Case: 14-11977   Date Filed: 02/26/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11977
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 2:12-cr-00201-CG-B-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

DARRIE DEWAYNE DEES,
a.k.a. Dee-Bo,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                            (February 26, 2015)

Before HULL, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Darrie Dewayne Dees appeals his conviction for being a felon in possession

of a firearm. He argues that the district court abused its discretion by denying his

motion, under Rule 18 of the Federal Rules of Criminal Procedure, to hold his trial

in Selma, Alabama, instead of Mobile, because it prevented him from being tried

by a jury comprised of jurors who live near Selma and are more comparable to him

in racial and socioeconomic terms. He also argues that the court violated the Fifth

and Sixth Amendments and the Jury Selection and Service Act (JSSA), 28 U.S.C.

§§ 1861 et seq., by seating a jury drawn from the district-at-large instead of solely

from the Northern Division of the Southern District of Alabama. We will address

each argument in turn.

                                      I. Rule 18

      A district court has discretion to fix the place of a trial in any division within

the district, and we review the district court’s decision only for abuse of discretion.

United States v. Betancourt, 

, 755–56 (11th Cir. 1984).

      Rule 18 states:

      Unless a statute or these rules permit otherwise, the government must
      prosecute an offense in a district where the offense was committed.
      The court must set the place of trial within the district with due regard
      for the convenience of the defendant, any victim, and the witnesses,
      and the prompt administration of justice.

Fed. R. Crim. P. 18 (emphasis added).

      Rule 18 allows a court to consider the prompt administration of justice
      in fixing the place of trial, and matters of security clearly fall within
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      that consideration. In addition, the prompt administration of justice
      includes more than the case at bar; the phrase includes the state of the
      court’s docket generally. The court must balance not only the effect
      the location of the trial will have upon the defendants and their
      witnesses, but it must weigh the impact the trial location will have on
      the timely disposition of the instant case and other cases.

      United States v. Merrill, 

, 1304 (11th Cir. 2008) (citations and

internal quotation marks omitted).

      The district court did not abuse its discretion by denying Dee’s motion to fix

the trial in Selma. The court considered Dees’s convenience and that of the

witnesses in holding trial in Selma but found the convenience interests outweighed

by security and safety concerns in both Selma and Mobile, as well as issues

concerning the prompt administration of justice in Mobile. The district court found

that a trial in Selma would require temporarily transferring court security officers

from Mobile to Selma. This, in turn, would negatively impact the security of the

Mobile courthouse and would force that court to put all trials and hearings on hold

while the government tried Dees in Selma. See 

issues,

including withering ceiling tiles and asbestos in the Selma courthouse, weighed

against holding trial there.

      As such, the court considered all of the Rule 18 factors and found that they

favored leaving the trial in Mobile. Dees may disagree with the weight accorded to

some of the factors the district court considered, but that is not grounds for finding

an abuse of discretion. See Waters v. Int’l Precious Metals Corp., 

,
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1293 (11th Cir. 1999) (noting that disagreement with the district court does not

support finding an abuse of discretion). Accordingly, we affirm in this respect.

                   II. Fifth and Sixth Amendments and the JSSA

      We review de novo constitutional challenges to jury selection processes.

United States v. Grisham, 

, 1077 (11th Cir. 1995). We also review de

novo claims under the JSSA. United States v. Carmichael, 

, 1277–

79 (11th Cir. 2009).

                               A. Fifth Amendment

      To establish a Fifth Amendment equal protection violation in the jury

selection context, a defendant must show “(1) that he or she is a member of a group

capable of being singled out for discriminatory treatment, (2) that members of this

group were substantially underrepresented on the venire, and (3) that the venire

was selected under a practice providing an opportunity for discrimination.”

Cunningham v. Zant, 

, 1013 (11th Cir. 1991). Dees did not present

any data or argument to support the second element of his equal protection

argument. Rather, he only asserts that the Northern Division has a higher

proportion of African-Americans living within its area. It does not follow that

African-Americans were underrepresented on the venire. Therefore, he failed to

establish a prima facie case of a Fifth Amendment violation. See 

Amendment


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      The Sixth Amendment to the United States Constitution guarantees a speedy

and public trial in the state and district “where the crime was committed, but there

is no constitutional right to trial within a division.” 

(citing United States v. Anderson, 

, 704, 705, 

, 1216,

1217 (1946)). The Supreme Court has explained that this requires “the selection of

a petit jury from a representative cross section of the community.” Taylor v.

Louisiana, 

, 528, 

, 697 (1975). The judicial district of

the United States Courts satisfies the “district” and “community” requirements.

See 

–80 (rejecting defendant’s argument that the Sixth

Amendment requires a venire from the division where the crime occurred).

      To establish a prima facie violation of this constitutional requirement, the

defendant must demonstrate:

      (1) that the group alleged to be excluded is a “distinctive” group in the
      community;

      (2) that the representation of this group in venires from which juries
      are selected is not fair and reasonable in relation to the number of
      such persons in the community; and

      (3) that this underrepresentation is due to systematic exclusion of the
      group in the jury-selection process.

Duren v. Missouri, 

, 364, 

, 668 (1978). Failure to

establish any one of these elements results in the failure of the entire Sixth

Amendment claim. United States v. Pepe, 

, 649 (11th Cir. 1984). To


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determine whether jury representation is fair and reasonable, we will only look to

the “absolute disparity produced by the selection process,” which, in such cases,

means there must be more than a ten percentage point disparity between the

percentage of the group in the population and the percent of the group in the jury

pool. 

marks omitted). The community to which the venires

are compared is the district, not the division. See 

–80.

Dees did not present below to the district court nor does he provide on appeal any

data that would establish the second criterion for a prima facie violation of the

Sixth Amendment fair cross-section requirement. See 

.

                                       C. JSSA

      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. For a violation of the JSSA to be substantial, and thus provide

relief, it must frustrate one of the core principles underlying the statute, such as the

fair cross-section principle. 

. The standard for

assessing a JSSA fair cross-section violation is the same as that used to determine a

fair cross-section violation under the Sixth Amendment. United States v.

Rodriguez, 

, 1510 n.1 (11th Cir. 1985). Therefore, because his Sixth

Amendment claim fails, his JSSA claim also fails.


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AFFIRMED.




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