DOJ-OGR-00002835.jpg

Case 1:17-cr-00548-PAC Document 859 Filed 08/24/21 Page 14 of 20

*8 (“The absolute disparity method, on the other hand, appears to be the preferred method for analyzing jury underrepresentation under the Sixth Amendment in the Second Circuit.”). The Court will therefore analyze the underrepresentation inquiry using the absolute disparity method.

The absolute disparity method measures the difference between the groups’ representation in the relevant community and their representation in the jury venire. See Rioux, 97 F.3d at 655–56. For example, if African Americans compose 10% of the community but only 5% of the jury venire, the absolute disparity is 5%. See id. Under Second Circuit precedents, absolute disparities nearly as high as 5% have not been found to satisfy the underrepresentation element under Duren. See United States v. Biaggi, 909 F.2d 662, 677–78 (2d Cir. 1990) (holding absolute disparities of 3.6% and 4.7% were insufficient to satisfy Duren’s second element); see also Rioux, 97 F.3d at 658 (1.58% and 2.14% were insufficient); Allen, 2021 WL 431458, *8 (3.69% and 3.64% were insufficient); Barnes, 520 F. Supp. 2d at 515 (2.8% and 2.3% were insufficient).

The Court holds that the absolute disparities here fall comfortably within the outer limits provided by these past decisions. The parties do not dispute that African Americans make up 11.20% and Hispanic Americans make up 12.97% of the White Plains master wheel. (Gov’t Opp. Br. at 20.) In the relevant community, African Americans make up 12.45% and Hispanic Americans 14.12% of the jury eligible population. (Schulte Reply at 6–7; Gov’t Opp. Br. at 18.) Accordingly, the absolute disparities are 1.25% for African Americans (12.45% - 11.20%) and 1.15% for Hispanic Americans (14.12% - 12.97%). Because those figures fall comfortably within the tolerated disparities in past precedents, the Court concludes that Schulte has not met

14

DOJ-OGR-00002835