Opinion
Case No. 1:07-cr-296.
October 30, 2008
Jury selection/ voir dire was conducted in Kalamazoo, Michigan on Tuesday, October 21, 2008. The prosecution exercised a peremptory strike to exclude Juror #40. After the juror was excluded and left the premises — indeed, after the entire jury had been selected — defendant Wilson's counsel objected that the strike was based on race, in violation of the U.S. Constitution. Wilson's counsel also objected to the fact that, in his opinion, there were no African-Americans on the jury, and he intimated that the system for selecting jurors in this District is somehow racially biased and yielded a racially unrepresentative jury.
The court overruled Wilson's objections, and this opinion explains several reasons for the ruling. First, Wilson's objections on all scores were untimely and therefore waived. Second, Wilson's objection as to the peremptory strike of juror number 40 was conclusory; his counsel did not even attempt to adduce evidence or legal argument in support of that objection, and thereby abandoning them. Third, the objections fail on their merits. As to the peremptory strike of juror number 40, the prosecution articulated non-racial reasons for choosing to strike the juror, the court found the prosecutor to be credible, and even defense counsel stated that he accepted the prosecution's explanation for the strike.
As to the racial composition of the jury and the system for selecting potential jurors in this District, defendant fails to satisfy two of the three elements of a prima facie case of a Sixth Amendment "fair cross-section" violation. As to element two, Wilson has not shown that blacks are under-represented in the potential-juror pool to a degree that is not "fair and reasonable" in relation to the proportion of the relevant population that is black. As to element three, Wilson made no showing that any such under-representation was caused by our jury-selection system's systematic exclusion of blacks.
OBJECTION TO PEREMPTORY STRIKE OF JUROR #40
Wilson Waived His Racial-Discrimination Objection to the Peremptory Strike of Juror 40.
First, the defendant could and should have lodged his objection to the peremptory strike of Juror #40 while that juror was still present before the court. By the time defendant objected to the peremptory strike of that juror, he had already been dismissed and was no longer serving pursuant to the summons for jury duty. By failing to object to the prosecution's strike while that juror was still present, defense counsel deprived the court and both counsel of the ability to resolve whatever factual questions were in their mind about him. For example, counsel and the court could have asked that juror to elaborate about his comment on the juror questionnaire that he had trouble seeing. See, e.g., US v. Wright, 2006 WL 2022888, *10-11 (W.D. Mo. July 17, 2006), R R adopted, 2008 WL 2043090 (W.D. Mo. July 20, 2006) (accepting R R's recommendation that court follow up on juror #41's statement that he had "vision problems"); US v. Eady, 2005 WL 3107729, *5-6 (W.D. Mich. Nov. 18, 2005) (Robert Holmes Bell, C.J.) (after juror stated that "her near vision was somewhat blurry due to recent retinal surgery that left her with a limitation on her ability to do substantial reading or to read fine print", the court showed the witness photographs that would be introduced at trial and was asked whether she could see the photos with sufficient clarity); US v. McDade, 929 F. Supp. 815, 818 (E.D. Pa. 1996) ("I shall permit inquiry as to whether the jurors have any difficulty hearing or seeing, so that they could not aurally and visually assimilate the evidence as it comes forth. . . .").
In addition, if Wilson's counsel had objected to the peremptory strike of juror #40 while that juror was still present, counsel or the court could have asked the juror how he identified his own race or ethnicity.
The Supreme Court made just this point in a case where defense counsel made a belated objection that the defendant's constitutional right to an impartial jury had been violated by "a venire that [had] been tilted in favor of capital punishment by selective prosecutorial challenges for cause." Uttecht v. Brown, ___ U.S. ___, ___, 127 S.Ct. 2218, 2224 (2007) (J. Kennedy for the Court, joined by C.J. Robert and JJ. Scalia, Thomas, and Alito) (citing Witherspoon v. Illinois, 391 U.S. 510 (1968)). The Supreme Court wrote,
By failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprived reviewing courts of further factual findings that would have helped to explain the trial court's decision. The harm caused by a defendant's failure to object to a juror's excusal was described well by a Washington appellate court in a different case:
* * * Had Defendant objected immediately to the State's challenge for cause, the court could have tried the issue and determined the law and facts. Because defendant did not timely object to the excusal of Juror 30, the court had no opportunity to remedy whatever factual questions were in the mind of defendant's counsel.
Uttecht, ___ U.S. at ___, 127 S.Ct. at 2229 (citation omitted) (internal quotation marks, brackets, and alterations omitted).
Accord Leslie v. Artuz, 72 F.3d 267, 275-76 (S.D.N.Y. 1999) ("As the Second Circuit has explained, a Batson claim is untimely when raised after the conclusion of jury selection, in part because it is only then [during jury selection] that the trial court can contemporaneously assess the use of peremptory challenges and remedy any improper conduct without requiring repetition of the jury selection process.") (citing US v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998) and McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996)), judgment aff'd o.g., 230 F.3d 25 (2d Cir. 2000).
Accord Leslie v. Artuz, 72 F.3d 267, 275-76 (S.D.N.Y. 1999) ("As the Second Circuit has explained, a Batson claim is untimely when raised after the conclusion of jury selection, in part because it is only then [during jury selection] that the trial court can contemporaneously assess the use of peremptory challenges and remedy any improper conduct without requiring repetition of the jury selection process.") (citing US v. Franklyn, 157 F.3d 90, 96 (2d Cir. 1998) and McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996)), judgment aff'd o.g., 230 F.3d 25 (2d Cir. 2000).
Accordingly, the court determines that Wilson waived his objection to the prosecution's peremptory strike of juror number 40. See US v. Peraza, No. 93-1660 93-1733, 25 F.3d 1051, 1994 WL 228244, *2 (6th Cir. May 24, 1994) (p.c.) (Guy, Nelson, Lively) ("Because Defendant Peraza's counsel did not voice a timely objection the exclusion of Mr. Furlough, waiting instead until the jury had been seated and the venire discharged, we conclude that Mr. Peraza waived his right to question the propriety of the peremptory challenge.") (citing US v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992) and Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) and US v. Romero-Reyna, 867 F.2d 834, 836-37 (5th Cir. 1989)). Wilson Expressly Abandoned His Objection to the Peremptory Strike of Juror 40.
Cf. the somewhat more extreme delay involved in US v. Cordova, 186 F. App'x 742, 744 (9th Cir. 2006) (holding that Batson challenge was untimely, and the district court was not required to rule on it, where the defendant made the "challenge only after each side had exercised all its peremptories, the jury had been empanelled and sworn, the venire discharged, and an unrelated pretrial matter attended to").
The court finds that even if Wilson did not inadvertently waive his objection to the peremptory strike of juror 40, he later expressly abandoned that objection. Finally, even if Wilson neither waived nor abandoned his objection to the peremptory strike of juror 40, he did not carry his burden of showing the merit of the objection.
The prosecutor, Assistant United States Attorney Green, had this exchange with the court with regard to the prosecution's peremptory strike of juror number 40:
MR. GREEN: Your Honor, first of all, it now appears that Mr. O'Hara is now making two separate Batson challenges, one to the venire panel and [a] specific Batson challenge to the government's use of a peremptory with respect to one of the jurors. We do not concede that there were no African Americans in the jurors that showed up today[;] we don't know that. We can look at people's faces [but] we can't always tell who is African American [and] who is not by looking at their faces and for this record that is all we have here today.
Mr. O'Hara is correct that the government used the peremptory challenge with respect to one juror. I don't know if he identified specifically the juror he is making the Batson challenge to first. I would argue he is too late I mean that if he is going to make a Batson challenge to the government's use of a peremptory with respect to a juror, he needs to make that challenge at the time that the government makes its peremptory I mean at this point what are we supposed to do we've got a jury, although they have not been sworn, but you know, if that challenge is sustained, then we don't have a jury. We have to start this process over again. So it's too late.
But I also want to address it on its merits, because the government most certainly had legitimate nondiscriminatory reasons for striking the juror. And again, I apologize if Mr. O'Hara mentioned the name, I'm assuming he is referring to Juror No. 40. Do you want me to name the juror or leave it at the number?THE COURT: The number is fine. MR. GREEN: All right. THE COURT: Mr. O'Hara, let's make the record clear. Mr. O'Hara, are you referring to Juror No. 40? MR. O'HARA: Yes, I am Your Honor. THE COURT: All right. Thank you. Go ahead.
MR. GREEN: I have, Your Honor, the questionnaire the juror questionnaire that I was given last week that I reviewed over the weekend and that I made notations on prior to arriving here today[,] prior to seeing what he looked like or knowing his racial or ethnic composition, there is nothing on the from that would indicate what his race or ethnicity is and in fact his name, his handwriting is so poor, I couldn't even make out the name. I had to look at the — when you called his number was called — at the typed list, because I couldn't even read the last name, so there is nothing on this form that would indicate the race or ethnicity of this individual.
Now, when I reviewed this prior to coming today, I noted that he didn't get past the eleventh grade in high school. He is currently a landscaper. He seemed to, you know, take a casual or haphazard [approach] to even filling out the form, which always causes me some concern. We — the types of newspaper magazines books he reads is simply car magazines [and he] also indicated at the bottom that he had trouble seeing. All these are highlighted. I have a grading method that I use, [Y]our Honor, which I would be the first to acknowledge is hardly scientific.
All of us who try cases, it's a gut check, you know, but you go through these and I use different. Methods I use grading system, [another prosecutor] Mr. O'Connor uses a plus minus system[.] [W]e both separately reviewed these questionnaires before today, I wrote — I gave this juror a D, which is a fairly low grade. Mr. O'Connor gave a minus with a circle around it, which he told me indicates this is not somebody he is interested in having on the jury. I would be happy to show this questionnaire to [defense counsel] Mr. O'Hara and to the Court so the Court can take notice of these facts.Batson Batson THE COURT: Mr. Green, do you want this marked as an exhibit? MR. GREEN: Yes, [Y]our Honor, I believe we should do that. THE COURT: All right. Let's mark it as Government's 1. Probably should mark it hearing number one and just make on the tab hearing. COURT CLERK: Okay. THE COURT: Mr. O'Hara, any objection to the exhibit? MR. O'HARA: No, [Y]our Honor. THE COURT: All right. Exhibit 1 is received. MR. GREEN: So as to that issue, [Y]our Honor, the government has articulated a legitimate non-[racial] use of peremptory challenge. The burden goes back to the defendant to demonstrate that the legitimate articulated reason is simply a pretext, which I don't believe Mr. O'Hara will be able to do. Preliminary Draft of Transcript of Monday, July 20, 2008 Voir Dire at 88:1 to 91:5 (emphasis added).
Wilson's counsel made no attempt to show that the prosecution's stated non-racial reasons for striking juror number 40 were pretexts for racial discrimination. On the contrary, Wilson's counsel effectively abandoned his challenge to the peremptory strike of juror number 40, stating that he accepted the prosecutor's explanation. The following is the entirety of Wilson's counsel's exchanges with the court regarding the peremptory strike of juror number 40 and the racial composition of the jury pool and jury: Batson Batson I take Mr. Green's word for it, I've known him for a long time, and he is a[n] honorable person and lawyer, and I don't challenge his comments.
MR. O'HARA: Your Honor, on behalf of Mr. Walter Wilson, we would object to the jury pool and make a formal challenge. In the jury pool today, there were no African Americans, and there was one minority that I was able too — that my memory is, and that was a Hispanic man [wh] was removed by the government peremptorily, not for cause and not after any questions by the government, and so our jury consists of 14, and ultimately 12 white Caucasian members. My client is African American, and we would make the challenge that he is not being tried by a jury of his peers. Thank you. * * * THE COURT: All right. Mt. O'Hara, concerning juror 40, what is your reaction to Mr. Green's argument that you are not timely in lodging a challenge on Juror 40 at this point? MR. O'HARA: Your Honor, we were in the middle of a jury selection, the jury is here, it's cumbersome to be turning around and looking at the number of minorities. My point is, for the record, is that there was one Hispanic in this pool and no African Americans and on behalf of Mr. Wilson, I wanted to raise that to the Court. THE COURT: All right. Thank you. Preliminary Draft of Transcript of Monday, July 20, 2008 Voir Dire at 87:11-20 and 93:3-15 (emphasis added). Wilson's counsel's statements constitute abandonment of the objection as to juror number 40.Wilson's Objection to the Peremptory Strike of Juror 40 Lacks Merit.
In any event, Wilson's objection regarding juror number 40 lacks merit. The Supreme Court sets forth a three-part process for trial courts to use in adjudicating a claim that a peremptory challenge was based on race:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.Snyder v. Louisiana, ___ U.S. ___, ___, 128 S.Ct. 1203, 1207 (2008) (Alito, J.) (quoting Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Thomas, J., dissenting o.g.) (quoting Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003))) (internal quotation marks and brackets omitted).
At the second step of the Batson analysis, "`the government is not required to persuade the court that its reasons for dismissing the juror were well-founded; rather it need only demonstrate that its reasons were race-neutral.'" US v. Taylor, 2005 WL 2372037, *13 (W.D. Mich. Sept. 27, 2005) (Robert Holmes Bell, C.J.) (quoting US v. Copeland, 321 F.3d 582, 599 (6th Cir. 2003)), aff'd, 279 F. App'x 368 (6th Cir. 2008). More specifically, this second step of the Batson analysis "does not demand an explanation that is persuasive or even plausible. `At this . . . step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral.'" Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (quoting Hernandez, 500 U.S. at 360).
Even if Wilson had made a prima facie case that the peremptory strike of Juror #40 was exercised on the basis of race, the prosecution responded by articulating legitimate, non-racial reasons for striking that juror, foremost among them the juror's apparent lack of seriousness and diligence in filling out the juror questionnaire and his own written statement that he had trouble seeing. A juror's ability to see has been held legally significant by federal and state courts.
In any event, the court is inclined to agree that a self-acknowledged uncorrected vision problem is not just race-neutral, but can be an empirically well-founded reason to strike a prospective juror as well. If one cannot be confident that a juror can clearly see a witness — including his eyes, his facial expression, and his "body language" — one cannot be confident that the juror can form a sound judgment about whether to believe the witness. The Supreme Court and our Court of Appeals have recognized that someone's demeanor can "bear . . . heavily on the listener's understanding of and belief in what is said." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (White, J.) (citing Wainwright v. Witt, 469 U.S. 412 (1985)), followed by Hamilton v. Carell, 243 F.3d 992, 997-98 (6th Cir. 2001).
For example, the Eighth Circuit has stated that a potential juror's vision problem is a legitimate race-neutral reason for the prosecution to strike him from the jury. See US v. Dawn, 897 F.2d 1444, 1447 (8th Cir. 1990) ("[T]he prosecutor offered the following explanations for the challenges of black members of the venire: * * * one juror had health and eye problems which may have affected her ability to follow the evidence.").
Accord Pinkston v. Madry, 440 F.3d 879 (7th Cir. 2006) (assessment of witness credibility turns on "variations in demeanor including but not limited to the actions, mannerisms, and facial expressions") (quoting Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1420 (7th Cir. 1987)); US v. Woods, 233 F.3d 482, 484 (7th Cir. 2000) (assessment of witnesses' credibility turns on observation of the witnesses' "verbal and nonverbal behavior . . . [such as their] reactions and responses to the interrogatories, their facial expressions, attitudes, tone of voice, eye contact, posture, and body movements. . . .").
(emphasis added).
See, e.g., Bugh v. Mitchell, 329 F.3d 496, 508 (6th Cir. 2003) (in concluding that defendant's Sixth Amendment right to confront his accusers had been safeguarded, the Circuit found it significant that "the judge, jury, and [defendant] Bugh were able to view [accuser] Robin's demeanor as she testified.") (citing Maryland v. Craig, 497 U.S. 836, 851 (1990));
Finally, the third step of the Batson inquiry "involves an evaluation of the prosecutor's credibility," Snyder, ___ U.S. at ___, 128 S.Ct. at 1208 (citing Batson, 476 U.S. at 98 n. 21), and "`the best evidence [of the presence or absence of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,'" Snyder, ___ U.S. at ___, 128 S.Ct. at 1208 (quoting Hernandez, 500 U.S. at 365 (plurality op.)). In addition to assessing the prosecutor's demeanor, this court must also assess whether the juror can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. Snyder, ___ U.S. at ___, 128 S.Ct. at 1208. "[T]hese determinations of credibility and demeanor lie `peculiarly within a trial judge's province. . . .'" Snyder, ___ U.S. at ___, 128 S.Ct. at 1208 (quoting Hernandez, 500 U.S. at 365 (plurality op.) (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).
Nothing in this court's experience with AUSA Green, whether in this case or in other cases, gives any reason to believe that his peremptory strike of juror 40 was motivated by (1) animus against juror 40's actual or perceived racial or ethnic group or (2) a strategic assessment or personal belief that a member of juror 40's racial or ethnic group might be "too likely" to vote to acquit a non-white defendant. For this reason, the court finds that AUSA Green was credible, i.e., that his stated reasons for striking juror 40 were his actual reasons for striking juror 40.
Far from questioning AUSA Green's credibility, defense counsel called him an honorable man and stated that he accepted the AUSA's explanation of the reasons behind the peremptory strike. See US v. Jackson, 347 F.3d 598, 605 (6th Cir. 2003) ("[it is the defendant's burden to rebut, to whatever extent possible, the prosecutor's reason for exercising his or her peremptory strikes on the record at the time such reasons are proffered[") (quoting US v. Harris, 15 F. App'x 317, 321 (6th Cir. 2001)).
OBJECTION TO RACIAL COMPOSITION OF JURY AND JURY POOL
Wilson objected to both the racial composition of the jury pool and to the racial composition of the actual jury as ultimately constituted. First, Wilson could and should have known of this District's method of assembling a jury pool before the day came for jury selection. By waiting until all the jurors had already been chosen before objecting to the composition of the jury pool, Wilson waived his objection to the racial composition of the pool and his objection to the racial composition of the particular jury itself. See US v. Broadus, 7 F.3d 460, 462-63 (6th Cir. 1993) (C.J. Merritt, Guy, Batchelder) (defense counsel's objection to jury-selection system after fifth and final round of peremptory challenges was untimely, because counsel knew about the system before the selection started and waited until jury selection was substantially complete to object).Moreover, even if Wilson had not waived his objections to the racial composition of the jury pool, this objection lacks merit. Wilson's counsel did not attempt to show any systematic racial bias in this District's established standard procedures for defining the pool of persons qualified and eligible to be jurors, or its procedures for calling people to serve as venir persons in a particular case, and the evidence does not show any such bias.
The court heard testimony from Diane Hopkins, the Jury Administrator for the United States District Court for the Western District of Michigan. Ms. Hopkins had this exchange under direct examination by AUSA Green: randomly randomly venire randomly
Q. What are your responsibilities as a jury administrator? A. Well, it's my responsibility to draw jurors for the district and to ensure that the jury plan is followed. Q. What is the jury plan? A. It's a plan which we have to follow which states the laws and the rules and our procedures and policies for drawing from the population. Q. Can you describe for the court, please, how that plan works and how it is implemented? * * * A. I'm required to draw jurors from the voter registration lists, 50 percent of the [ pool] must be drawn from the voter registration list, and . . . 50 percent of the names from the driver's license list and I.D. holders. Q. I'm sorry, I missed that last part. A. We draw 50 percent of the names from the driver's license list and I.D. holders. Q. So the I.D. holders are people who aren't necessarily drivers, but go to the Secretary of State[']s office to get an identification? A. Yes, sir. Q. All right. Now . . . is it the case that there are different potential pools depending upon where the Court is sitting, for example, does Kalamazoo draw from certain counties? A. Yes. Q. What counties does the Kalamazoo court draw from? A. Kalamazoo, Allegan, Barry, Van Buren, Kalamazoo, Calhoun, Berrien, Cass, St. Joseph, Branch and Hillsdale. Q. All right. And so potential jurors are drawn from those counties for Kalamazoo, 50 percent based on voter registration and 50 percent on licenses and identifications? A. Correct. Q. Okay. And now are they selected ? A. Yes, sir. Q. Do you keep statistics on the composition of the population of those counties that you mentioned? A. I keep statistics from the last census. Q. And the last census would have been 2000? A. Correct.Preliminary Draft of Transcript of Monday, July 20, 2008 Voir Dire at 76:3-20 and 77:2 to 78:10 (emphasis added). The Jury Administrator also testified as to the percentages of the Kalamazoo region's population which identified themselves as belonging to various races, according to the 2000 U.S. Census. See Tr. 78:22 to 79:16. The Jury Administrator next testified as to the percentages of the racial self-identification of those from the Kalamazoo region's population who actually returned a prospective-juror questionnaire mailed to them by this court. See Tr. 79:17 to 83:22.General Population 6,439 Kalamazoo Region Residents Who Self-Identification Completed Returned Questionnaires 2000 Census For September 24, 2007 "Wheel"
This data comes from Part 2 of Form AO [Administrative Office] 12 completed by the Jury Administrator on October 20, 2008, which summarizes the "master jury wheel" which was created on September 24, 2008 and went into use for jury trials in this district on January 1, 2008. See Tr. 79:17 to 81:20 (direct examination of W.D. MICH. Jury Administrator Diane Hopkins).
After receiving the voluntarily completed and returned questionnaires, the Jury Administrator developed a list of those who voluntarily completed and returned questionnaires who were actually qualified to come to court and serve on a jury. The racial composition of the pool of qualified potential jurors was as follows for the relevant period:General Population 4,307 Qualified Kalamazoo Region Residents Self-Identification Who Completed Returned Questionnaires 2000 Census For September 24, 2007 "Wheel"
This data comes from Part 2 of Form AO [Administrative Office] 12 completed by the Jury Administrator on October 20, 2008, which summarizes the "master jury wheel" which was created on September 24, 2008 and went into use for jury trials in this district on January 1, 2008. See Tr. 79:17 to 81:20 (direct examination of W.D. MICH. Jury Administrator Diane Hopkins).
This data comes from Part 3 of Form AO [Administrative Office] 12 completed by the Jury Administrator on October 20, 2008, which summarizes the "master jury wheel" which was created on September 24, 2008 and went into use for jury trials in this district on January 1, 2008. See Tr. 79:17 to 81:20 (direct examination of W.D. MICH. Jury Administrator Diane Hopkins) and Tr. 84:25 to 86:21 (cross-examination of W.D. MICH. Jury Administrator Diane Hopkins).
There is no requirement, however, that the "petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Smith, ___ F.3d at ___, 2008 WL 4330408 at *7 (quoting Taylor, 419 U.S. at 538). Rather, the court must ensure only that the "jury selection process . . . does `not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.'" Id.
In order to make a prima facie showing that the composition of the jury or potential-juror pool violates this right, Wilson had to establish (1) the group alleged to be excluded is a distinctive group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of persons from that group in the community, and (3) this under-representation is due to systematic exclusion of the group in the jury selection process. US v. Buchanan 213 F.3d 302, 308 (6th Cir. 2000) (emphasis added).
For purposes of the first element of this prima facie case, the court assumes that blacks are "a distinctive group in the community." See, e.g., US v. Odeneal, 517 F.3d 406, 412 (6th Cir. 2008) ("The government agrees that African-Americans are a distinctive group within the community. . . ."); US v. Test, 550 F.2d 277, 586 (10th Cir. 1976) ("In the absence of factual findings by the district court regarding the cognizability of blacks and [Hispanics], we likewise presume and assume, without deciding, that blacks and [Hispanics] respectively constituted distinctive groups in the Colorado community.") (internal quotation marks and alterations omitted); US v. Claville, 2008 WL 850150, *2 (W.D. La. Mar. 25, 2008); Welch v. Artus, 2007 WL 962931, *28 (W.D.N.Y. Mar. 29, 2007) ("Assuming arguendo that Welch satisfied the first two requirements necessary to establish a prima facie violation of the fair cross-section requirement, i.e., that blacks constituted a `distinctive' group in the Niagara County community. . . .").
For one test of when a group of people should be considered "distinctive" for this purpose, albeit a test that apparently has not been adopted by our Circuit, see US v. Test, 550 F.2d 277, 591 (10th Cir. 1976), followed by Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir. 1983).
Wilson, however, did not satisfy the second element of the prima facie. He made no showing that blacks are under-represented in the venires from which juries are selected in this District to a degree that is "not fair and reasonable" in relation to the proportion of the relevant population that is black.
Moreover, even if Wilson could show that blacks are under-represented in the venires from which juries are selected to a degree that is "not fair and reasonable" in relation to the proportion of the relevant population that is black, he cannot satisfy the third element of the prima facie case. Wilson's counsel did not even attempt to show that any such under-representation is "due to systematic exclusion of [blacks] in the jury selection process", and the court finds no such systematic exclusion. It is not enough for Wilson to simply point to his particular jury and complain that in his opinion, it did not have any black jurors (or any non-white jurors). See US v. Odeneal, 517 F.3d 406, 412 (6th Cir. 2008) ("Defendants must show more than that their particular panel was unrepresentative. Duren [v. Missouri, 439 U.S. 357 (1979)] requires us to look at the 'venires' from which `juries' are selected . . . and it has long been the case that defendants are not entitled to a jury of any particular composition — only to a panel from which distinctive groups were not `systematically excluded.'") (quoting Allen, 160 F.3d at 1103 (quoting Taylor, 419 U.S. at 538)).
The Court notes that one juror who self-identified as black did not appear for duty for this trial although summoned to do so.
ORDER
For the foregoing reasons, the court OVERRULED the defendant's objection to the prosecution peremptory strike of Juror #40 and OVERRULED the defendant's objections to the racial composition of the jury and the jury pool.
IT IS SO ORDERED this 30th day of October 2008.
This is a final and appealable order.