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United States v. Pirk

United States District Court, W.D. New York

December 18, 2017

UNITED STATES OF AMERICA,
v.
DAVID PIRK, ANDRE JENKINS, a/k/a Little Bear, TIMOTHY ENIX a/k/a Blaze, ROBERT OSBORNE, JR., STANLEY OLEJNICZAK, and SEAN MCINDOO a/k/a Professor, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD, UNITED STATES DISTRICT JUDGE

         The 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.

         I. Authority for Disclosure of Jury Selection Materials

         The 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).

         Section 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).

         In 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." Id.

         Moreover, "[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)).

         Nonetheless, 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 behalf.").

         II. Application

         In the 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.

         1. 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.

         Mr. 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. ...


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