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United States v. Ford

United States District Court, E.D. Virginia, Alexandria Division

March 6, 2017

UNITED STATES OF AMERICA
v.
BERNARDO EUGENE FORD, JR., Defendant.

          MEMORANDUM OPINION AND ORDER

          GERALD BRUCE LEE, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant Bernardo Eugene Ford, Jr.'s Motion to Strike Jury Panel (Dkt. No. 124). Because Defendant believes the jury is disproportionally white, he moves pursuant to 28 U.S.C. § 1867(a) & (f) to either: (a) stay the action to allow for discovery relating to the jury selection process; (b) dismiss the jury panel and select one that is more representative of the Northern Virginia community; or (c) add diverse jurors to the current jury panel.

         The first issue is whether, pursuant to 28 U.S.C. § 1867(f), the Court should stay the proceedings to allow Defendant to conduct discovery relating to the jury selection process. The Court declines to stay the proceedings to allow additional discovery because Defendant already has access to the records required to be disclosed under 28 U.S.C. § 1867(f).

         The second issue is whether, pursuant to 28 U.S.C. § 1867(a), the Court should dismiss the indictment or stay the proceedings on the ground that the clerk's office substantially failed to comply with the procedures for selecting a petit jury. The Court declines to dismiss or stay this action because Defendant failed to make a prima facie showing of a substantial failure to comply with the appropriate procedures for selecting a petit jury. Accordingly, the Court DENIES Defendant's motion.

         I. BACKGROUND

         The Superseding Indictment alleges that Defendant and "John Doe" killed a person in the course of robbing the person of drugs and money, and the Superseding Indictment charges Defendant with: (1) one count of Hobbs Act conspiracy in violation of 18 U.S.C. § 1951; (2) one count of Hobbs Act robbery in violation of 18 U.S.C. §§ 2 & 1951; and (3) one count of causing a death through the use of a firearm in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii), & 924(j).

         A three- to four-day jury trial was set for March 6, 2017. On March 3, 2017, Defendant filed the instant motion now before the Court. Defendant argues that he is harmed by the present jury panel because it fails to comport with the intent of constitutional and statutory rights-namely, a fair trial. In support of his motion, Defendant notes that he is African American, that whites compose 83 percent of the 54-person jury panel, that the number of whites on the jury panel is disproportionate to the population in the Alexandria Division, and that Virginia has a "long history of discrimination." Defendant's brief does not cite any case, binding or otherwise, in which a court has granted the relief that Defendant seeks based on the arguments that Defendant has put forth. In addition, Defendant has not pointed to any evidence of a trial atmosphere that has been influenced by press coverage or other external factors.

         II. DISCUSSION

         A. Standard of Review

         The Sixth Amendment to the Constitution provides:

In 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, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const, amend. VI. 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. Pursuant to section 1861 of the JSSA,

[i]t is the policy of the United States 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. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.

28 U.S.C. § 1861. The JSSA allows the defendant to inspect the records used in connection with the jury selection process during the preparation and pendency of a motion to stay the proceedings or dismiss the indictment under the statute. 28 U.S.C. § 1867(f); United States v. Jones, 533 F.App'x 291, 299 (4th Cir. 2013). The JSSA also allows a defendant, before voirdire, to move for a dismissal of the indictment or a stay of the proceedings against him on the basis of substantial failure to comply with the JSSA's rules for jury selection. United States v. Meredith, 824 F.2d 1418, 1424 (4th Cir. 1987). If the trial court finds a ...


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