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United States v. Allen

United States District Court, D. Kansas

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS WAYNE ALLEN, PATRICK EUGENE STEIN, GAVIN WAYNE WRIGHT, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Curtis Allen's motion seeking an order directing the Clerk of Court Jury Coordinator to issue summonses to prospective jurors from both the Wichita-Hutchinson and Dodge City jury divisions to report for jury service for Defendants' upcoming trial. The motion was joined by Defendants Patrick Stein and Gavin Wright. On January 3, 2018, the Court held a hearing on the motion. Because the Court concludes that the current plan for selecting petit jurors does not infringe upon Defendants' statutory or constitutional rights, and Defendants lack standing to challenge the plan on behalf of citizens currently excluded from petit jury service, Defendants' Motion for Order to Have Prospective Jurors Summoned from Multiple Jury Divisions (Doc. 188) is denied.

         I. Factual and Procedural Background

         District of Kansas Local Rule 38.1 (also referred to as the “jury selection plan” or simply the “plan”) governs the random selection of grand and petit jurors for the federal judicial District of Kansas. The jury selection plan splits the District into six jury divisions: (1) Kansas City-Leavenworth; (2) Wichita-Hutchinson; (3) Topeka; (4) Dodge City; (5) Fort Scott; and (6) Salina.[1] Under the plan, eligible jurors from all six jury divisions have the opportunity to serve on a grand jury panel. The first grand jury panel sits at Kansas City, and consists of grand jurors from the Kansas City-Leavenworth and Fort Scott jury divisions. The second panel sits at Topeka, and consists of grand jurors from the Topeka and Salina jury divisions. And the third panel sits at Wichita, consisting of grand jurors from the Wichita-Hutchinson and Dodge City jury divisions.[2]

         While the plan requires the Wichita grand jury panel to be composed of citizens from the Wichita-Hutchinson and Dodge City jury divisions, it does not impose the same requirement for petit juries. Under the plan, the clerk must maintain a qualified jury wheel for each division, composed of names from the voter registration lists.[3] When ordered to assign a petit jury panel, the clerk is directed to draw names from one of these divisional qualified jury wheels.[4] The plan does not, however, require the clerk to draw from multiple jury divisions when assembling a petit jury panel.

         Consistent with this guidance, the jury coordinator only summons jurors from the Wichita-Hutchinson division when a jury trial is held at the Wichita federal courthouse. The same goes for jury trials held in Kansas City and Topeka: jurors are summoned from the Kansas-City Leavenworth division when a trial is held in Kansas City, and jurors are summoned from the Topeka division when a trial is held in Topeka.[5] Thus, in practice, citizens from the Dodge City, Fort Scott, and Salina jury divisions do not have the opportunity to serve as petit jurors in the District of Kansas.

         This case was initiated after a grand jury returned an indictment charging Defendants- who resided within the Dodge City jury division-with one count of conspiracy to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a on October 19, 2016. Then, on December 14, a grand jury returned a superseding indictment that added weapons-related charges against Allen, in violation of 18 U.S.C. § 922(g), and against Stein, in violation of 18 U.S.C. § 924(c). And on March 16, 2017, a grand jury returned a second superseding indictment that added a civil rights conspiracy charge against all three defendants, in violation of 18 U.S.C. § 241, and added a charge against Wright for lying to the FBI to obstruct its investigation into this matter, in violation of 18 U.S.C. § 1001.

         All of the alleged events occurred in Western Kansas within the confines of the Dodge City jury division. Yet, as Defendants point out, the citizens who live in this jury division are currently excluded from serving as petit jurors for the trial scheduled to take place in Wichita. Accordingly, Defendants filed this present motion asking the Court to order the Clerk of Court Jury Coordinator to issue summonses to prospective jurors from both the Wichita-Hutchinson and Dodge City jury divisions to report for service on the petit jury for the upcoming trial.

         II. Discussion

         Defendants make two primary arguments in this case: (1) that the jury selection plan employed by the District of Kansas violates Defendants' right to a jury trial before a fair cross-section of the community, as guaranteed by the Sixth Amendment and Jury Selection and Service Act of 1968 (“Jury Act”); and (2) by excluding Dodge City jury division citizens from petit jury service, the plan violates those citizens' rights under the Fifth and Sixth Amendments, as well as rights established under the Jury Act. The Court will address each argument in turn.

         A. Defendants' Right to a Jury Trial before a Fair Cross-Section of the Community Has Not Been Violated

          Defendants first argue that the District of Kansas's method for selecting petit jurors violates their right to a jury that has been drawn from a fair cross-section of the community. More specifically, Defendants contend that they have a right to have citizens from the Dodge City jury division included in the petit jury pool. According to Defendants, the citizens of these 28 counties “live in more rural areas and are more politically conservative.” As Defendants are alleging discrimination in the jury selection process, they have the burden of establishing the intentional exclusion of a legally cognizable group.[6]

         The Sixth Amendment guarantees the accused the right to an “impartial jury” of the “State and district wherein the crime shall have been committed . . . .”[7] In Taylor v. Louisiana, [8]the U.S. Supreme Court declared that an essential characteristic of an impartial jury is that the jury be drawn from a fair cross-section of the community.[9] The fair-cross-section requirement has also been legislatively mandated by Congress in the Jury Act.[10] As the Jury Act codifies Defendants' Sixth Amendment rights, a statutory claim is evaluated under the same standards enunciated for the constitutional claim.[11]

         Taylor mandated that “the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.”[12] This requirement, however, is a means of assuring “not a representative jury (which the Constitution does not demand), but an impartial one (which it does).”[13]

         In Duren v. Missouri, [14] the Supreme Court set forth the criteria necessary to establish a prima facie violation of the fair-cross-section requirement. A defendant must show: (1) the group alleged to be excluded is a “distinctive group” in the community; (2) the representation of this group in jury venires is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process.[15]

         Defendants' constitutional challenge fails because they cannot satisfy the first requirement of the Duren test-the group alleged to be excluded is not “distinctive.” The Supreme Court has declined to “precisely define the term ‘distinctive group, ' ” but has held that the exclusion of a particular group was unobjectionable where it did not contravene the three purposes of the cross-section requirement: (1) avoiding “the possibility that the composition of juries would be arbitrarily skewed in such a way as to deny criminal defendants the benefit of the common-sense judgment of the community”; (2) avoiding an “appearance of unfairness”; and (3) ensuring against deprivation of “often historically disadvantaged groups of their right as citizens to serve on juries in criminal cases.”[16]

         The Tenth Circuit, however, has provided a three-part test for determining whether a group is distinctive.[17] A defendant must prove: (1) the group is defined by a limiting quality (i.e., the group has a definite composition such as race or sex); (2) a common thread or basic similarity in attitude, idea, or experience runs through the group; and (3) a community of interests exists among members of the group such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process.[18]

         Courts addressing this issue have found that groups characterized by race, religion, ethnicity, and gender meet this distinctiveness standard.[19] But that list is essentially exhaustive.[20]Groups characterized by age, occupation, disability, education, and other characteristics are not distinctive under Taylor, and their exclusion does not run afoul of the Constitution.[21] “Neither does a person's geographic location place that person in a distinct group.”[22] However, geographic location may be considered a distinctive group if the location is “profoundly culturally distinct.”[23]

         In their motion, Defendants conflate a number of different arguments and struggled to define the precise group they assert is “distinctive.” Liberally interpreting Defendants' arguments, the Court identifies four groups Defendants consider to be “distinctive”: (1) the entire Dodge City jury division population; (2) registered Republican voters; (3) voters who voted for President Trump in the 2016 general election; and (4) citizens who live in rural communities. The Court will address each group below.

         1. Citizens residing within the Dodge City jury division are not a distinctive group

         Here, the District of Kansas jury selection plan denies every citizen residing within the Dodge City jury division the opportunity to serve as a petit juror. The question, then, is whether this “group” satisfies the distinctiveness requirement set forth in Duren. It does not. Turning to the factors enunciated in Green, the group first lacks a limiting quality; the group includes men and women of many different ages, races, ethnicities, religions, educations, and occupations.

         Second, the group lacks a common thread or basic similarity in attitude, idea, or experience. In support, Defendants cited recent voter data to argue that the entire population shares similar political opinions. But the fact that voters in the Dodge City division preferred Donald Trump (the Republican Party nominee) over Hilary Clinton (the Democratic Party nominee) in the 2016 presidential election is unpersuasive. True, Donald Trump received 75.5% of votes cast in the Dodge City jury division. However, Defendants' statistic only accounts for eligible voters who actually cast a ballot. Of the 113, 896 registered voters in the Dodge City division, 39.5% did not vote in the election.[24] Thus, the 52, 059 votes for Donald Trump only accounted for 45.7% of registered voters in the division. The fact that less than half of the prospective jurors in the Dodge City division voted for a particular Presidential candidate does not establish that a common thread or basic similarity in ideas runs through the group. Neither does the fact that 56% of registered voters within the division registered as Republican. There is simply too much disparity amongst these voters to conclude that the group shares a similar attitude, idea, or experience.

         Defendants also argue that the citizens in the Dodge City jury division tend to reside in rural locations, which would suggest they share a similar attitude, idea, or experience. However, Defendants provided no evidence that tended to support their proposition.[25] The Dodge City jury division contains hundreds of individual and distinct communities across 28 counties. Defendants were unable to explain how these citizens share similar attitudes, ideas, or experiences. Accordingly, Defendants have not been able to satisfy the second element.

         Third, Defendants are unable to establish that a community of interests exists among members of the Dodge City division such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process.[26] In their motion, Defendants did not identify a community of interests that exists among the members of the Dodge City division. So at the hearing, the Court asked Defendants to define the characteristics that distinguish citizens of the Dodge City division from citizens of the Wichita-Hutchinson division. After all, the parties acknowledged that the Wichita-Hutchinson division contains many rural, conservative citizens as well.

         Counsel for Wright argued that the difference between the two divisions is found in the groups' belief systems and ideologies. Although conceding that the distinction may not be legally cognizable, counsel insisted the distinction was factually cognizable:

I think the issue that we might have, if we don't [include the Dodge City division], is that there are, I believe, ideologies that are fundamental and strongly held ideologies about things that will govern people's approaches to the evidence. It doesn't mean they're right or wrong, but they are different. And I believe there's a difference in southwest Kansas where these crimes are alleged to have been committed.

         The Court is not persuaded that the distinction is even factually cognizable-Defendants did not present any facts. Rather, counsel offered the bare assertion that citizens in southwest Kansas possess an ideology that fundamentally differs from the citizens immediately to their east. Without more, the Court rejects this argument. There is no evidence to suggest that citizens of the Dodge City division would evaluate the evidence presented at trial differently than citizens of the Wichita-Hutchinson division.[27] Defendants have therefore failed to establish the third element as well.

         Thus, this group is not defined by a limiting quality, no common thread or basic similarity in attitude, idea, or experience runs through the group, and there are no interests unique to the group that would not be adequately represented if the group is excluded from the jury selection process. The only common quality shared by all members of the group is the fact that they all reside within the same 28-county geographic location, and there are no facts that would suggest this location is “profoundly culturally distinct.” This single, shared characteristic is not legally cognizable.[28] Accordingly, the citizens of the Dodge City jury division are not a “distinctive group.”

         2. Registered Republicans, those who voted for President Trump, and rural citizens are not “distinctive groups”

          As mentioned above, the “distinctive group” alleged to be excluded can be classified in other ways as well. At times, Defendants seem to argue that the current jury selection plan discriminates against Republican voters, registered voters that voted for Donald Trump in the 2016 Presidential election, and rural citizens. These characteristics were obviously considered above in determining whether the entire population of the Dodge City division was a “distinctive group.” But now, the Court will consider whether any of these groups, considered alone, can be considered “distinctive” in determining whether the current jury selection plan violates the fair-cross-section requirement.

         a. Registered Republicans

         Defendants submit that a greater percentage of voters in the Dodge City division are registered Republicans than the percentage of registered Republicans in the Wichita-Hutchinson division. Therefore, Defendants argue, by excluding the Dodge City division from petit jury service, the jury selection plan discriminates against registered Republican voters.

         Turning to the first factor, registered Republicans have one obvious limiting quality-the members of this group are all affiliated with the same political party. Because this group has a definite composition, the first element is satisfied.

         Whether a common thread or basic similarity in attitude, idea, or experience runs through the group is a more difficult issue. At first glance, one would assume that members of the same political party share similar political beliefs. In their motion, Defendants represented that Republicans differ from Democrats “regarding the appropriate size and power of the federal government and the individual rights of its citizens.”[29] At the hearing, however, Defendants seemed to argue that Republicans in the Dodge City division held ideologies and beliefs that were distinguishable from those held by Republicans in the Wichita-Hutchinson division. This suggests that Republicans, as a group, may possess differing attitudes or ideas. Regardless, Defendants offered no evidence that would allow the Court to make such a determination. Defendants merely provided a conclusory statement-that Republicans agree on “the appropriate size and power of the federal government and the individual rights of its citizens.” Thus, Defendants have not met their burden of proving the second element.[30]

         Defendants are also unable to establish the third element-that a community of interests exists among members of the Republican Party such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process. Again, Defendants only offered vague conclusions about the shared interests of Republicans and how those interests would be represented on the jury. Defendants represented in their motion that Republicans differ from Democrats “regarding the appropriate size and power of the federal government and the individual rights of its citizens.”[31] And, according to Defendants, “this case will require the jury to evaluate and weigh evidence regarding whether the alleged conduct constitutes the crimes charged or whether it was constitutionally protected speech, assembly, and petition, and/or the right to bear arms.”[32]

         Defendants appear to argue, then, that the exclusion of Republicans would make a difference in the assessment of the evidence by a jury. While it is possible that members of one political party would assess evidence differently than members of another political party, Defendants have not proven so here. Defendants' evidence only shows registered voters' political party affiliation; it does not speak to whether members of one political party would evaluate evidence differently than members of another political party.[33] Nor have Defendants proven that Republican Party members' interests would not be adequately represented on the jury venire.[34]

         Accordingly, Defendants have not shown that members of the Republican Party are a “distinctive group.” While this group may be defined by a limiting quality, Defendants have not shown that the group shares a basic similarity in attitude, or that there are interests unique to the group that would not be adequately represented if the group is excluded from the jury selection process.[35]

         b. Those who voted for President Trump in the 2016 election

         Defendants also submit that a greater percentage of voters in the Dodge City division voted for Donald Trump in the 2016 Presidential election than voters in the Wichita-Hutchinson division. Therefore, Defendants argue, the jury selection plan discriminates against those who voted for President Trump.

         Defendants are unable to establish any of the elements necessary to show that this group is “distinctive.” This group shared a single quality on one date in history-November 8, 2016- when the members of this group cast their ballots for the same presidential candidate. “The only way to establish the present group, particularly in view of the absence of any scientific or expert evidence in this record, is by arbitrary fiat superimposed on intuition.”[36] Even assuming the Court can be flatly arbitrary, the Court cannot say that a grouping whose contours are rationally unsupportable is “distinctive.”[37]

         c. Rural citizens

          Finally, Defendants argue that the current jury selection plan discriminates against rural voters. As mentioned above, Defendants provided no evidence to suggest that this would be true. Regardless, the courts that have confronted this issue are in agreement: the rural nature of a geographic area does not make its residents “distinct.”[38] Defendants were unable to cite any cases that have held a jury venire unconstitutional due to the rural or urban nature of an excluded segment of the population. Accordingly, rural citizens are not a “distinctive group.”

         3. Exclusion of the Dodge City division does not infringe upon Defendants' right to an impartial jury from a ...


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