The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.
Defendant Jose Reyes ("Reyes") has moved for a dismissal of the indictment on the ground that the grand jury which returned it was not selected accordance with the constitution and laws of the United States. Specifically, Reyes argues that the grand jury was selected in violation of the "impartial jury" component of the Sixth Amendment, the equal protection components of the Fifth and Fourteenth Amendments, and the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq. ("Jury Act"). This claim is based on Reyes' contention that blacks and Hispanics are unconstitutionally underrepresented in the pool from which the grand jury was drawn. Defendant Thomas Rodriguez has joined in the motion.
A hearing was held on April 24 and 26, 1996. At the close of the hearing, I denied the motion. This opinion sets forth the reasons for my decision.
I. Selection of Jurors in This District
A. Construction of Master Jury Wheels
Lists of registered voters in eight New York counties are the sole source of potential jurors in the Southern District of New York. See Amended Plan for the Random Selection of Grand and Petit Jurors in the United States District Court for the Southern District of New York (hereinafter "Jury Plan"), Article III.A.
Potential jurors are chosen at random from the approximately 2.4 million registered voters. Id., see also Transcript of Hearing held April 24, 1996 ("Tr.") at 7. According to the testimony of Robert Rogers, Jury Administrator, this number greatly exceeds the number of jurors needed by this district in a four-year period. Therefore, twenty percent of the registered voters from each county are selected by choosing every fifth voter beginning with a randomly selected starting number. Tr. at 7-8.
From these names, two master jury wheels are constructed: one for the Manhattan courthouse and one for the White Plains courthouse. For the master wheels, jurors from each county are drawn from that county's voter registration list in the same proportion to the total number of jurors drawn as that county's number of registered voters bears to the total number of registered voters for all eight counties.
Jury Plan, Art. III.A.1., III.B. The Manhattan master wheel (also called the Foley Square division) contains names drawn from the counties of New York, Bronx, Westchester, Putnam, and Rockland. The White Plains master wheel contains names from Westchester, Putnam, Rockland, Orange, Sullivan, and Dutchess counties. For the three overlapping counties (Westchester, Putnam and Rockland), the names are apportioned as follows: out of every ten names drawn from those counties, nine go to the Manhattan wheel and one goes to the White Plains wheel. Tr. at 11; see also Jury Plan, Art. IV.B.
According to the Jury Plan, the "master jury wheels shall be emptied and refilled by not later than September 1 following the date of each Presidential Election." Id. Thus the current master jury wheel was most recently rebuilt between November 1992 and September 1993. See Tr. at 29-30.
B. Construction of Qualified Jury Wheels
II. Standard in the Second Circuit
A. Equal Protection Claim
This Circuit has adopted the Supreme Court's articulation of "the test for determining when a criminal defendant has shown that grand jury selection procedures violate the equal protection clause." United States v. Biaggi, 680 F. Supp. 641, 648 (S.D.N.Y. 1988) (citing Castaneda v. Partida, 430 U.S. 482, 494, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977)), aff'd in relevant part, 909 F.2d 662 (2d Cir. 1990), cert. denied, 499 U.S. 904, 113 L. Ed. 2d 213, 111 S. Ct. 1102, (1991). Under that test, three elements are required to prove a prima facie case of discrimination in jury selection: (1) the group alleged to be discriminated against must be a recognizable, distinct class; (2) the degree of underrepresentation must be proved over a significant time period; and (3) the selection procedure must be susceptible to abuse or racially non-neutral. Castaneda, 430 U.S. at 494. In upholding the Biaggi district court's dismissal of the Fifth Amendment claim the circuit court reiterated the district court's statement that the defendant "made no claim that blacks or Hispanics have been hindered in registering to vote. They have simply chosen not to register in the same proportion as whites." Biaggi, 909 F.2d at 677. The court further noted that "registering to vote is a simple task of minimal inconvenience, viewed by many as an obligation of citizenship." Id. It is clear from Biaggi that in this circuit, a Fifth Amendment challenge to the composition of a jury pool, based on the equal protection component of that amendment's due process clause, will not stand absent evidence that an underrepresented group has been hindered in registering to vote.
1. Standard enunciated by Supreme Court and Biaggi
The Supreme Court has interpreted the Sixth Amendment's guarantee of "a speedy and public trial, by an impartial jury" to entitle defendants in criminal cases to juries chosen from panels that represent a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 526-29, 533, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). This requirement applies to grand jury panels as well. See Castaneda, 430 U.S. at 493-94 (claims of discrimination in the selection of grand jurors are governed by the same principles applicable to claims of equal protection violations in the selection of jury pools and venires). A defendant attempting to establish a prima facie violation of this requirement must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979); see also United States v. Jackman, 46 F.3d 1240, 1245-46 (2d Cir. 1995) (citing Duren).
The third prong of this test is usually the most difficult to establish. In this circuit, that element may be satisfied by showing that substantial underrepresentation of distinctive groups occurred over a significant time period. Biaggi, 680 F. Supp. at 654. Discriminatory intent is not an element of a Sixth Amendment fair cross-section claim. Jackman, 46 F.3d at 1246; Biaggi, 909 F.2d at 677-78. Further, the "absolute numbers" approach is valid in this circuit: after determining a percentage disparity, the court evaluates the number of members of an underrepresented group that would have to be added to a 60-person venire in order for that venire to properly reflect the representation of that group in the community.
The court must determine whether these numbers are so great as to amount to a violation of the fair cross-section requirement. Biaggi, 680 F. Supp. at 655.
2. Current status of Second Circuit law
The law of the Second Circuit on this issue is not as clear as it once was. Recently, in Schanbarger v. Macy, 77 F.3d 1424 (2d Cir. 1996) (per curiam), the Second Circuit held that
absent positive evidence that some groups have been hindered in attempting to register to vote, a jury venire drawn from voter registration lists violates neither the Sixth Amendment's fair cross-section requirement nor the Fifth Amendment's guarantee of Equal Protection.
77 F.3d at 1424. The court then cited two opinions from other circuits.
In the first case, United States v. Ashley, 54 F.3d 311 (7th Cir.), cert. denied, 133 L. Ed. 2d 161, 116 S. Ct. 232 (1995), the Seventh Circuit rejected a challenge to the composition of a jury pool on the ground that using lists of registered voters as the sole source of the pool resulted in an underrepresentation of blacks. The Ashley court found that the defendants had not established the third element (that the alleged disparity was the result of any systematic exclusion) and approved the use of "voter registration lists as the source of names for jury venires in this Circuit." Ashley, 54 F.3d at 314. In the other case cited in Schanbarger, the Fourth Circuit examined a multitude of cases and concluded that the authorities "categorically establish that there is no violation of the jury cross-section requirement when there is merely underrepresentation of a cognizable class by reason of failure to register, when that right is fully open." United States v. Cecil, 836 F.2d 1431, 1448 (4th Cir.), cert. denied, 487 U.S. 1205, 101 L. Ed. 2d 883, 108 S. Ct. 2846 (1988). ...