MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on defendant James Nathaniel Watts's motion to have his jury selected from the county of the alleged offense (Alexander County, Illinois) and to prevent the transformation of the racial demographics of the venire (Doc. 363). In his motion, Watts argues that 18 U.S.C. § 3235 requires that the jury in this capital case be selected exclusively from Alexander County. The Government has responded to the motion (Doc. 387).

I. Background

Watts has been charged in this case in a two-count Indictment (Doc. 15). Count 1 charges Watts with the May 15, 2014, attempted armed bank robbery of the First National Bank in Cairo, Illinois, in violation of 18 U.S.C. § 2113(a), (d) and (e). The indictment further alleges that in attempting to rob the bank Watts used dangerous weapons to assault or put in jeopardy the life of another person and, in fact, killed Anita Grace and Nita Smith. Count 2 charges Watts with possessing a firearm as a felon.

Because the indictment alleges that death resulted from the attempted bank robbery, the possible penalty should Watts be convicted of Count 1 is death or life imprisonment. See 18 U.S.C. § 2113(e). The Government seeks the death penalty under the Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-98, and accordingly, pursuant to § 3593(a), has filed a Notice of Intent to Seek the Death Penalty (Doc. 92).

The offenses charged in the Indictment were alleged to have occurred in Alexander County, which is within the Southern District of Illinois. The trial is scheduled to take place at the federal courthouse in Benton, Illinois. Pursuant to the Court's Plan for the Random Selection of Jurors ("Jury Plan"), the Court must select jurors for all cases tried in Benton from twenty-seven counties — including Alexander County — within the Southern District. The Jury Plan designates these counties as the Benton Division. The Benton courthouse is the only operational courthouse within the Benton Division.

II. Analysis

A. Relevant Constitutional and Statutory Provisions

Both the Constitution and the laws of the United States have provisions relating to location of the trial of, or selection of jurors in, criminal cases. Provisions requiring that jurors be selected from areas in relation to the site of the charged offense are often referred to as vicinage requirements.

The issue is first addressed in Article III of the Constitution, which provides that, generally, a defendant must be tried in the state of the offense: "The Trial of All Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." U.S. Const. art. III, § 2, cl. 3 (emphasis added). The Sixth Amendment adds the requirement that the jurors be drawn from the predetermined judicial district where the offense was committed:

U.S. Const. amend. VI (emphasis added). The principle that a defendant should be tried by the community is one of the fundamental principles of our judicial system. Accordingly, the Supreme Court has read into the Sixth Amendment a guarantee that a jury will be composed of a fair cross-section of the community, Taylor v. Louisiana, 419 U.S. 522, 530 (1975), and Congress has codified that requirement in the Jury Selection and Service Act of 1968 ("JSSA"), 28 U.S.C. § 1861 et seq.

The statute at the heart of Watts's motion further expresses a preference for holding a capital criminal trial in the county of the offense:

18 U.S.C. § 3235 (emphasis added). A prior version of this statute was included in the Judiciary Act of 1789 and additionally provided that where the trial could not be held in the county where the offense was committed without great inconvenience, "twelve petit jurors at least shall be summoned from thence." Judiciary Act, ch. XX, § 29, 1 Stat. 73, 88 (1789), available at http://www.fjc.gov/history/home.nsf/page/landmark_02_txt.html. The original provision of the Judiciary Act of 1789 calling for jurors to be selected from the county of the offense was repealed in 1862. Zicarelli v. Gray, 543 F.2d 466, 478 n. 60 (3d Cir. 1976) (citing Act of July 16, 1862, ch. 189, § 2, Pub. L. No. 37-160, 12 Stat. 589); United States v. Parker, 19 F.Supp. 450, 459 (D.N.J. 1937) (noting that in 1862 Congress realized the difficulty of obtaining an impartial jury where all jurors are selected from the county of the offense).

B. Parties' Positions

Watts argues that because the "trial" of a capital case includes the empanelment of a jury and because "venue" (as appears in the title of the statute) has historically been understood as the location from which a jury is selected, § 3235 requires the jury be selected from the county where the offense occurred unless greatly inconvenient. He argues that this interpretation of § 3235 ensures that the jury's decision reflects the conscience of the unique community effected by the offense. He also notes that the racial make-up of the population1 in the Benton Division (5% African-American) is markedly different than that of Alexander County (32.7% African-American). Watts, who is African-American, argues this disparity impermissibly dilutes African-Americans' representation in the jury venire, and he asks the Court to remedy this disparity by selecting only jurors from Alexander County despite the fact that it would be in contravention of the Jury Plan.

The Government argues that the plain language of § 3532 neither requires nor supports selecting jurors exclusively from the county of the offense, and that the history of the law refutes that Congress intended such a result. The Government also counters Watts's suggestion — he does not overtly argue this — that the failure to limit the jury venire to Alexander County violates his Sixth Amendment and JSSA rights to a jury composed of a fair cross-section of the community, reiterating and incorporating the constitutional arguments it made in response to other motions filed by Watts challenging the constitutionality of the selection of his jury.

C. Application

The Court first notes that, as Watts has admitted, every court to consider his statutory argument has rejected it. The Court does likewise for many of the same reasons set forth in United States v. Ciancia, No. 2:13-cr-902-PSG (C.D. Cal. Sept. 3, 2015), attached to the Government's response to Watts's motion, and in United States v. Savage, No. 07-550-03, 2012 WL 4616099 (E.D. Pa. Oct. 2, 2012).

First, the plain language of § 3235 does not require that jurors be selected from the county of the offense, only that the trial be held there if not greatly inconvenient.2 In the absence of any persuasive authority or compelling reason, the Court will not construe the word "trial" or "venue" so broadly as to include the procedures used to draw the venire for Watts's case. This Court agrees with the Savage court:

Savage, 2012 WL 4616099, at *2.

Second, the Court does not believe Congress intended for capital case jurors to be selected exclusively from the county of the offense. It originally had this intent in 1789 when it passed the Judiciary Act of 1789, but after realizing the difficulty obtaining impartial jurors from the immediate vicinity of the crime, it eliminated the requirement in 1862 and has not reenacted it since then. There is simply no support for the proposition that Congress intended in enacting § 3235 for jurors in capital cases to all come from the county of the offense.

With respect to Watts's suggested Sixth Amendment argument, he has not argued that the selection of jurors is unconstitutional because the jurors do not come from "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. Indeed, they will if the Court proceeds as planned to select jurors randomly from the Benton Division of the Southern District of Illinois.3 "[N]either the language of the vicinage provision [of the Sixth Amendment] nor its legislative history suggests that the geographical area from which the jury is summoned must be smaller than the judicial district created by Congress." United States v. Grisham, 63 F.3d 1074, 1080 (11th Cir. 1995); see United States v. Ashley, 54 F.3d 311, 315 (7th Cir. 1995) (finding "no constitutional mandate that requires federal courts to draw jurors from any more narrowly defined geographic area than that provided in the" Southern District of Illinois Jury Plan); Zicarelli v. Gray, 543 F.2d 466, 482 (3d Cir. 1976) ("The petit jury was drawn from both the state and the federal judicial district within which the crimes occurred, and the state-and-district guarantee of the Constitution promises no more.").

Furthermore, in his motion Watts has not even attempted to show two of the three essential elements to make a prima facie case of a fair cross-section violation:

Duren v. Missouri, 439 U.S. 357, 364 (1979). Watts's statistical evidence compares only the demographics of Alexander County as compared to the Benton Division, not the demographics of the Benton Division as compared to the jury venire, the relevant inquiry for a fair cross-section challenge. And nowhere in his motion does he ever even mention systematic exclusion. Watts has not articulated any other recognizable Sixth Amendment claim in the pending motion. For these reasons, the Court rejects any constitutional challenge that might be advanced in this motion without prejudice to the arguments raised in Watts's other motions challenging the constitutionality of jury selection (Docs. 153 & 362).

III. Conclusion

For the foregoing reasons, the Court DENIES Watts's motion to have his jury selected exclusively from Alexander County and to prevent the transformation of the racial demographics of the venire (Doc. 363).

IT IS SO ORDERED.