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United States of America v. Kaboni Savage Robert Merritt

October 2, 2012

UNITED STATES OF AMERICA
v.
KABONI SAVAGE ROBERT MERRITT
STEVEN NORTHINGTON KIDADA SAVAGE



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Steven Northington's Motion for Discovery of Information Concerning the Confection of the Grand and Petit Jury Venire (ECF No. 372), and Motion to Secure Jury from the County of Offense Pursuant to 18 U.S.C. § 3235 (ECF No. 403). For the following reasons, Defendant's Discovery Motion will be granted in part and denied in part, and Defendant's Motion to Secure Jury from the County of Offense will be denied.

I. BACKGROUND

On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging Defendant Steven Northington with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 5 and 7), and tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8). (Fourth Superseding Indictment, ECF No. 480).*fn1 Defendant was charged, along with three co-defendants, Kaboni Savage ("Savage"), Robert Merritt, and Savage's sister, Kidada Savage ("Kidada"). Defendant Lamont Lewis was also charged in the First Superseding Indictment.*fn2 On March 14, 2011, the Government filed a Notice of Intent to Seek the Death Penalty against Defendant. (Notice of Intent, ECF No. 198.)

On February 20, 2012, Defendant filed a Motion for Discovery of Information Concerning the Confection of the Grand and Petit Jury Venire. (Def.'s Discovery Mot., ECF No. 372.) On April 16, 2012, the Government filed a Response to Defendant's Motion for Discovery. (Gov't's Discovery Resp., ECF No. 468.) On February 21, 2012, Defendant filed a Motion to Secure Jury from the County of Offense Pursuant to 18 U.S.C. § 3235. (Def.'s Jury Mot., ECF No. 403; see also Def.'s Jury Br., ECF No. 403.)*fn3 On April 10, 2012, the Government filed a Response to Defendant's Jury Motion. (Gov't's Jury Resp., ECF No. 457.) Trial of Defendants is scheduled for January 7, 2013.

II. DISCUSSION

A. Motion to Secure Jury from County of Offense

Defendant requests that eligible jurors for this case be selected from Philadelphia County, and not from all nine counties comprising the Eastern District of Pennsylvania.*fn4 Defendant argues that jurors should be selected from Philadelphia because that is where the capital offense with which he is charged was allegedly committed. (Def.'s Mot. 4.) Defendant relies on 18 U.S.C. § 3235, a statute that addresses the venue of trial in capital cases. He contends that the racial makeup of the Eastern District of Pennsylvania, when compared to the racial makeup of Philadelphia county, requires that jurors be selected from Philadelphia in order to assure that Defendants receive a jury that represents a fair cross-section of the community. In support of this argument, Defendant submits data from the 2010 United States Census. The census data cited by Defendant reveals that African-Americans represent approximately forty-three percent (43%) of the population of Philadelphia, and represent approximately seventeen percent (17%) of the population of the entire Eastern District. (Def.'s Mot. 11.) All of the Defendants in this case are African-American.

The statute that Defendant relies upon, 18 U.S.C. § 3235, states that "[t]he trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience." 18 U.S.C. § 3235. The Government will seek a sentence of death against Defendant on the following charges: (1) murder in aid of racketeering, and aiding and abetting, which resulted in the death of Tybius Flowers (Count 7); and (2) tampering with a witness, which resulted in the death of Tybius Flowers (Count 8). (Notice of Intent 1.) Tybius Flowers was allegedly murdered at the corner of 8th and Butler Streets in North Philadelphia. (Indictment 18.) Defendant's trial will take place at the United States Courthouse in Philadelphia County, and will therefore take place "in the county where the offense was committed." 18 U.S.C. § 3235.

Section 3235 is unambiguous. There is nothing in § 3235 that requires the jury to be selected from the county of the offense. We reject Defendant's attempt to import a "vicinage requirement" into the statute. Defendant invites us to construe the terms "venue" and "trial" in 18 U.S.C. § 3235 as encompassing a requirement that the empaneled jury must be citizens of the county of the offense. Such a constrained interpretation finds no support in the law. The statute requires only that the trial of a capital defendant be held in the county where the offense was committed. It says nothing with respect to the location from which jurors will be selected.

Moreover, Defendant fails to cite a single case that supports his interpretation of 18 U.S.C. § 3235. In fact, the cases that he relies upon do just the opposite. In United States v. Zicarelli, 543 F.2d 466 (3d Cir. 1976), the Third Circuit confirmed that "petit jurors [are] drawn from within the state and federal jurisdictional district in which the crime was committed" and that "a narrower geographical focus" is not required. Id. at 482. The Court explained that, at one time, a capital defendant had a statutory right to a jury selected from the county of the offense.

Id. at 478 (referencing the Judiciary Act of 1789). However, that right was repealed by Congress in 1862. Id. at 478 n.60. The Court did not discuss, let alone cite to 18 U.S.C. § 3235. Not only is there no statutory right to a jury from the county of offense, there is no explicit right to empanel such a jury in the Constitution. See id. at 477 ("[T]he concept that a criminal trial must be before a jury composed of residents of the county where the crime occurred was not deemed to be of sufficient consequence to be guaranteed by the Constitution.").

Similarly, Defendant's reliance on United States v. Green, 389 F. Supp. 2d 29 (D. Mass. 2005), and United States v. Johnson, No. 04-17, 2010 U.S. Dist. LEXIS 42626 (E.D. La. Mar. 29, 2010), is misplaced. In Green, neither 18 U.S.C. § 3235, nor the issue of whether a jury must be selected from the county of offense was at issue. In Johnson, the defendant argued that reference to "venue" in Section 3235 "contemplates jury venire and selection as well as the presentation of evidence, and that the jury therefore must be selected from the county of the offense. 2010 U.S. Dist. LEXIS 42626, at *6. This is essentially the same argument made by Defendant here. The court in Johnson rejected the defendant's argument, and determined that the jury selection process, which involved empaneling jurors from the entire district, did not violate 18 U.S.C. § 3235 or the Sixth Amendment. Id. at *7-8 ("The clear language of those sections does not lend direct support to the creative argument proposed by Defendant."). Accordingly, we conclude that 18 U.S.C. § 3235 does not provide Defendant with the right to select a jury comprised of only Philadelphia County residents.

To the extent that Defendant attempts to raise arguments under the Sixth Amendment or the Jury Selection and Service Act of the 1968 ("JSSA"), 28 U.S.C. §§ 1861, et seq., such arguments are also devoid of merit.*fn5 The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . ." U.S. Const. amend. VI. Section 1861 of the JSSA states that "[i]t is the policy of the United States that all litigations 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 or division wherein the court convenes." 28 U.S.C. § 1861. Section 1863 of the JSSA provides that "[e]ach United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be designed to achieve the objectives of sections 1861 and 1862 . . . ." 28 U.S.C. § 1863(a). ...


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