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United States of America v. Kaboni Savage Robert Merritt Steven Northington Kidada

January 28, 2013

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



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

MEMORANDUM

Presently before the Court is Steven Northington's Motion to Increase Pool of Prospective Jurors and to Strike the Current Jury Panel (ECF No. 701). For the following reasons, Defendant's Motion 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, Robert Merritt, and Savage's sister, Kidada Savage. 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. (ECF No. 198.) The Government also seeks the death penalty against Kaboni Savage and Merritt (ECF Nos. 196, 197.)

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 October 2, 2012, the Court issued a Memorandum and Order, granting in part and denying in part, Defendant's Motion for Discovery. (ECF Nos. 639, 640.) The Court granted discovery of The Plan of the Random Selection of Grand and Petit Jurors of 1968 for the Eastern District of Pennsylvania (revised December 4, 2009) (the "Jury Plan") and statistical breakdowns by race and ethnicity of Master and Qualified Jury Wheels from 2007, 2009, and 2011. (Order, ECF No. 640.) On November 6, 2012, Defendant filed the instant Motion to Increase Pool of Prospective Jurors and to Strike the Current Jury Panel. (Def.'s Jury Mot., ECF No. 701.)*fn3 On November 15, 2012, the Government filed a Response to Defendant's Jury Motion. (Gov't's Jury Resp., ECF No. 716.)

II. DISCUSSION

Defendant requests that the grand and petit jury panels utilized by this court be struck and replaced by panels obtained from the expanded list of jurors currently in the possession of the Administrative Office of Pennsylvania Courts ("AOPC"). (Def.'s Mot. ¶ 31.)*fn4 Defendant argues that jurors drawn solely from voter registration lists, which is how it is done in the Eastern District of Pennsylvania, underrepresents both African-Americans and persons residing in Philadelphia, depriving him a jury comprised of his peers. (Def.'s Mot. ¶¶ 24, 30.) Defendant relies on the Sixth Amendment's fair cross section provision, which requires that a jury be drawn from a representative sample of the community. (Id. at ¶ 8.) He contends, quoting a report by the Pennsylvania Interbranch for Gender, Racial, and Ethnic Fairness, that reliance on Pennsylvania voter registration lists alone are not "reflective of the community-at-large, particularly the minority community." (Id. at ¶ 7.) In support of this argument, Defendant submits data from the United States Census Bureau. (Def.'s Mot. Ex. 1 (on file with Court).) The data cited by Defendant reveals that African-Americans represent 43.8% of the population of Philadelphia and 16.82% of the Eastern District of Pennsylvania. (Def.'s Mot. ¶¶ 18, 22.) In the pool of prospective jurors for Defendant's trial, 9.67% have identified themselves as Black/African-American. (Id. at ¶ 19.)*fn5 All of the Defendants in this case are African-American and predominantly born and raised in Philadelphia. (Def.'s Mot. ¶¶ 9, 10.)

The Government responds by asserting that Defendant's claim is devoid of substantive merit, because this particular jury pool was drawn at random from a list developed under an approved jury selection plan. (Gov't's Resp. 3.) The Government contends that the composition of an individual defendant's jury pool is inconsequential, provided that it was drawn fairly from a cross section of the community. (Id. at 4.) The Government further contends that Defendant has not met his "fair cross section" burden, because he has not demonstrated a long-term systemic discrepancy between African-Americans in the relevant general population and those represented in Eastern District jury pool wheels. (Id. at 5-6.)

The Sixth Amendment fair cross section provision arises from the traditional notion that as an instrument of public justice, a "jury [must] be a body truly representative of the community." Taylor v. Louisiana, 419 U.S. 522, 527 (1975).*fn6 Objectives of such a requirement are to avoid arbitrary skewing against the "common-sense judgment of the community" and, to avoid the "appearance of unfairness that would result from excluding large groups of individuals, not on the basis of their ability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background." United States v. Weaver, 267 F.3d 231, 236 (3d Cir. 2001) (quoting Lockhart v. McCree, 476 U.S. 162, 175 (1986)) (internal quotation marks omitted). Individual juries are not required, however, to consist of any specific demographic makeup. Taylor, 499 U.S. at 538. Absent systematic exclusion of distinctive groups from "jury wheels, pools of names, panels, or venires from which juries are drawn," a jury is presumed to be representative of the relevant community. Id.

The Jury Selection Service Act of 1968 ("JSSA") codifies the Sixth Amendment cross section right. Weaver, 267 F.3d at 236. The 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 or division wherein the court convenes." 28 U.S.C. § 1861. Congress determined that "voter registration lists or [] lists of actual voters" should be the principle source from which potential juror names are to be randomly selected. 28 U.S.C. § 1863(b)(2). Names should be drawn from additional sources "where necessary to foster the policy and protect the rightssecured by sections 1861 and 1862 . . . ."Id.JSSA claims are analyzed using a Sixth Amendment fair cross section standard. Weaver, 267 F.3d at 236 (citing United States v. Test, 550 F.2d 577, 584-85 (10th Cir. 1976) (en banc)).In the Eastern District of Pennsylvania, grand and petit juries are randomly selected for criminal and civil trials pursuant to the Jury Plan. (Jury Plan (on file with Court).)*fn7

In order to establish a prima facie fair cross section violation under the Sixth Amendment or the JSSA, a defendant has the burden of demonstrating:

(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 under-representation is caused by the 'systematic exclusion of the group in the jury selection process.' Weaver, 237 F.3d at 237 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).

Defendant has failed to make a prima facie showing that the Jury Plan's system of selecting jurors from the entire Eastern District violates the fair cross section of the community requirement. We will address ...


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