Case 1:20-cr-00152-PAB Document 244 Filed 02/18/21 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Chief Judge Philip A. Brimmer
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`Criminal Case No. 20-cr-00152-PAB
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`UNITED STATES OF AMERICA,
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`
`Plaintiff,
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`v.
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`1. JAYSON JEFFREY PENN,
`2. MIKELL REEVE FRIES,
`3. SCOTT JAMES BRADY,
`4. ROGER BORN AUSTIN,
`5. TIMOTHY R. MULRENIN,
`6. WILLIAM VINCENT KANTOLA,
`7. JIMMIE LEE LITTLE,
`8. WILLIAM WADE LOVETTE,
`9. GARY BRIAN ROBERTS, and
`10. RICKIE PATTERSON BLAKE,
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`
`Defendants.
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`______________________________________________________________________
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`
`
` ORDER
`______________________________________________________________________
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`
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`This matter comes before the Court on Mr. Blake=s Motion for Discovery of Jury
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`Selection Procedures [Docket No. 125], wherein defendant Rickie Patterson Blake
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`seeks discovery of the Court=s jury selection plan and any related COVID-19 juror
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`excuse policies for both grand juries and petit juries. Mr. Blake states that the COVID-
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`19 pandemic has affected distinctive groups differently. Docket No. 125 at 2.1
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`The grand jury returned an indictment in this case against four defendants, not
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`1 Mr. Blake defines the phrase ACOVID-19 pandemic@ to refer to the time period
`from March 13, 2020 to the present. Docket No. 125 at 2 n.1.
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`Case 1:20-cr-00152-PAB Document 244 Filed 02/18/21 USDC Colorado Page 2 of 8
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`including Mr. Blake, on June 2, 2020. Docket No. 1. The grand jury returned a
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`superseding indictment on October 6, 2020, adding six defendants, including Mr. Blake.
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`Docket No. 101. The grand jury that returned the indictment and the superseding
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`indictment was selected in September 2019.
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`A. Legal Standard
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`The Fifth and Sixth Amendments to the Constitution guarantee a criminal
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`defendant a trial by a jury selected from a fair cross-section of the community. See
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`Taylor v. Louisiana, 419 U.S. 522, 530 (1975). This guarantee has been extended to
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`grand juries by the Jury Selection and Service Act (AJSSA@), 28 U.S.C. ' 1867. Title 28
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`U.S.C. ' 1867(f) provides, in pertinent part:
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`The contents of records or papers used by the jury commission or clerk in
`connection with the jury selection process shall not be disclosed, except
`. . . as may be necessary in the preparation or presentation of a motion
`under subsection (a), (b), or (c) of this section. . . . The parties in a case
`shall be allowed to inspect, reproduce, and copy such records or papers at
`all reasonable times during the preparation and pendency of such a
`motion.
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`In Test v. United States, 420 U.S. 28, 30 (1975), the Supreme Court held that A[t]his
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`provision makes clear that a litigant has essentially an unqualified right to inspect jury
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`lists. It grants access in order to aid parties in the >preparation= of motions challenging
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`jury-selection procedures. Indeed, without inspection, a party almost invariably would
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`be unable to determine whether he has a potentially meritorious challenge.@ However,
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`' 1867(f), by its own terms, covers only records (1) Aused by the jury commission or
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`clerk in connection with the jury selection process@ and (2) Anecessary in the preparation
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`or presentation of a motion@ challenging compliance with the JSSA. 28 U.S.C.
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`' 1867(f). See United States v. Cerna, 2009 WL 2998930, at *3 (N.D. Cal. Sept. 16,
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`2
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`Case 1:20-cr-00152-PAB Document 244 Filed 02/18/21 USDC Colorado Page 3 of 8
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`2009) (“Disclosure under the Jury Selection and Services Act is only permitted in
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`preparation of a claim under the Act”).
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`B. Discovery Requests
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`Mr. Blake requests the following documents:
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`(1)
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`(2)
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`(3)
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`(4)
`(5)
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`(6)
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`(7)
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`(8)
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`(9)
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`The Jury Plan for the District of Colorado currently in effect, if different
`from that available on the Court=s website, and a description of any
`changes that have been made in the selection of prospective jurors due to
`the COVID-19 pandemic, to the extent not otherwise stated in the Court=s
`Jury Trial Protocols;
`Documents sufficient to show: (a) the race, religion, sex, gender, ethnicity,
`year of birth, zip code, income, and occupation of all grand juries
`empaneled in the District during the COVID-19 pandemic; (b) the race,
`religion, sex, gender, ethnicity, year of birth, zip code, income, and
`occupation of all grand jury members excused or deferred from
`participating in a grand jury after it was empaneled in the District; and (c)
`the race, religion, sex, gender, ethnicity, year of birth, zip code, income,
`and occupation of any grand jury members added after a grand jury was
`originally empaneled in the District;
`The Juror Qualification Questionnaire distributed to potential grand or petit
`jurors, as contemplated in Section 14 of the Court=s Plan, and any
`additional forms being distributed during the COVID-19 pandemic;
`The District=s two most recently submitted AO-12 forms;
`Documents sufficient to show: race, religion, sex, gender, ethnicity, year of
`birth, zip code, income, and occupation for those individuals on the Master
`Jury Wheel in this District;
`Documents sufficient to show: race, religion, sex, gender, ethnicity, year of
`birth, zip code, income, and occupation for those individuals eligible for
`jury service in this District;
`Documents sufficient to show: race, religion, sex, gender, ethnicity, year of
`birth, zip code, income, and occupation for those individuals (a) to whom
`summonses and jury questionnaires were sent, as contemplated by
`Sections 11, 12, and 15 of the Court=s Plan, and (b) those deemed
`qualified for jury service, as contemplated by Section 16 of the Court=s
`Plan;
`Documents identifying all excuses received from potential jurors and,
`separately, all excuses accepted from potential jurors for the District, as
`contemplated by Sections 17 and 18 of the Court=s Plan, during the
`COVID-19 pandemic;
`Documents reflecting any policies or practices established by the Court or
`Clerk=s Office for excusing grand or petit jurors during the COVID-19
`pandemic;
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`(10) Documents sufficient to show: race, religion, sex, gender, ethnicity, year of
`birth, zip code, income, and occupation for all prospective jurors for the
`District who have been excused from or granted a deferral of their jury
`service based on the COVID-19 pandemic; and
`(11) Once criminal trials in this District resume and a trial schedule in this
`matter is set, any additional documents or data responsive to Request
`Nos. 2B3 and 5B10 for the period between March 13, 2020 and 30 days
`before voir dire in this matter.
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`C. Analysis
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`The Court has four jury divisions. The division for trials conducted in Denver is
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`Jury Division No. 1. However, grand jurors sitting in Denver are selected from Division
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`Nos. 1 and 4. Because the grand jury that indicted Mr. Blake was selected from Jury
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`Division Nos. 1 and 4 and because the petit jury in any trial of Mr. Blake would be
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`selected from Jury Division No. 1, only information regarding those jury divisions will be
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`provided, depending on whether the request is for grand jury or petit jury information,
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`since information from other jury divisions could not assist Mr. Blake in preparing a
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`challenge regarding his indictment or potential petit jury pool.
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`Mr. Blake does not seek personal identifying information or information Ain
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`individualized format.@ Docket No. 189 at 2. Thus, the Clerk=s Office, in responding to
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`any request that the Court grants, will not provide names, birth dates, addresses,
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`telephone numbers, email addresses, names of employers, social security numbers, or
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`any other information that the Clerk=s Office believes, under the circumstances, may
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`enable a reviewing party to identify a specific person.
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`Request No. 1 - Granted in part and denied in part. The Court=s website
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`contains a copy of the Court=s Jury Plan for the District of Colorado and the Jury Trial
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`Protocols in effect during the pandemic. The Court will not create a description of
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`4
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`changes that have been made to the selection of prospective jurors due to the
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`pandemic since such document, if not described in the Jury Trial Protocols, would have
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`to be created to respond to the request. See United States v. Corbett, 2020 WL
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`5803243, at *4 (E.D.N.Y. August 21, 2020) (ASection 1867(f) entitles defendants >only to
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`records and papers already in existence= but >nothing . . . entitles defendants to require
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`the jury administrator to analyze data on their behalf@ (quoting United States v. Miller,
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`116 F.3d 641, 658 (2d Cir. 1997))).
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`Request No. 2 – Denied. The Court finds that subparagraph (a) is irrelevant.
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`That subparagraph seeks demographic information about all grand juries empaneled
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`during the pandemic. However, such information could not properly be the basis of a
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`challenge by Mr. Blake since the grand jury that indicted him was selected before the
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`pandemic. See United States v. Braxton, 2020 WL 6083649, at *4 (E.D.N.Y. Oct. 15,
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`2020) (Abecause the grand jury here was empaneled months before the start of the
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`COVID-19 pandemic, any changes made to address the effect of the pandemic on the
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`current grand jury selection process is irrelevant to any potential motion by defendant.@);
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`United States v. Eldarir, 2020 WL 6545894, at *4 (E.D.N.Y. Nov. 6, 2020) (same). Mr.
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`Blake=s reply brief confirms that subparagraphs (b) and (c) are also directed at grand
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`jurors serving during the pandemic. Docket No. 189 at 3. To the extent that these
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`requests seek information about jurors serving on grand juries selected during the
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`pandemic, they will be denied for the same reason as the request in subparagraph (a).
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`To the extent that these requests seek information about grand jurors from grand juries
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`selected pre-pandemic, but serving during the pandemic, including his grand jury, the
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`5
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`Court finds that this juror replacement information is irrelevant to any challenge that Mr.
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`Blake could properly make. As noted in Braxton, A[i]t is not the actual selection of the
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`grand jury which would constitute the violation but whether the jury was selected at
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`random from a fair cross section of the community.@ 2020 WL 6083649, at *4 (citation
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`omitted). The grand jury that indicted Mr. Blake was already selected by the time of the
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`pandemic and by the time of the Court=s adoption of pandemic protocols.
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`Request No. 3 - This request is not date limited, but the Court will provide Mr.
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`Blake with the forms used for grand juries chosen from the current Master Wheel up to
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`and including the selection of his grand jury, but not thereafter. See, e.g., United
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`States v. Ciancia, 2015 WL 13798661, at *3-4 (C.D. Cal. Nov. 9, 2015) (limiting request
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`to juries that affected the defendant); United States v. O’Reilly, 2008 WL 302310, at *2
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`(E.D. Mich. Feb. 4, 2008) (limiting request to current master or qualified juror wheel).
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`For the reasons noted in the ruling on Request No. 2, pandemic-related forms cannot
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`help Mr. Blake prepare a motion challenging his grand jury, which had already been
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`selected. The request for petit jury forms is granted for this Master Jury Wheel.
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`Request No. 4 - This request is granted.
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`Request No. 5 - This request is granted, but personal identifiers will be redacted.
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`Request No. 6 - It is unclear what this request means by Aeligible.@ This District
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`does not screen the names in the Master Wheel the way some districts do. See, e.g.,
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`Braxton, 2020 WL 6083649, at *4. Assuming that type of process is what Mr. Blake
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`refers to, this request duplicates Request No. 5.
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`Request No. 7 - The Questionnaires do not ask about jurors= religion and do not
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`distinguish between sex and gender. This request is granted for the potential jurors in
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`the Master Wheel used to select the grand jury that indicted Mr. Blake.
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`Request No. 8 - The Court denies this request regarding grand jury information
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`for the reasons noted in the Court=s ruling on Request No. 2. The Court will also deny
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`this request for petit juror information because, by the time any trial of Mr. Blake
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`(currently scheduled in August) takes place, a new Master Wheel will be used.
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`Therefore, pandemic-related excuse information from the previous Master Wheel will
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`not be relevant.
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`Request No. 9 - The Court denies this request for petit juror information, for the
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`reason noted in the Court’s ruling on Request No. 8, and denies it for grand juror
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`information, for the reasons noted in the Court=s ruling on Request No. 2.
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`Request No. 10 - The Court denies this request for petit juror information
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`because, for any trial of Mr. Blake, a different Master Wheel will be used. The Court
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`also denies it for grand juror information for the reasons noted in the Court=s ruling on
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`Request No. 2.
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`Request No. 11 – As noted above, a new Master Wheel will be used for the trial
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`in this case. Therefore, this request is denied without prejudice as premature.
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`The information provided pursuant to this order shall only be used in connection
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`with the preparation and possible filing of a motion in this case challenging the grand
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`jury and petit jury selection procedures and for no other purpose. This information
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`must be returned to the Court after the selection of the petit jury in this case or after the
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`Court rules on any motion challenging the jury selection procedures. The materials
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`supplied pursuant to Mr. Blake=s requests may not be disclosed, shown, or transmitted
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`in any way to third parties, but may be reviewed by Mr. Blake, his attorneys, experts,
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`and staff assisting his attorneys in the preparation of a motion challenging jury selection
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`procedures. Counsel, their staff, experts, consultants, defendants, and the government
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`are reminded that A[a]ny person who discloses the contents of any record or paper in
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`violation of this subsection may be fined not more than $1,000 or imprisoned not more
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`than one year, or both.@ Corbett, 2020 WL 5803243, at *8.
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`BY THE COURT:
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`PHILIP A. BRIMMER
`Chief United States District Judge
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`DATED February 18, 2021.
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