ERIC F. MELGREN, 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.
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.
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.
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.
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.
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.
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.
The Sixth Amendment guarantees the accused the right to an "impartial jury" of the "State and district wherein the crime shall have been committed. . . ."
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."
In Duren v. Missouri,
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."
The Tenth Circuit, however, has provided a three-part test for determining whether a group is distinctive.
Courts addressing this issue have found that groups characterized by race, religion, ethnicity, and gender meet this distinctiveness standard.
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.
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.
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.
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.
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:
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.
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.
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.
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."
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."
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.
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.
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."
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."
In sum, the Court rejects Defendants' fair-cross-section claim because they have not established the first prong of the Duren test—that the excluded group is a distinctive part of the community.
The fair-cross-section requirement is a means of assuring "not a representative jury (which the Constitution does not demand), but an impartial one (which it does)."
Defendants next argue that by excluding citizens of three jury divisions from petit jury service, the jury selection plan violates those citizens' rights under the Fifth and Sixth Amendments, as well as rights established under the Jury Act.
"In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties."
An example of "injury in fact" was provided in Powers v. Ohio. In Powers, a white defendant challenged the prosecution's exclusion of black jurors from his petit jury through the use of peremptory strikes. The defendant's claim rested on the third-party equal protection claims of the jurors excluded by the prosecution because of race.
In a similar case, Campbell v. Louisiana,
But here, Defendants have not suffered a cognizable injury. Simply put, the exclusion of the three jury divisions that lack an active federal courthouse from petit jury service is not comparable to the systematic exclusion of black jurors. The current plan has no effect on the integrity or the public perception of the court system. It does not discriminate on the basis of race or any other legally cognizable characteristic that speaks to the core of one's identity. This is not a case such as Powers, where the prosecution used peremptory strikes, in open court, to exclude jurors simply because they were black. Of course the jurors who witnessed such blatant racial discrimination would question the fairness of the criminal proceeding, calling into question those jurors' eventual verdict. However, there is no reason to believe that prospective jurors in Defendants' upcoming trial will notice that citizens of, say, Morton County
Of course, Defendants are not required to rely on Powers and Campbell to prove "injury in fact," so long as Defendants show they have a "sufficiently concrete interest" in the outcome of the issue in dispute.
The Court rejects this argument. For one, it is impossible to ascertain the "political ideology" or "belief system" that Defendants contend is so important. The only evidence presented by Defendants concerns political affiliation amongst registered voters and the votes for each candidate in the 2016 Presidential election. The Court is unable to derive from these statistics the "body of doctrine, myth, belief, etc., that guides" these groups.
The Constitution requires that Defendants be tried by a jury from a fair cross-section of the community. As the Court held in Section II.A., the current plan to summon jurors only from the Wichita-Hutchinson district ensures that Defendants will be afforded that right. Whether the jury selection plan infringes upon the rights of the citizens of the three excluded divisions is an entirely separate issue. And Defendants have been unable to establish a nexus between the two. Defendants therefore do not have a "sufficiently concrete interest" in challenging the current jury selection plan as applied to the citizens of the Dodge City, Fort Scott, and Salina jury divisions.
In Powers, the Court held that the defendant had a close relation to the jurors because of the nature of voir dire, which "permits a party to establish a relation, if not a bond of trust, with the jurors . . . [that] continues throughout the entire trial and may in some cases extend to the sentencing as well."
However, those two common interests are not present here. Defendants and the excluded jurors do not have a common interest in eliminating racial discrimination from the courtroom because jury selection plan does not discriminate on the basis of race. And even though Defendants assert that the current plan discriminates on the basis of political party, the Court is not so convinced. Currently, the plan calls for jurors to be summoned at random from the official lists of registered voters in each of the counties comprising the Wichita-Hutchinson division.
In other words, Republicans are slightly unrepresented under the current plan. "[A]bsolute disparity measures the difference between the percentage of a group in the general population and its percentage in the qualified wheel . . . ."
Additionally, there is no risk that a conviction, if obtained, would be reversed if the excluded jurors' rights are not asserted in this case. As the Court held above, the current plan, which excludes the Dodge City division from petit jury service, does not infringe upon Defendants' rights. The issue of whether or not citizens from southwest Kansas have had their rights violated would have no bearing on the soundness of a conviction, if obtained. Because Defendants' rights are not implicated, Defendants have no greater interest in whether citizens in the Dodge City division have been denied their right to serve on a jury than Defendants have an interest in whether citizens of a different state have been denied the right to serve on a jury. Accordingly, Defendants do not have a close relation to the citizens excluded from petit jury service and are unable to satisfy the second element to invoke standing.
Because Defendants are unable to satisfy either of the first two elements, the Court need not reach the issue of whether the citizens excluded from petit jury service are likely or able to assert their own rights.
The plan ensures that Defendants will be tried by a jury from a fair cross-section of the community as required by the Sixth Amendment and the Jury Act. Although certain citizens are excluded from petit jury service, Defendants have not shown how this harms them or that they have a sufficiently close relationship to challenge the plan on those citizens' behalf. Accordingly, it would not be proper for the Court to address the issue of whether those citizens' rights have, in fact, been violated.
This is especially true where "the applicable constitutional questions are ill-defined and speculative."
The demographic differences between the Dodge City and the Wichita-Hutchinson divisions are not legally cognizable and will not reflect adversely on the ability of the jury panel to perform its jury function with impartiality, either in actuality or in appearance.
Furthermore, Defendants lack standing to challenge the jury selection plan on behalf of citizens residing within the Dodge City, Fort Scott, and Salina jury divisions. "In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties."
While it is unnecessary to list the Kansas counties encompassed by the other four jury divisions, it is worth noting that every single county in Kansas is included in one of the six jury divisions.
