UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Case No. 09-20025-04

v

Hon. Avern Cohn

SAMUEL L. RIDDLE, JR.,

Defendant. 

________________________________

MOTION TO DISMISS, OR IN THE ALTERNATIVE TO STAY 

PROCEEDINGS, AND FOR EVIDENTIARY HEARING

Defendant Samuel L. Riddle, Jr., by his attorneys, John Minock and Edward Wishnow,

requests that his motion be granted for the following reasons:

1. Defendant was indicted on July 15, 2009, in a seven count indictment.

2. On January 4, 2010, a jury venire of one hundred was summoned to court.

3. The population of African-Americans in the nine counties from which the venire is

drawn is about 21.5%.

4. In this case, the jury venire included only nine African-Americans, an under

representation of over 130%.

5. This under representation of African-Americans on jury venires in this District has

been a chronic problem for years.

6. The under representation of African-Americans in the jury venire is systematic and

is in violation of the Sixth Amendment right to be tried by a jury which represents a fair cross

section of the community. Taylor v Louisana, 419 US 522 (1975); Duren v Missouri, 439 US 357,

364 (1979); US Const, Am. VI; Smith v Berghuis, 543 F3d 326 (6th Cir. 2008), cert. granted, 130

S Ct 48 (September 30, 2009). 

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Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 1 of 10
7. The under representation of African-Americans in the jury venire is also a violation

of the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. (JSSA). Under 28 USC 1863(B)(3),

the nine counties from which the jurors are drawn must be “substantially proportionally represented

in the jury master wheel.” Given the results in this case, and virtually every other case tried in this

District, African-Americans are substantially under represented in jury venires.

8. The constitutional issue, but not the statutory issue, was recently addressed by Judge

Victoria A. Roberts of this District in an opinion issued December 15, 2009, in a 2005 case, United

States v Alonzo Bates, et al (Docket No. 05-81027). That case involved a jury venire assembled in

2005 pursuant to a different Administrative Order than the one pursuant to which this venire was

assembled, and the questionnaires and data examined in Bates are different than those in this case. 

Consequently, a fresh analysis will have to be conducted in order to determine whether there are

constitutional or statutory violations present here.

9. To conduct that analysis, defense counsel will require the services of qualified

investigators to review the questionnaires and an expert statistician to interpret the results. 

10. To review the results of that analysis, an evidentiary hearing is clearly necessary. 

The trial of this case must be adjourned. The issue presented is one of great constitutional

significance to the integrity of the trial process in this District and is worthy of further attention.

11. Pursuant to L.R. 7.1, undersigned counsel have sought the concurrence of

government counsel in the within motion, were not able to reach counsel for the government.

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WHEREFORE, Defendant requests that the Court (1) dismiss the indictment, or (2) stay

the proceedings while the District Court corrects the problem, or (3) adjourn the case to allow

investigation and analysis of the current wheel and then conduct an evidentiary hearing.

Dated: January 9, 2010 s/John Minock (P24626)

Attorney for Defendant

339 E. Liberty, Suite 200

Ann Arbor, Michigan 48104

734-668-2200; fax 734-668-0416

jminock@cramerminock.com

s/Edward C. Wishnow (P22472

Attorney for Defendant

240 Daines St. 

Birmingham, MI 48009

248-258-1991

edwishnow@aol.com

3

Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 3 of 10
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Case No. 09-20025-04

v

Hon. Avern Cohn

SAMUEL L. RIDDLE, JR.,

Defendant. 

________________________________

BRIEF IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE

TO STAY PROCEEDINGS, AND FOR EVIDENTIARY HEARING

The population of African-Americans in the nine counties from which the venire is drawn

is about 21.5%. On January 4, 2010, a jury venire of one hundred was summoned to court for this

case. The jury venire included only nine African-Americans, an under representation of over 130%. 

This under representation of African-Americans on juries in this District has been a chronic problem

for years. As Judge Victoria A. Roberts said in United States v Alonzo Bates, et al (Docket No. 05-

81027), it is impossible to ignore that:

Wayne County residents and African-Americans are consistently and pervasively

underrepresented in Detroit-Division juries, from one year, and one jury wheel, to

the next. 

The evidence of these shortcomings is clearer and more detailed than ever before. 

It demonstrates an ongoing and persistent trending toward disparity, dating back to

the inception of this Juror Selection Plan. United States v Bates, supra, Opinion,

Dec. 15, 2009, document number 142, p. 35 

* * *

 [R]egardless of what causes minorities to be underrepresented, it is a problem which

has the potential to seriously undermine the public’s perception of, and confidence

in, the integrity of the jury system. 

Because it affords ordinary citizens the opportunity to participate in the

administration of justice, the jury has long been recognized as a pillar of American

society. See 1 Alexis de Tocqueville, Democracy in America 334 (Schocken 1st ed.

1961) (“The institution of the jury raises the people itself, or at least a class of

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Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 4 of 10
citizens, to the bench of judicial authority [and] invests the people, or that class of

citizens, with the direction of society.”) (quoted in Powers v. Ohio, 499 U.S. 400,

407 (1991)) (alteration in Powers). The jury is more than just a component of the

judicial apparatus: it represents the impartial administration of justice, and

safeguards against the abuse of judicial power. The perception of systematic

exclusion, even if unfounded, cannot be ignored, because it weakens the legitimacy

of our system of justice. Id. at 41.

I. THE SYSTEMATIC UNDER REPRESENTATION OF AFRICANAMERICANS IN THE DISTRICT’S JURY SYSTEM VIOLATES THE

SIXTH AMENDMENT RIGHT TO BE TRIED BY A JURY WHICH

REPRESENTS A FAIR CROSS SECTION OF THE COMMUNITY.

Defendant maintains the under representation of African-Americans in the jury venire is

systematic and is in violation of the Sixth Amendment right to be tried by a jury which represents

a fair cross section of the community. Taylor v Louisana, 419 US 522 (1975); Duren v Missouri,

439 US 357, 364 (1979); US Const, Am. VI; Smith v Berghuis, 543 F3d 326 (6th Cir. 2008), cert.

granted, 130 S Ct 48 (September 30, 2009).1

While the constitutional issue, but not the statutory issue, was recently addressed in an

opinion issued in Bates, that case involved a jury venire assembled pursuant to an earlier different

Administrative Order than the one pursuant to which this venire was assembled, and the

questionnaires and data examined in Bates are different than those in this case. Consequently, a

fresh analysis will have to be conducted in order to determine whether there are constitutional or

statutory violations present here.

To conduct that analysis, defense counsel will require the services of qualified investigators

1

 That this is a continuing issue in this District is ironic, because the District has tried,

unsuccessfully, to deal with the issue. This District attempted to address the problem with a

creative plan in 1992 to enforce proportional representation in the jury wheel. The Sixth Circuit

found that part of the plan to be unconstitutional in United States v Ovalle, 136 F3d 1092 (6th

Cir. 1998), so the District removed the remedial provisions of the plan but kept the rest intact.

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to review the questionnaires and an expert statistician to interpret the results. 18 USC 3006A. To

review the results of that analysis, an evidentiary hearing will clearly be necessary. The trial of this

case must be adjourned. The issue presented is one of great constitutional significance to the

integrity of the trial process in this District and is worthy of further attention.

The fair cross-section requirement of the Sixth Amendment is integral to the core principles

of representative democracy and the right to a fair trial. By ensuring the community’s ability to

participate in the civic process and serve as a check on the powers of government, the fair crosssection requirement is critical to the integrity of the justice system. To fulfill these fundamental

Sixth Amendment principles, the fair cross section requirement is critical to the integrity of the

justice system, and all eligible jurors of the community must be included in jury service. When

distinctive groups are underrepresented or systematically excluded, these principles are violated.

A defendant in a criminal trial has a constitutional right to a jury drawn from a venire

representative of a fair cross section of the community in which the case is tried. Taylor v Louisana,

419 US 522 (1975); Duren v Missouri, 439 US 357, 364 (1979); US Const, Am. VI; Smith v

Berghuis, 543 F3d 326 (6th Cir. 2008), cert. granted, 130 S Ct 48 (September 30, 2009). Duren

established a three factor test:

In order to establish a prima facie violation of the fair-cross-section requirement, the

defendant must show (1) that the group alleged to be excluded is a "distinctive"

group in the community; (2) 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 (3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.

If a prima facie violation is shown, the government is required to justify the practice, to show

that a significant government interest is advanced by the process even though it results in the

disproportionate exclusion of a single group.

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There can be no question that the first Duren prong is satisfied: African-Americans constitute

a cognizable group for this issue. Jefferson v Morgan, 962 F 2d 1185, 1189 (6th Cir. 1992). Nor can

there be any question that there is substantial under representation here. The law does not set a

threshold disparity beyond which discrimination can be presumed, though some courts set a 10 or

20 % rule, which is at best “a contrivance. . . based upon faulty precedent.” United States v Green,

389 F Supp 2d 29, 55, fn. 52 (D MA, 2005). The absolute difference here is approximately 12.5%,

or, in other words, 130% fewer African-Americans than there should be. Defendant maintains,

particularly since the problem has been chronic in this District, that there should be a presumption

sufficient to establish a prima facie violation. “Where African-American representation in the pool

is effectively halved, and where there is evidence of systematic defects, the court should look more

closely and the government should bear the burden of justification.” Green, supra, at 55. There

is certainly a sufficient disparity to raise an inference of discrimination. Jefferson, supra, at 1187;

Bates, supra, at p. 21. 

The only Sixth Amendment question is whether the under representation is systematic. 

Defendant maintains that issue can only be determined here by an examination of the questionnaires

and data by investigators and a statistician, followed by an evidentiary hearing, as the decision in

Bates demonstrated.

II. THE JUROR SELECTION SYSTEM IS ALSO IN VIOLATION

OF THE JURY SELECTION AND SERVICE ACT.

The under representation of African-Americans in the jury venire is also a violation of the

Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. (JSSA). Under 28 USC 1863(B)(3), the

nine counties from which the jurors are drawn must be “substantially proportionally represented in

the jury master wheel.” Given the results in this case, and virtually every other case tried in this

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Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 7 of 10
District, African-Americans are substantially under represented in jury venires.

The JSSA defines two obligations, a requirement of proportionality, and a requirement of

substantial compliance with the provisions of the Act.

The Act requires that every district's jury plan “ensures that each county, parish, or similar

political subdivision within the district or division is substantially proportionally represented in the

master jury wheel for that judicial district [or] division.” 28 U.S.C. § 1863(b)(3). The Act further

specifies that proportional representation can be measured by using “either the number of actual

voters at the last general election in each county, parish, or similar political subdivision, or the

number of registered voters if registration of voters is uniformly required throughout the district or

division.” Id. Whether there is proportionality between the nine counties is an issue which will have

to await further factual development.

In addition, under 28 U.S.C. § 1867(d), if the court determines that there has been a

“substantial failure” to comply with the provisions of the Act, “the court shall stay the proceedings

pending the selection of a petit jury in conformity with this title.” The “substantial failure” to

comply provision is broadly drafted, referring to all aspects of the JSSA. Defendant maintains there

is a “substantial violation” of the Act, even if not a constitutional violation, based on the failure of

federal officials to supplement the available jury list despite its demonstrable deficiencies. The JSSA

requires that the district's jury plan “prescribe some other source or sources of names” in addition

to the usual source list “where necessary to foster the policy and protect the rights secured by” the

fair cross-section guarantee. 28 U.S.C. § 1863(b)(2); 28 U.S.C. § 1861. 

A substantial failure under the Act does not require Defendant to show prejudice. On the

other hand it must be more than a mere technical violation. Congress left it to the courts to

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Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 8 of 10
determine whether a “substantial” violation exists. Green, supra, at pp. 68-69. Whether the

violation is substantial is measured against the underlying principles of the Act. Id. at 73. 

Defendant maintains the chronic under representation of African-Americans in this District is a

factor which leads to the conclusion that there is a substantial violation of the Act in this District ,

such that the Court should consider additional utilizing additional remedies provided in the Act.

For all the above reasons, Defendant requests that the Court (1) dismiss the indictment, or

(2) stay the proceedings while the District Court corrects the problem, and/or (3) adjourn the case

to allow investigation and analysis of the current jury wheel created under the present

Administrative Order.

Dated: January 9, 2010

s/John Minock (P24626)

Attorney for Defendant

339 E. Liberty, Suite 200

Ann Arbor, Michigan 48104

734-668-2200; fax 734-668-0416

jminock@cramerminock.com

s/Edward C. Wishnow (P22472

Attorney for Defendant

240 Daines St. 

Birmingham, MI 48009

248-258-1991

edwishnow@aol.com

6

Case 2:09-cr-20025-AC-MAR Document 109 Filed 01/09/2010 Page 9 of 10
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Case No. 09-20025-04

v

Hon. Avern Cohn

SAMUEL L. RIDDLE, JR.,

Defendant. 

________________________________

CERTIFICATE OF SERVICE

I hereby certify that on January 9, 2010, I electronically filed the foregoing document

with the Clerk of the Court using the ECF system which will send notification of such filing to

the attorneys of record.

s/John Minock (P24626)

Attorney for Defendant

339 E. Liberty, Suite 200

Ann Arbor, Michigan 48104

734-668-2200; fax 734-668-0416

jminock@cramerminock.com

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