UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V. Cr. No. 96-80272
Judge: DUGGAN
D-1 xxxxxxxxx,
D-2 xxxxxxxxxxx,
Defendants.
MOTION TO DISMISS SUPERSEDING INDICTMENT
NOW COMES the Defendant, xxxxxxx, by xxxxxxxx, and Defendant xxxxxxx, by, MIRIAM L. SIEFER, of the Federal Defender Office and, pursuant to Federal Rule of Criminal Procedure 12(b)(2), the equal protection guarantee of the Fifth Amendment and 28 U.S.C. §1862, moves this Honorable Court to enter an Order dismissing the Superseding Indictment in this case. Defendants file a supporting brief and state as follows:
1) That on April 4, 1996, the Grand Jury returned a 59 Count Indictment charging Defendants with Wire Fraud, 18 U.S.C. §1343 (Cts. 1-24), Mail Fraud, 18 U.S.C. §1341 (Cts. 25-33), Bank Fraud, 18 U.S.C. §1344 (Ct. 34), Conspiracy to Launder Money, 18 U.S.C. §371 (Ct. 35), Money Laundering, 18 U.S.C. 1 956 (Cts. 36-41), Bankruptcy Fraud, 1
18 U.S.C. §152 (42-56), Perjury, 18 U.S.C. §1623 (Ct. 57), False Statement, 18 U.S.C. §1001 (Cts. 58-59).
2) On January 7, 1997, the Grand Jury returned a 90 Count Superseding lndictment, charging Defendants with Wire Fraud, 18U.S.C.§1343(Cts. 1-47), Mail Fraud, 18U.S.C.§1341 (Cts.48-53), False Statement to Bank, 18U.S.C. 1014(Cts. 54-63), Bank Fraud, 18 U.S.C. §l 344 (Ct. 64), Conspiracy to Launder Money, 18 U.S.C. §371 (Ct. 65), Money Laundering, 18U.S.C.§1956(a)(2)(Cts.66-71), Bankruptcy Fraud, 18U.S.C.§152 (Ct. 72-86), Perjury, 18 U.S.C. §1623 (Ct. 87), False Statements, 18 U.S.C. §1001 (Cts. 88-90).
3) That the Grand Jury in the instant case was composed of members of the community chosen to serve pursuant to the Jury Selection Plan of the Eastern District of Michigan. 92-AO-035.
4) That the Jury Selection Plan implemented by the Eastern District of Michigan violates the Jury Selection and Service Act, 28 U.S.C. § 1862, and the equal protection guarantee of the Fifth Amendment of the U.S. Constitution because it excludes potential grand and petit jurors on the basis of race. United States v. Ovalle, _F.3d_, 1998 WL 68881 (6th Cir. 1998).
5) That defenses and objections based on defects in the indictment or information must be raised prior to trial. Fed. R.Crim.P. 12(b)(2).
6) That where a grand jury has been composed using means that violate the equal protection component of the Fifth Amendment, the proper remedy is dismissal of the indictment. See, Vasquez v. Hillary, 106 S.Ct. 617, 622 (1986) and Rose v. Mitchell, 99 S.Ct. 2993 (1979).
WHEREFORE, Defendant respectfully requests that this Court enter an Order dismissing the Superseding Indictment.
Respectfully submitted,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V. Cr. No. 96-80272
Judge: DUGGAN
D-1xxxxxxxxxxxxxxxx
D-2 xxxxxxxxxxxxxxxxxx
Defendants.
BRIEF IN SUPPORT OF
MOTION TO DISMISS INDICTMENT
ISSUE PRESENTED
QUESTION PRESENTED
WHETHER THE COURT SHOULD DISMISS THE SUPERSEDING INDICTMENT WHEN IT WAS ISSUED BY A GRAND JURY WHICH WAS SELECTED IN VIOLATION OF THE JURY SELECTION AND SERVICE ACT AND THE EQUAL PROTECTION CLAUSE OF THE FIFTH AMENDMENT?
1.
BACKGROUND
On April 4, 1996, the Grand Jury returned a 59 Count Indictment charging Defendants with multiple counts of fraud, money laundering and false statement offenses. On January 7, 1997, a Superseding Indictment was returned by the Grand Jury, enlarging the Indictment to 90 counts, adding conspiracy counts, and again charging Defendants with numerous counts of fraud, money laundering and false statement. Since February 3, 1992 grand juries have been selected pursuant to the Jury Selection Plan for the Eastern District of Michigan. That plan utilizes a "subtraction method" of balancing the jury wheel to ensure representation of a fair cross section of the community. The "subtraction method" involved removing non-African-American potential jurors from the jury wheel in order to obtain a wheel which adequately reflects the percentage of the African-American population in the district.
II.
ARGUMENT
DEFENDANT IS ENTITLED TO A DISMISSAL OF THE SUPERSEDING INDICTMENT WHEN THE SELECTION PROCESS FOR THE GRAND JURY VIOLATED THE JURY SELECTION AND SERVICE ACT AND THE EQUAL PROTECTION CLAUSE OF THE FIFTH AMENDMENT BY ELIMINATING POTENTIAL JURORS FROM SERVICE SOLELY ON THE BASIS OF RACE
Defendants are entitled to a dismissal of the Superseding Indictment in the instant case because the grand jury which issued it was formed in violation of the Jury Selection and Service Act (JSSA) and the equal protection clause of the Fifth Amendment of the United States Constitution. Section 1862 of the Jury Selection and Service Act provides that, "no citizen shall be excluded from service as a grand or petit juror in the district courts of the United States . . . on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C. §1862. The Supreme Court has recognized that because discrimination on the basis of race in the selection of members of a grand jury strikes at the fundamental values of our judicial system and our society as a whole, a criminal defendant's right to equal protection of the laws has been denied when he is indicted by agrandjuryfromwhichmembersofaracialgrouppurposefullyhavebeenexcluded. Rose
v. Mitchell, 443 U.S. 545, 556 (1979).
On February 23,1998, in United States v. Ovalle, _F.3d _ (6th Cir. 1998) (1998 WL 68881), the Sixth Circuit held that the implementation of the Jury Selection Plan in the Eastern District of Michigan substantially violates the JSSA and also violates the equal protection component of the Fifth Amendment. Id. at p. 14. In analyzing the selection plan under the JSSA, the Sixth Circuit held that the Eastern District of Michigan's practice of subtracting potential jurors from the master wheel on the sole basis of their racial status constitutes a "substantial violation" of the JSSA because such action is contrary to the Act's central purpose of eliminating racial discrimination in the selection of jurors. Id. at p.6.
The Sixth Circuit found the jury selection plan similarly violative under an equal protection analysis. At the outset, the Sixth Circuit noted that the implementation of the jury selection plan is clearly not race neutral since individuals are eliminated from consideration for jury service on the basis of their race. Id. at p.6. Although the Sixth Circuit acknowledged that the plan was adopted to achieve a compelling governmental interest, namely insuring that petit and grand juries represent a fair cross-section of the community, the local selection plan is not narrowly tailored to meet this end and therefore violates the equal protection clause. Id. at p. 12.
Rule 12 of the Federal Rules of Criminal Procedure governs pretrial motions. Rule 12(b)(2) provides that defenses or objections based upon defects in the indictment or information must be raised before trial by motion. Fed.R.Crim.Pl2(b)(2). Where there has been an equal protection violation in the selection of a grand jury, the appropriate remedy is dismissal of the indictment. See, Vasquez v. Hillary, 106 S.Ct. 617, 622 (1986) and Rose v. Mitchell, 99 S.Ct. 2993 (1979). Since the Superseding Indictment in the present case was issued by a grand jury formed in violation of both the JSSA and the equal protection clause of the Fifth Amendment, Defendant's Superseding Indictment must be dismissed.
CONCLUSION
For all of these reasons, the Court should grant Defendants' Motion and enter an
Order dismissing the Superseding Indictment in the instant case.
Respectfully submitted,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
V. Cr. No. 96-80272
Judge: DUGGAN
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Defendants.
AFFIDAVIT OF COUNSEL
PURSUANT TO 18 U.S.C. §l 867
NOW COMES Counsel for Defendant Wayne Carrick, MIRIAM L. SIEFER, of the Federal Defender Office, and pursuant to 28 U.S.C. §l 867(d) states as follows:
1. That the instant Superseding Indictment was issued on January 7, 1997 by a grand jury in the Eastern District of Michigan.
2. That Counsel has reviewed the Sixth Circuit's recent written opinion in United
States v. Ovalle, -F.3d (6th Cir. 1998) (1998 WL 68881) holding that the implementation of the Jury Selection Plan in the Eastern District of Michigan substantially violates the JSSA and the equal protection component of the Fifth Amendment.
3. That since the present indictment was issued by a grand jury formed under the same jury selection plan rejected by the Sixth Circuit in Ovalle, Counsel believes that a "substantial violation" of the Act has occurred and that the Superseding Indictment must, therefore, be dismissed.
I hereby swear and affirm that the above statements are true to the best of my knowledge.
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