. 868 (1981). As the Long Island Division is merely drawn along county lines in the proximity of the Long Island courthouses, and is not "gerrymandered" in any fashion, see United States v. Pleier, 849 F. Supp. 1321, 1326 (D. Alaska 1994); United States v. Irurita-Ramirez, 838 F. Supp. 1385, 1387 (C.D. Cal. 1993), Defendants' constitutional argument likewise fails. Defendants have thus failed to establish the second requirement of the Duren "fair cross-section" test, *fn2" and, as such, their motions to dismiss the Indictment on Sixth Amendment grounds is denied. *fn3"

 2. Fifth Amendment

 The Court next considers Defendants' contention that the Plan violates the strictures of the Fifth Amendment. To establish a prima facie case that a jury selection process violates the equal protection clause of the Fifth Amendment, a defendant must demonstrate that a cognizable group is substantially underrepresented and that the selection process is not racially neutral. Alston v. Manson, 791 F.2d 255, 257 (2d Cir. 1986) (citing Castaneda v. Partida, 430 U.S. 482, 494-95, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977)), cert. denied, 479 U.S. 1084 (1987). To establish a "substantial underrepresentation," a defendant must compare the proportion of the cognizable group "in the total population" with the proportion of such group that was called to serve as jurors. Castaneda, 430 U.S. at 494.

 As noted above, there is no constitutional right to a jury drawn from an entire district. See supra at 7. Therefore, the "total population" that must be used to determine whether there is a substantial underrepresentation is the population of those counties in the Long Island Division, rather than the population in the District as a whole. See Macchia, 844 F. Supp. at 921; Garces, 849 F. Supp. at 856-58; see also Irurita-Ramirez, 838 F. Supp. at 1387. Defendants have failed to allege that any cognizable groups in the Long Island Division's grand jury pool are substantially underrepresented as compared to their proportion in Nassau and Suffolk ...


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