United States District Court, D. Massachusetts
OPINION AND ORDER
GEORGE A. O'TOOLE, Jr., District Judge.
On June 27, 2013, a grand jury returned an indictment that charges the defendant with multiple crimes arising from the detonation of two improvised explosive devices at the 2013 Boston Marathon. On August 22, 2014, the defendant moved to dismiss the indictment based on the selection of the grand jury who returned the indictment, arguing various violations of the District of Massachusetts Plan for Random Selection of Jurors (the "Plan"), the Jury Selection and Service Act (the "Act"), and the Sixth Amendment to the United States Constitution. On October 17, the Court denied the motion. United States v. Tsarnaev, No. 13-cr-10200-GAO, 2014 WL 5308084 (D. Mass. Oct. 17, 2014).
In November 2014, approximately 3000 summonses were mailed to potential jurors for the selection of a petit jury in this case. On December 29, pursuant to 18 U.S.C. § 3432, the defendant was furnished with a list of those veniremen. On January 5, 2015, jury selection commenced with approximately 1373 qualified jurors coming to the courthouse to complete jury questionnaires over the course of three days. Because of space limitations at the courthouse, the summonsed jurors were divided into six panels of a little more than 200 jurors each. With a few minor exceptions due to scheduling conflicts of a few jurors, the panels of jurors were summonsed in order from the list of veniremen, with the first 200 coming in on Monday morning, the second 200 coming in on Monday afternoon, and so on. The defendant received a list of jurors who completed questionnaires at the end of each day. On January 7, after all questionnaires had been completed, the defendant received a list of all jurors in what is known informally as the "Judge's List, " a list of all prospective jurors who completed questionnaires and remained in the pool.
On January 2, the Friday before jury selection began, the defendant filed a motion for the production of records regarding the summonsing of jurors for the petit jury. On January 20, the Court met with the Jury Administrator, who then began assembling the requested materials. On January 21, the Court indicated to the defense that the motion was generally granted, subject to data maintenance and retrieval. On February 5, the Court memorialized the granting of the motion in a written order. On February 13, the Jury Administrator provided the jury records.
On February 26, the defendant filed a second motion to dismiss the indictment, arguing that the procedures used to select the petit jury in this case violated the Plan, the Act, and the fair cross-section requirement of the Sixth Amendment. On March 4, I denied the motion in open court, noting that an explanatory opinion would follow. This is that opinion.
Section 1867(a) of Title 28 of the United States Code provides:
In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
Invoking this provision, the defendant moves to dismiss his indictment, arguing that: (1) the Plan was violated by re-ordering each panel of jurors after they completed questionnaires; and (2) the Plan itself violates the fair cross-section requirement of the Sixth Amendment because it permitted the excuse, upon request, of any person over the age of 70, and because it supposedly resulted in the underrepresentation and systematic exclusion of African-Americans.
A. Timeliness of Motion
As an initial matter, the defendant's claim under the Act appears untimely. A defendant "may move to dismiss the indictment... on the ground of substantial failure to comply" with the Act in the procedures for the selection of a petit jury "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier." Id . Here, the defendant did not move to dismiss the indictment before voir dire. Additionally, he did not do so within seven days after receipt of the Judge's List on January 7, the date he could have discovered any purported deficiencies based on the order of jurors, nor did he move within seven days after receipt of the jury records on February 13, the date he could have discovered any purported deficiencies based on fair cross-section requirements. His present motion can be denied on an untimeliness basis alone.
B. Reordering of Jurors Within Each Panel
Even if his motion were considered timely, it lacks merit on substantive grounds as well. As to the reordering of jurors within each panel, the defendant's argument is premised on a fundamental misunderstanding. As was explained to the defendant on January 9, the reordering of jurors within each panel had nothing to do with "non-random factors such as arrival time" as the defendant now alleges. (Second Mot. to Dismiss Indictment and Stay Proceedings Pending Reconstituting Jury Wheel to Conform with Statutory and Constitutional Requirements at 2 (dkt. no. 1080).) In each session, after all jurors had checked in, a computer program randomly ...