United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE
above-named defendants are scheduled to proceed to trial in
this matter commencing on January 16, 2018. Defendant Sean
McIndoo has filed a motion requesting various relief in
connection with the empaneling of a jury in this case. (Dkt.
915). The Court addressed the motion at a pretrial conference
conducted on December 12, 2017, indicating, for the reasons
stated on the record, that the requested relief would be
granted in part and denied in part. The purpose of this
Decision and Order is to memorialize the Court's findings
with respect to Mr. McIndoo's discovery requests for
certain materials regarding the jury pool.
Authority for Disclosure of Jury Selection
Jury Selection and Service Act of 1968, 28
U.S.C. §§ 1861 et seq. ("JSSA")
provides that "all litigants in Federal courts entitled
to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the
community in the district. . . wherein the court
convenes." 28 U.S.C. § 1861. It requires district
courts to devise a plan for random jury selection that
ensures the random selection of a fair cross section of the
community. Id. § 1863(b)(3).
1867 specifies the procedures for challenging jury selection
procedures under the JSSA. See Id. §1867.
Section 1867(f) provides that:
The contents of records or papers used by the jury commission
or clerk in connection with the jury selection process shall
not be disclosed, except pursuant to the district court plan
or as may be necessary in the preparation or presentation of
a motion under subsection (a), (b), or (c) of this section,
until after the master jury wheel has been emptied and
refilled pursuant to section 1863(b)(4) of this title and all
persons selected to serve as jurors before the master wheel
was emptied have completed such service. The parties in a
case shall be allowed to inspect, reproduce, and copy such
records or papers at all reasonable times during the
preparation and pendency of such a motion. Any person who
discloses the contents of any record or paper in violation of
this subsection may be fined not more than $1, 000 or
imprisoned not more than one year, or both.
Id. § 1867(f).
Test v. United States, 420 U.S. 28 (1975), the
Supreme Court stated that § 1867(f) "makes clear
that a litigant has essentially an unqualified right to
inspect jury lists" and "grants access in order to
aid parties in the 'preparation' of motions
challenging jury-selection procedures." Id. at
30. The Supreme Court reasoned that, "without
inspection, a party almost invariably would be unable to
determine whether he has a potentially meritorious jury
challenge, " so, as a result, "an unqualified right
to inspection is required not only by the plain text of the
statute, but also by the statute's overall purpose."
"[b]ecause the right of access to jury selection records
is 'unqualified, ' a district court may not premise
the grant or denial of a motion to inspect upon a showing of
probable success on the merits of a challenge to the jury
selection provisions." United States v.
Royal, 100 F.3d 1019, 1025 (1st Cir. 1996); see also
United States v. Potts, 538 Fed.Appx. 434, 437 (5th Cir.
2013) (holding that, because right to inspect is unqualified,
no prima facie case of defective jury selection is
necessary); United States v. Savage, Criminal Action
Nos. 07-550-03, 07-550-04, 07-550-05, 07-550-06, 2012 WL
4616099, at *5 (E.D. Pa. Oct. 2, 2012) ("A defendant
need only allege that he is preparing a motion to challenge
the jury selection process in order to avail himself of the
right of access to jury selection records." (internal
quotation marks and citation omitted)).
the right to access material under the JSSA is not
unfettered. See United States v. Gotti, No. S8
02CR743(RCC), 2004 WL 2274712, at *6 (S.D.N.Y. Oct. 7, 2004);
accord United States v. Davis, No. 06 CR. 911 (LBS),
2009 WL 637164, at *15-16 (S.D.N.Y. Mar. 11, 2009) (observing
that "there is no absolute right of access to all
materials relating to grand jury selection" and
disclosing only "the District's Master Plan for jury
selection"). A defendant's "unqualified right
to records or papers encompasses only such data as [a
defendant] needs to challenge the jury selection
process." United States v. O'Reilly, No.
05-CR-80025, 2008 WL 115537, at *3 (E.D. Mich. Jan. 10,
2008), order clarified on reconsideration, No.
05-80025, 2008 WL 283999 (E.D. Mich. Feb. 1, 2008). In other
words, "[t]he JSSA is not a license for litigants to
rummage at will through all jury-related records maintained
by the Clerk of Court." Savage, 2012 WL
4616099, at *5. See also United States v. Miller,
116 F.3d 641, 658 (2d Cir. 1997) (§ 1867(f) requires
access "only to records and papers already in existence,
" but "nothing . . . entitles defendants to require
the jury administrator to analyze data on their
present case, Mr. McIndoo has indicated that disclosure of
certain materials related to jury selection is necessary for
the preparation of a motion challenging the jury selection
process. (See Dkt. 915 at 6-7). That is all that is
required to obtain access to materials under § 1867(f).
See, e.g., Royal, 100 F.3d at 1025. However, that
does not mean that Mr. McIndoo is entitled to all the
information that he seeks. See, e.g., Gotti, 2004 WL
2274712, at *6. At the appearance on December 12, 2017, Mr.
McIndoo's counsel refined his requests. Each of the
requests is addressed below.
Copies of any screening or qualification questionnaires or
biographical questionnaires to be sent to prospective jurors
or made available on "eJUROR" through the
court's web site.
McIndoo's counsel confirmed that he is seeking the form
of the questionnaire that is sent to prospective jurors. The
jury administrator sends out only one questionnaire, and the
form of that questionnaire is attached to Mr. McIndoo's
motion. (Dkt. ...