UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Cause No. 2:15-cr-43

)

MOHAMED FADIGA, )

)

Defendant. )

OPINION AND ORDER

Mohamed Fadiga has been indicted on one count of possessing counterfeit or

unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3), after a police officer

stopped a vehicle he was riding in and found a number of re-encoded gift cards in

Fadiga’s wallet and in the vehicle. (DE 1; DE 12.) Fadiga is a native of Guinea, and,

during jury selection, he objected to the 48-person jury venire on grounds that it

appeared to include no African-Americans and therefore was not a fair-cross section of

the community. After exhausting his peremptory challenges, Fadiga also moved for a

mistrial on the same grounds. I overruled the objection and denied the motion in open

court, and this opinion sets out my reasons in more detail.

Under the Sixth Amendment of the U.S. Constitution, criminal defendants have a

“right to be tried by an impartial jury drawn from sources reflecting a fair cross section

of the community.” Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana,

419 U.S. 522 (1975)). That means that the group of people from which a jury venire is

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selected must be a fair cross-section of the community. United States v. Barry, 71 F.3d

1269, 1273 (7th Cir. 1995) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)). It does not

mean that a criminal defendant is entitled to a jury venire or a jury that “mirror[s] the

general population.” United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001) (“[T]he

makeup of any given venire is not significant, provided all rules for selection have been

observed.”) (internal quotation marks and citation omitted); ; United States v. Ashley, 54

F.3d 311, 313 (7th Cir.1995) (“[T]he Constitution does not require this to ensure

representative juries, but rather impartial juries.”) (citation omitted).

To show a prima facie violation of the fair cross-section requirement, a defendant

must show “that the group allegedly excluded is a distinctive part of the community;

that the 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 that

this underrepresentation is due to systematic exclusion of the group in the jury selection

process.” Id. (citing Duren v. Missouri, 439 U.S. 357 (1979)). If a defendant makes out a

prima facie case, then the government must then show that drawing the jury venire

from a fair cross-section “is incompatible with a significant state interest.” Duren, 439

U.S. at 368.

Here, Fadiga has failed to make out a prima facie case that his constitutional

right to have a jury drawn from a fair cross-section of the community was violated.

There is no question that African-Americans are a distinctive part of the community,

but Fadiga has not satisfied the other two elements. Although the jury venire did not

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appear to include any African-American jurors, Fadiga did not offer evidence showing

a statistical discrepancy between the percentage of African-Americans in the jury venire

and in the two counties from which potential jurors for Hammond are drawn. Ashley, 54

F.3d at 314 (rejecting a challenge to a venire that contained no African-Americans as a

possible “statistical coincidence” and because “a discrepancy of less than ten percent

alone is not enough to demonstrate unfair or unreasonable representation of blacks on

the venire”) (citation omitted). He also did not show that any under-representation is

due to systematic exclusion of African-Americans in the jury selection process. 

Finally, and as I noted in court, the jury venire here was selected pursuant to the

Northern District of Indiana’s Jury Selection Plan for Grand and Petit Jurors, which was

approved by the Seventh Circuit Court of Appeals on December 4, 2014 (available at

www.innd.uscourts.gov/sites/innd/files/JurySelectionPlan.pdf). The plan provides

for the random selection of potential jurors for cases in Hammond from general election

voter registration lists in Porter County and Lake County. Before adopting the plan, the

judges in this district found that general election voter registration lists “represent a fair

cross section of the community in this District.” (Id. at 4.) In addition, the Seventh

Circuit has upheld “the use of voter registration lists as the source of names for jury

venires in this Circuit.” Ashley, 54 F.3d at 314 (collecting cases). Finally, the Jury

Selection Plan itself expressly prohibits the exclusion of citizens on the basis of race. (Id.

at 4.) 

For all of these reasons, Fadiga’s objection to the jury venire is OVERRULED,

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and his motion for a mistrial is DENIED.

SO ORDERED.

ENTERED: June 1, 2016.

s/ Philip P. Simon 

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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