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jurors .. .." 28 U.S.C. § 1863(a). Each district in New York selects grand and petit juries pursuant 
to a plan adopted by the judges of the district and approved by the Judicial Conference of the 
Second Circuit. Id.; see also United States v. Bahna, 68 F.3d 19, 23 (2d Cir. 1995). The plan for 
the Southern District has been in place since February 2009. See Amended Plan for the Random 
Selection of Grand and Petit Jurors in the Southern District of New York, available at 
https://www.nysd.uscourts.govisitesidefault/files/pdfijutyplatfeb_2009.pdf (the "SDNY Jury 
Plan," or the "Plan"). 
Under the terms of the SDNY Jury Plan, the initial selection of persons to be considered 
for service as grand and petit jurors are made at random from voter registration lists. SDNY Jury 
Plan at Art. III.A. Two Master Jury Wheels are constructed from these lists: one for the Manhattan 
courthouse and one for the White Plains courthouse. Id. at Art. III.B. The Manhattan Master Jury 
Wheel draws from voter lists from the following counties: New York, Bronx, Westchester, 
Putnam, and Rockland. See id. at Art. III.C. The White Plains Master Jury Wheel draws from 
voter lists from the following counties: Westchester, Putnam, Rockland, Orange, Sullivan, and 
Dutchess. See id. Both Master Jury Wheels are emptied and refilled no later than September 1 
following the date of each Presidential Election. Id. at Art. III.B. 
To meet anticipated demand for jurors, names are drawn randomly from the Master Jury 
Wheels. Id. at Art. III.D. These individuals are sent a questionnaire to examine their qualifications 
and availability for jury service. Id. Pursuant to 28 U.S.C. § 1865(b), all persons are qualified for 
jury service unless he or she: 
(1) Is not a citizen of the United States at least eighteen years old who has resided for a 
period of one year within the judicial district; 
(2) Is unable to read, write, and understand English with a degree of proficiency sufficient 
to fill out the juror qualification questionnaire; 
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(3) Is unable to speak English; 
(4) Is incapable, by mental or physical infirmity, to render satisfactory jury service; or 
(5) Has a charge pending for the commission of, or has been convicted in a State or Federal 
court, of a felony and his or her civil rights have not been restored. 
Id. at Art. VII. Additionally, certain persons are declared exempt from jury service, including 
active service members in the Armed Forces of the United States, members of fire or police 
departments, and public officers in the executive, legislative, or judicial branches of the State or 
Federal Government who are actively engaged in the performance of official duties. Id. at Art. V; 
28 U.S.C. § 1863(b)(6). Finally, because jury service for certain groups of individuals would 
"entail undue hardship or extreme inconvenience," those individuals are excused or deferred upon 
individual request. SDNY Jury Plan at Art. VI. These groups include: 
(1) Persons over 70 years of age; 
(2) Persons having legal custody and active daily care of a child under the age of 12, or who 
are essential to the daily care of aged or infirm persons; 
(3) Persons who have satisfactorily served as grand or petit jurors in a State or Federal court 
within the last four years; 
(4) Volunteer safety personnel; and 
(5) Persons as to whom a judge finds, for any other reason, that jiffy service would 
constitute an undue hardship and extreme inconvenience. 
Id. 
The names of individuals who are determined to be qualified to serve as jurors, and are not 
"exempt, excused, or deferred," comprise the Qualified Jury Wheels—one for service at the 
Manhattan courthouse and one for service at the White Plains courthouse. Id., Art. IV.A-B. When 
jurors are needed, names are drawn randomly from the Qualified Jury Wheels, and summonses are 
sent to those whose names are drawn. Id., Art. IV.C. After being summoned, these individuals 
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are randomly assigned to jury panels as needed, for individual trials and grand juries at the 
courthouse corresponding to the Qualified Wheel from which they were drawn. Id. 
B. 
Applicable Law 
"The Sixth Amendment guarantees a criminal defendant a jury selected from a fair cross 
section of the community." United States v. Rioux, 97 F.3d 648, 654 (2d Cir. 1996). In Duren v. 
Missouri, the Supreme Court articulated a three part test that defendants must meet in order to 
establish a prima facie violation of the fair cross-section requirement: (1) the excluded group is 
"distinctive"; (2) "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) the 
"underrepresentation is due to systematic exclusion of the group in the jury-selection process." 
439 U.S. 357, 364 (1979). 
C. 
Discussion 
The Government's decision to seek an indictment of the defendant from a grand jury sitting 
in White Plains was entirely appropriate and consistent with the Constitution, the JSSA, and the 
SDNY local rules. The defendant's claims to the contrary rest on a faulty premise: That a 
defendant who is likely to be tried in the Manhattan courthouse must be indicted by a grand jury 
sitting in that same courthouse. That is not the law. See infra Section XI.C.1. 
That foundational error is fatal to the defendant's fair cross-section claim. When the proper 
comparators are considered—the White Plains Master (or Qualified) Wheels to the voting age 
population of the counties from which juries in White Plains are drawn, rather than the defendant's 
apples-to-oranges comparison of the White Plains Qualified Jury Wheel to the population of the 
Manhattan "Division"—the defendant fails to establish unfair underrepresentation under the 
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second prong of the Duren test. Moreover, the defendant has not established that any disparity 
resulted from systemic exclusion of a particular group. Accordingly, the motion should be denied. 
1. 
The Defendant Was Properly Indicted by a Grand Jury Sifting in 
White Plains 
At the heart of the defendant's fair cross-section claim is her contention that the 
Government seeking an indictment from a grand jury sitting in White Plains—which was the only 
available grand jury that day, due to the global pandemic68—"was a deviation from the established 
practice of indicting defendants in the division where the offense is alleged to have occurred and 
where the case will be tried." (Def. Mot. 9 at 2). Because the offense is alleged to have occurred 
in the "Manhattan Division" and the defendant assumes that her jury trial will occur there too, she 
argues that the "appropriate comparison," for the purpose of her fair cross-section claim, "is 
68 This case was indicted on June 29, 2020, on which date the grand jury sitting in White Plains 
was the only available grand jury in the District. Beginning on or about June 25, 2020, grand jury 
quorums returned in Manhattan, but with substantially less availability than before the pandemic. 
As a result, the Government has sought indictments from grand juries sitting in White Plains and 
Manhattan, as availability permits. In this instance, the Government was prepared to indict on 
June 29, 2020, and the only grand jury available in this District on that day sat in White Plains. 
The global pandemic's effect on grand jury availability continues to evolve, but at no point have 
grand juries in White Plains or Manhattan resumed normal activity. 
The defendant speculates that the Government sought an indictment on June 29, 2020 
because of some arbitrary desire to arrest the defendant on July 2, 2020, one year to the day after 
a grand jury returned a sealed indictment charging Jeffrey Epstein with federal crimes on July 2, 
2019. (See, e.g., Def. Mot. 9 at 1, 8). Setting aside the silliness of marking the anniversary of an 
indictment's return, as opposed to the anniversary of the arrest itself, which took place on July 6, 
2019, there is no reality in the defense's conspiracy theories. As the defense knows full well, the 
Government attempted to locate and arrest the defendant on July 1, 2020 but was unable to confirm 
her location until obtaining cellphone location data identifying her location and enabling her arrest 
on July 2, 2020. The defense knows this because they have the warrant application that the 
Government submitted on July I, 2020 for the defendant's cellphone location information, in 
which the Government stated that it had been unable to confirm the defendant's location. In other 
words, the Government indicted the defendant as soon as it was prepared to present the evidence 
it had gathered to a grand jury, and the Government arrested the defendant as soon as it was able 
to locate her after obtaining that indictment. 
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therefore between the Manhattan Division and the qualified wheel for White Plains." (Def. Mot. 
9 at 6). This premise is faulty. 
"It is well-settled that neither the jury selection statute nor the Constitution requires that 
jurors be drawn from an entire district." Bahna, 68 F.3d at 24 (collecting cases); see also United 
States v. Plaza-Andrades, 507 F. App'x 22, 26 (2d Cir. 2013) ("[O]ur precedent makes clear that 
the Sixth Amendment does not entitle a defendant to be tried in a geographic location any more 
specific than the District where the offense was allegedly committed."). Rather, "[c]ourts have 
broad latitude in defining the geographic area from which juries will be selected." United States 
v. Yonkers Contracting Co., Inc., 682 F. Supp. 757, 768 (S.D.N.Y. 1988). Consistent with the 
foregoing, the SDNY Jury Plan creates two separate Master Wheels—one for the White Plains 
courthouse and one for the Manhattan courthouse, each of which draws from certain counties, with 
some overlapping counties. SDNY Jury Plan Art. III.B, III.C. This is perfectly consistent with 
the JSSA, see 28 U.S.C. § 1869(e), and with longstanding precedent, as Judge Hand has explained: 
[T]he district and circuit courts have had power since the first 
Judiciary Act of 1789 to divide a district territorially in the interest 
of an impartial trial, of economy, and of lessening the burden of 
attendance. 
There cannot be the faintest question of the 
constitutionality of this statute; the courts have again and again 
recognized its validity. Furthermore, it would be impossible in 
practice to administer it, if it were a condition that that the divisions 
made must be so homogeneous that they showed an equal 
percentage of all possible groups. There are probably no districts in 
the Union, which can be divided without disclosing in the sections 
different racial, religious, political, social or economic percentages. 
To demand that they shall not, would be a fantastic pedantry which 
would serve no purpose and would put an end to the statute. 
United States v. Gotrr•ied, 165 F.2d 360, 364 (2d Cir. 1948); accord Bahna, 68 F.3d at 24-25. 
There is accordingly no constitutional or statutory basis for the defendant's claimed 
entitlement to a grand jury drawn from the population of the same "division" in which the offense 
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occurred and she assumes she will ultimately be tried. To the contrary, the Second Circuit has 
rejected a similar claim. In Bahna, a defendant in the Eastern District of New York was initially 
convicted at a trial held at the Brooklyn courthouse; after that conviction was vacated, he was 
again convicted, this time at a trial held at the Uniondale courthouse. 68 F.3d at 20. Under the 
relevant jury plan, jurors for trials held in Brooklyn were drawn from the entire Eastern District, 
while jurors for trials held in the "Long Island Division," which included the Uniondale 
courthouse, were drawn from Nassau and Suffolk Counties. Id. at 24. The defendant argued that 
the district court erred by selecting the jury from the "Long Island Division" wheel because there 
was under-representation of Blacks and Hispanics in that "division" as compared to the Eastern 
District as a whole. Id. at 23-24. The Second Circuit rejected the argument, finding that it "[wa]s 
based upon an improper premise." Id. at 24. Contrary to the defendant's claims, "[w]here a jury 
venire is drawn from a properly designated division, we look to that division to see whether there 
has been any unlawful or unconstitutional treatment of minorities." Id. (emphasis added). 
Consistent with Bahna, courts have repeatedly found that defendants in criminal cases have 
no constitutional or statutory right to a jury drawn from the entire district or from a particular 
geographic area within a district, such as the county or "division" where the offense was 
committed. See, e.g., Rutenberg v. United States, 245 U.S. 480, 482 (1918) (rejecting claim that 
defendant had Sixth Amendment right to jury drawn from entire district); United States v. Miller, 
116 F.3d 641, 659 (2d Cir. 1997) ("Th[e] [Sixth] Amendment's guarantees of an impartial jury 'of 
the State and district' in which the crime was committed does not require a narrower geographical 
focus than the district itself."); United States v. Richardson, 537 F.3d 951, 959 (8th Cir. 2008) (a 
criminal defendant "does not have a right to have his trial in or jurors summoned from a particular 
division of the state and district where the crime was committed"); United States v. Herbert, 698 
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EFTA00095292

F.2d 981, 984 (9th Cir. 1983) (finding that "[a] petit July may be drawn constitutionally from only 
one division and not the whole district"); Zicarelli v. Dietz, 633 F.2d 312, 318 (3d Cir. 1980) 
("[Tjthere is no constitutional right to a jury chosen from the division where the offense was 
committed or from the entire district which includes that division."); United States v. Florence, 
456 F.2d 46, 49-50 (4th Cir. 1972) (holding that a defendant has no constitutional or statutory right 
to a jury selected from the entire district or from a particular division). 
Because the defendant has no right to insist that either the grand or petit jury be drawn from 
any particular geographic area within the Southern District, she is wrong to assert that her fair 
cross-section claim must be analyzed against the geographic location in which the offense was 
committed or the trial is expected to occur. Rather, "[w]here a jury venire is drawn from a properly 
designated division, we look to that division to see whether there has been any unlawful or 
unconstitutional treatment of minorities." Bahna, 68 F.3d at 24 (emphasis added). Here, 
consistent with the SDNY Grand Jury Plan, the venire for the grand July that indicted the defendant 
was drawn from the voter lists of the following counties: Westchester, Putnam, Rockland, Orange, 
Sullivan, and Dutchess. That is undoubtedly a "properly designated division" pursuant to the 
JSSA. As noted, the Southern District is not divided into "divisions" by statute. See 28 U.S.C. 
§ 112(b). For purposes of the JSSA, district courts in such undivided districts have the authority 
to determine "divisions" comprised of "counties, parishes, or similar political subdivisions 
surrounding the places where court is held." 28 U.S.C. § 1869(e). Accordingly, while the SDNY 
Jury Plan neither creates nor ever uses the term "White Plains Division" or "Manhattan Division," 
it contemplates Master Jury Wheels drawn from two geographic areas that satisfy the definition of 
"division" under the JSSA. Thus, in evaluating the defendant's fair cross-section claim, this Court 
must "look to that division"—the counties from which the White Plains Master Wheel is drawn-
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"to see whether there has been any unlawful or unconstitutional treatment of minorities." Bahna, 
68 F.3d at 24 (emphasis added). 
In the face of this authority, the defendant cites only two district court cases for the 
proposition that "community" for purposes of a fair cross-section claim is "widely understood to 
mean the district or division where the trial will be held." (Def. Mot. 9 at 5 (emphasis added) 
(internal quotation marks and citation omitted)). Not only is the authority cited non-binding, but 
it is inapposite as well: both cases appear to concern instances in which the grand jury and trial 
jury sat in the same courthouse, and thus there was no cause to consider whether the same 
"community" was relevant to separate challenges to the grand and petit juries. See United States 
v. Johnson, 21 F. Supp. 2d 329, 334-35 (S.D.N.Y. 1998); United States v. Kenny, 883 F. Supp. 
869, 874-75 (E.D.N.Y. 1995). As such, neither case supports the proposition that where a 
defendant is challenging the selection of the grand jury, the relevant "community" is the 
population of the location in which her trial will be held. Such a comparison is unjustified, as 
Bahna makes clear: That case appears to involve conduct that occurred in Brooklyn, appears to 
have been indicted in Brooklyn, was originally tried in Brooklyn, and was later transferred to 
Uniondale, where it was tried with a jury drawn from the "Long Island Division." Yet the Second 
Circuit rejected the defendant's claimed entitlement to a jury drawn from Kings, Queens and 
Richmond counties, or the entire Eastern District, because that argument—like the defendant's 
here—was based on a flawed premise. 
The defendant's proposed rule—comparing the composition of the grand jury venire to the 
population of the expected trial location—makes little legal or practical sense. Where, as here, 
the defendant's challenge is to the indictment, the proceeding for which the defendant is entitled 
to expect a jury drawn from a fair cross-section of the community is not the trial, but the grand 
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jury proceeding itself. Indeed, that must be the case, as it is not yet determined where the trial in 
this matter will in fact occur. The defendant assumes that her trial will ultimately be held at the 
Manhattan courthouse. While that is likely to be the case, it is not necessarily so. Bahia again 
illustrates the point, as a case originally tried in Brooklyn was reassigned to Uniondale for the 
retrial "to accommodate trial congestion in the court's calendar during a period of judicial 
emergency . . . ." United States v. Soares, 66 F. Supp. 2d 391, 397 n.2 (E.D.N.Y. 1999). In the 
Southern District, cases are commonly transferred from one courthouse to another, including cases 
that are indicted in White Plains but tried in Manhattan. See supra Section XI.A.1 (collecting 
examples). That is entirely consistent not just with the foregoing authority, but also with the 
Southern District's Local Rules for the Division of Business. See SDNY Business Division Rules 
18, 19. Criminal cases are also sometimes transferred to other Districts for trial. See Fed. R. Crim. 
P. 21. Under the defendant's approach, it would be impossible for prosecutors to determine es 
ante that that they were seeking an indictment from a grand jury drawn from a representative cross-
section of the relevant community, because they would not yet know with certainty in which 
community the case will be tried. 
The defendant's argument therefore boils down to an unfounded complaint that it is "a 
deviation from the established practice" to seek an indictment in a courthouse other than the one 
in which the case will likely be tried. (Def. Mot. 9 at 2). This argument is inconsistent with the 
foregoing law that the defendant has no right to jurors drawn from any particular geographic area 
within the district. See also Rosencrans v. United States, 165 U.S. 257, 260-63 (1897) (finding no 
error in grand jury returning indictment in a division different from the division in which the trial 
proceeded). It also finds no succor in the SDNY Business Division Rules, which vest no rights in 
any parties and, in any event, contemplate that judges may reassign cases from one courthouse to 
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another. And it falls exceedingly flat on the facts of this case. The Government did not forum 
shop to achieve some perceived advantage. Rather, it sought a timely indictment from a grand 
jury in White Plains because it was the only grand jury with a quorum sitting in the Southern 
District on that date (a relatively rare situation created by an unprecedented public health crisis). 
In sum, the decision to indict the defendant in White Plains was entirely proper, and the 
lack of any constitutional or statutory basis for the defendant's contrary argument is fatal to her 
fair cross-section claims, as described below. 
2. 
The Defendant's Fair Cross-Section Claim Is Meritless 
The defendant's fair cross-section claim is based on the assertion that Black or African-
American and Hispanic or Latino individuals are unfairly underrepresented in the relevant jury 
pool. (Def. Mot. 9 at 5). While these are "distinctive" groups, satisfying Duren's first prong, the 
defendant's claim fails on each of the other two prongs. 
a. 
The Defendant Has Not Established that Blacks or Hispanics 
Are Unfairly Represented 
The second prong of the Duren test requires the Court to determine whether representation 
of either or both of the "distinctive" groups in venires from which juries are selected is not fair and 
reasonable in relation to the number of such persons in the community. Duren, 439 U.S. at 364. 
This requires determining the relevant comparators—Le, what is the "relevant jury pool" and what 
is the community "population" against which it is compared—as well as the appropriate method 
of statistical comparison. See RiOUX, 97 F.3d at 656. 
Here, the defendant contends that the relevant jury pool is the White Plains Qualified 
Wheel. (Def. Mot. 9 at 5-6). The Government believes that the relevant jury pool is the White 
Plains Master Wheel, but, as set forth below, the defendant's claim fails even using the White 
Plains Qualified Wheel. 
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"Neither the Supreme Court nor the Second Circuit has defined the `relevant jury pool' 
with any specificity." United States v. Rioux 930 F. Supp. 1558, 1565 (D. Conn. 1995). In a 
detailed survey of the case law, the district court in Rioux found that cases have examined different 
relevant pools, including the master wheel, the qualified wheel over a period of time, the venires 
appearing around the time of the defendant's trial, or some combination thereof. Id. Ultimately, 
the district court in Rioux found that the teaching of Duren and the Second Circuit's subsequent 
cases is that "the court must assess representativeness in the context of the systematic defect 
identified by the defendant." Id. at 1568. In that case, the claimed defects were in the construction 
of the qualified wheel and, therefore, the "relevant jury pool" was the "qualified wheel over the 
life of the wheel." Id. at 1575. 
Affirming that decision, the Second Circuit did not hold that the qualified wheel is 
necessarily the "relevant jury pool." Rather, after stating that the relevant jury pool "may be 
defined by: (1) the master list; (2) the qualified wheel; (3) the venires; or (4) a combination of the 
three," the Circuit noted that the parties had agreed that the district court properly used the qualified 
wheel over the life of the wheel as the "relevant jury pool." Rioux, 97 F.3d at 657. The court's 
acceptance of the qualified jury wheel as the "relevant jury pool" for that case—an issue which 
was not in dispute—does not mean it necessarily must be applied in all cases. Id. Indeed, in other 
cases where the claim of error was not focused on the construction of the qualified wheel, different 
"relevant jury pools" have been used by the Second Circuit. Most notably, in Biaggi, the main 
thrust of the defendant's fair cross-section claim was that reliance on voter registration lists 
systemically excluded African-Americans and Hispanics from jury service—a claim which is 
directed at the composition of the master wheel—and the Second Circuit identified the district's 
master wheel as the relevant jury pool. United States v. Biaggi, 909 F.2d 662, 677 (2d Cir. 1990). 
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Here, the defendant claims that "the primary reason" for the alleged underrepresentation is 
the Government's "choice to pursue an indictment from a grand jury drawn from the White Plains 
Division, as opposed to the Manhattan Division . . . ." (Def. Mot. 9 at 7). Even if this argument 
described a function of the jury selection process — though it does not — it would be directed at the 
how the particular Master Wheel is selected. It says nothing about the process by which a Master 
Wheel is reduced to the subset of qualified jurors contained in the Qualified Wheel. Because the 
"systematic defect" alleged by the defendant relates to the Master Jury Wheel, the White Plains 
Master Jury Wheel is the appropriate "relevant jury pool." Rioux, 930 F. Supp. at 1566-68. 
Although the Master Jury Wheel does not include reliable information regarding the race 
and ethnicity of the individuals selected from voter registration lists, the racial and ethnic makeup 
of the White Plains Master Jury Wheel can be estimated using geocoding and Bayesian Improved 
Surname Geocoding ("BISG") 69 Taking into account those estimates, the White Plains Master 
Wheel is 11.20% Black or African-American and 12.97% Hispanic or Latino. (Siskin Aff. at 
28). By contrast, the White Plains Qualified Wheel is 8.76% Black or African-American and 
10.48% Hispanic or Latino. (Id. at ¶ 17). 
The community population for purposes of assessing representativeness is the population 
eligible for jury service in the community. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 524 (1975) 
(focusing on population eligible for jury service); Rioux, 97 F.3d at 657 ("We conclude that the 
69 The defense motion references the expert report of an expert witness named Jeffrey O'Neal 
Martin ("Martin Aft"), which was prepared for the defense in United States v. Balde, 20 Cr. 281 
(KPF), where a similar motion is currently pending before Judge Failla. The Government is 
likewise attaching the expert report of Dr. Bernard R. Siskin, which was prepared for the 
Government in Balde. As detailed Dr. Skiskin's report, geocoding is based on estimating the 
proportion of persons who are of a given race or ethnicity based on the racial and ethnic area in 
which they live. (See Affidavit of Dr. Bernard R. Siskin ("Siskin Aff."), attached hereto as Exhibit 
13, at ¶ 26). BISG enhances the accuracy of geocoding for Hispanic or Latino persons by using 
information about persons' last names. (Id.). 
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appropriate measure in this case is the eighteen and older subset of the population ...."). But how 
should the relevant "community" be defined? The defendant contends that it is the jury eligible 
population of the "Manhattan Division," because that is where the offense occurred and where she 
assumes she will be tried. (Def. Mot. 9 at 6). As set forth above, she is wrong. The relevant 
comparator is the jury eligible population of the five counties from which the White Plains Master 
Wheel is drawn. 
The American Community Survey ("ACS") 2018 data indicate that the jury eligible 
population for the White Plains counties in 2018 was 12.45% Black or African-American and 
14.12% Hispanic or Latino.70 (See Siskin Aff. at ¶ 19; see also Martin Aff. at ¶ 21). 
Once the relevant comparators are defined, an additional threshold question is the statistical 
method by which to compare them. Courts have applied different approaches over time, such as 
the statistical decision theory, the comparative disparity theory, and the absolute disparity theory. 
See Rioux, 97 F.3d at 655. Although no method is perfect, see Berghuis v. Smith, 559 U.S. 314, 
329 (2010), the Second Circuit has made clear that the comparative disparity theory is disfavored 
and strongly suggested that the absolute disparity theory is generally appropriate, see Rioux, 97 
F.3d at 655-56; see also United States v. Barnes, 520 F. Supp. 2d 510, 514 (S.D.N.Y. 2007) ("[T]he 
absolute disparity approach is the primary approach used in this Circuit."). 
The "absolute disparity" approach measures the absolute numerical difference between the 
distinctive group's representation in the community population and the group's representation in 
the relevant jury pool. See Rioux, 97 F.3d at 655; United States v. Barlow, 732 F. Supp. 2d 1, 30-
31 (E.D.N.Y. 2010), gird 479 F. App'x 372, 373 (2d Cir. 2012). For example, if Blacks 
70 The American Community Survey gathers demographic information in between the decennial 
census, and is published by the United States Census Bureau. (See Siskin Aff. at ¶ 18). The latest 
available data is the 2018 five-year survey combining the 2014, 2015, 2016, 2017, and 2018 survey 
data. (Id.). 
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represented 10% of the community population but only 2% of the relevant jury pool, the "absolute 
disparity" would be 8%. 
There is no specific numerical threshold that constitutes unacceptable disparity under the 
"absolute disparity" method. "[P]erfectly proportional representation is not required, since no 
source list will be an exact statistical mirror of the community." United States v. Guzman, 337 F. 
Supp. 140, 143 (S.D.N.Y. 1972); see also Taylor, 419 U.S. at 538. The mere fact that a jury 
selection system is imperfect does not make it invalid. Swain v. Alabama, 380 U.S. 202, 209 
(1965) (overruled on other grounds). Accordingly, the Second Circuit has found that absolute 
disparities as high as nearly 5% fail to establish a prima facie case of underrepresentation. See, 
e.g., Biaggi, 909 F.2d at 677-78 (3.6% for Blacks and 4.7% for Hispanics); United States v. 
Ramnath, 131 F.3d 132, 132 (2d Cir. 1997) (3.45% for African-Americans and 4.87% for 
Hispanics); see also Barlow, 732 F. Supp. 2d at 34-35 (collecting out-of-circuit cases rejecting 
claims presenting similar and even higher disparities).71
Properly calculated, the "absolute disparity" in this case falls comfortably within the range 
deemed acceptable by the Second Circuit and other courts. As noted, the "relevant jury pool" is 
the White Plains Master Wheel, which is comprised of 11.20% Black or African-American persons 
and 12.97% Latino or Hispanic persons. (Siskin Aff. at 128). The "community population" is the 
jury eligible population for the five counties from which the White Plains Master Wheel is drawn, 
71 In United States v. Jackman, the Second Circuit held that an absolute disparity of 2.5% for Black 
or African-American persons and 3.4% for Hispanic or Latino persons was sufficient to satisfy the 
second prong of the Duren test. 46 F.3d 1240 (2d Cir. 1995). The unique facts of Jackman make 
it readily distinguishable. The jury clerk in Jaclanan relied on a qualified jury wheel that was 
mostly drawn from a master jury wheel that completely excluded potential jurors from two cities 
in the Division—cities that accounted for 62.93% of the voting-age Black population and 68.09% 
of the voting-age Hispanic population in the division. See id. at 1242-44. This resulted in a venire 
comprised of no Black or African-American persons and one Hispanic or Latino person. Id. at 
1244. See also id. at 1252 (Walker, J., dissenting) (stating that the majority's decision was "at 
odds with every decision in every circuit applying the Duren test"). 
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which was comprised of 12.45% Black or African-American persons and 14.12% Hispanic or 
Latino persons in 2018. (Id. at ¶ 19). This yields an "absolute disparity" of 1.25% for Black or 
African-American persons and 1.15% for Latino or Hispanic persons. (Id. at ¶ 28). That disparity 
does not rise to the level of satisfying the second prong of the Duren test. 
The result is the same even if the defendant's preferred relevant jury pool is used. The 
White Plains Qualified Wheel is comprised of 8.76% Black or African-American persons and 
10.48% Latino or Hispanic persons. (Id. at ¶ 17; see also Martin Aff. at ¶ 55). This results in 
absolute disparities of 3.69% and 3.64%, respectively. These figures are also comfortably within 
the range that the Second Circuit has determined does not satisfy the second prong of the Duren 
test. Moreover, as discussed below, the factors that cause the disparity between the White Plains 
Qualified Wheel and the White Plains Master Jury Wheel, as well as the voting age population, 
are not the result of systematic exclusion. 
It is only by employing an apples-and-oranges method of comparing the White Plains 
Qualified Wheel to the jury eligible populations of the "Manhattan Division" or the entire Southern 
District that the defendant is able to identify disparities that might arguably satisfy the second 
prong of Duren. Because that method has no basis in the law, the defendant's claim fails at the 
second prong. 
b. 
Any Potential Underrepresentation Is Not Due to Systematic 
Exclusion 
Even assuming the defendant had satisfied the second prong of the Duren test—which she 
has not—she most certainly has not demonstrated that any underrepresentation is "due to 
systematic exclusion of the group in the juty-selection process." Rioux, 97 F.3d at 654 (emphasis 
added). That is, she cannot establish that the exclusion is the product of "the system of jury 
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selection itself, rather than external forces." Id. at 658 (emphasis added). She therefore cannot 
satisfy the third prong of Duren. 
As then-District Judge Bianco explained, "systematic exclusion does not occur simply 
because a facially neutral disqualification criterion disproportionately impacts a particular group." 
Barlow, 732 F. Supp. 2d at 40; see also United States v. Barlow, 479 F. App'x 372, 373 (2d Cir. 
2012) (affirming Judge Bianco's "thorough and well-reasoned" opinion). Indeed, "la] selection 
process that is facially neutral is unlikely to demonstrate systematic exclusion."' United States v. 
Savage, 970 F.3d 217, 259 (3d Cir. 2020) (brackets in original) (quoting Howell v. Superintendent 
Rockview SCI, 939 F.3d 260, 269 (2d Cir. 2019)). Moreover, a defendant cannot "make out a 
prima facie case merely by pointing to a host of factors that, individually or in combination, might 
contribute to a group's underrepresentation." Berghuis, 559 U.S. at 332 (emphasis in original). 
Insofar as the underrepresentation here is measured by a comparison of the White Plains 
Qualified Wheel to the jury eligible population of the "Manhattan Division" or entire Southern 
District, the defendant's argument rests entirely on the prosecution's decision to pursue an 
indictment in White Plains rather than Manhattan. (Def. Mot. 9 at 7). That decision was entirely 
proper, as set forth above. See supra Section XI.C.1 And even if it were the case that this decision 
resulted in substantial underrepresentation, it nevertheless does not amount to "systematic 
exclusion . . . in the filly-selection process." The prosecution's decision as to where to seek an 
indictment was based entirely on the availability of grand juries during a pandemic, which has 
nothing to do with the process by which the grand jury is selected. The defendant points to no 
other source of any supposed systemic exclusion of any identified group. Accordingly, the 
defendant's claim also fails at the third prong of Duren. 
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CONCLUSION 
For the foregoing reasons, the Court should deny all twelve of the defendant's pre-trial 
motions. 
Dated: New York, New York 
February 26, 2021 
Respectfully submitted, 
AUDREY STRAUSS 
United States Attorney 
By: 
Is 
Assistant United States Attorneys 
(212) 637-2225 
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