USA v. MULLER et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
v.
ANDRE MULLER and
ROBERT HOLLAND,
Defendants.
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Docket No. 1:19-cr-00109-NT
ORDER ON DEFENDANT ANDRE MULLER’S MOTION TO DISMISS THE
INDICTMENT OR FOR A CHANGE OF VENUE
Before me is a motion to dismiss the indictment or change the venue of the
trial, which was filed by Defendant Andre Muller and joined in by Defendant Robert
Holland (ECF No. 237). For the reasons addressed below, and as stated at the final
pretrial conference (ECF No. 248), the motion is DENIED.
PROCEDURAL BACKGROUND
Defendants Muller and Holland have each been charged with conspiracy to
interfere with commerce by robbery, a violation of the Hobbs Act, 18 U.S.C. § 1951(a).
Indictment (ECF No. 3). A trial was scheduled for jury selection on April 5, 2022, in
Bangor, Maine (ECF No. 155). On March 30, 2022, the Court provided the parties
with the names and supplemental questionnaires of the jurors who were summoned
to appear for jury selection (ECF No. 176). On April 2, 2022, Defendants Muller and
Holland filed motions for continuance of trial so that they might challenge the jury
selection process. Def. Andre Muller’s Mot. for a Continuance of the Trial so that He
May Challenge the Jury Selection Process as in Violation of his Sixth Amendment
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Rights, his Right to Due Process, his Right to Equal Protection and in Violation of the
Jury Selection and Service Act of 1968 (“Mot. for Continuance”) (ECF No. 185);
Def. Holland’s Mot. to Join Def. Muller’s Mot. to Continue Filed at ECF # 185 (ECF
No. 186).1 The Defendants asserted that the juror information provided by the Court
indicated that the jury selection process violated their constitutional and statutory
rights. Mot. for Continuance 1. As support, the Defendants claimed that “the defense
learned . . . that not a single member of the jury venire is Black.” Mot. for Continuance
1. Notably, the juror information provided to the parties prior to trial did not identify
the juror’s race or ethnicity, and, at a later telephone conference, counsel for the
Defendants admitted that their claim was merely an “educated assessment.” Min.
Entry for Proceedings Held Before Judge Nancy Torresen (ECF No. 196).
The Government asserted no opposition (ECF No. 187), and I granted the
Defendants’ motion to continue the trial and rescheduled the trial for May 3, 2022
(ECF Nos. 189 & 193). The Defendants sought discovery of the petit jury data on April
7, 2022. Mot. for Disc. of Petit Jury Data (ECF No. 195). Following a conference of
counsel on April 25, 2022, I ordered the Clerk of the Court to provide most of the
requested discovery and set a deadline of May 13, 2022, for any motions pertaining
to the jury selection process and any request for evidentiary hearing (ECF Nos. 196
1 	Throughout the briefing on the jury challenge, Defendant Holland has joined in and adopted
all motions made by Defendant Muller, and Defendant Muller has joined in at least one motion for a
continuance filed by Defendant Holland.
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& 197).2 Because the Master Wheel currently in use was nearing its expiration date
and would be last used in June of 2022, and because the Defendants intended to seek
a continuance that would remove them from the June trial list, the Clerk’s Office
provided the jury data for the new master wheel that was in the process of being
constructed. 2020 Master Wheel Jury Data for Bangor Division (ECF. No. 198).
On April 27, 2022, Defendants requested and received a continuance of trial
until August 2, 2022 (ECF Nos. 199 & 200). Thereafter, the parties were provided
with additional requested information and documents pertaining to the jury selection
process, and several informational telephone conferences with the Clerk of Court and
the District’s Jury Administrator were held (ECF Nos. 203, 204, 206, 216, & 223). On
June 24, 2022, an evidentiary hearing was held wherein the Defendants presented
exhibits and obtained the testimony of the Jury Administrator (ECF Nos. 227, 228,
& 229). After the evidentiary hearing, the Defendants sought and received additional
discovery pertaining to historical jury selection data (ECF Nos. 230, 232, & 233).
On July 8, 2022, the Defendants filed the instant motion to dismiss the
indictment or to change venue of the trial to the Southern District of New York. Def.
Andre Muller’s Mot. to Dismiss the Indictment or Alternatively, for a Change of
Venue of the Trial to the Southern District of New York as his Challenge to the Jury
Selection Revealed a Violation of his Sixth Amendment Rights (“Jury Challenge
Mot.”) 1 (ECF No. 237). The Defendants assert that the jury selection process violates
2 	Criminal defendants mounting jury selection challenges have an “essentially . . . unqualified
right” to access pertinent jury selection records. United States v. Royal, 100 F.3d 1019, 1025 (1st Cir.
1996) (quoting Test v. United States, 420 U.S. 28, 30 (1975)).
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their rights under the Sixth Amendment, the Jury Selection and Service Act of 1968
(the “JSSA”), 28 U.S.C. §§ 1861 et. seq., and the equal protection component of the
Fifth Amendment’s Due Process Clause. Jury Challenge Mot. 1, 5–6.
DISCUSSION
I. 	The Jury Selection Process in the District of Maine
The United States District Court for the District of Maine is presently
operating under its Plan for the Random Selection of Grand and Petit Jurors for
Service in the District of Maine, which went into effect on July 12, 2021. United States
District Court for the District of Maine, Plan for the Random Selection of Grand and
Petit Jurors for Service in the District of Maine as Amended June 17, 2021 (“Jury
Plan”), available at https://www.med.uscourts.gov/sites/med/files/District of Maine
Jury Plan.pdf.3 Pursuant to the Jury Plan, the Clerk of the Court maintains one
master jury wheel for the District of Maine and two qualified jury wheels, one in
Portland and one in Bangor. Jury Plan at 2. Unless otherwise directed, the Clerk
empties and refills the master jury wheel once every two years. Jury Plan at 2.
In order to build the jury wheels, the Clerk uses Blue Grass, an outside vendor,
that gathers names from Maine’s Central Voter Registration System and the lists of
active licensed drivers and state identification card holders maintained by the Maine
Bureau of Motor Vehicles (“BMV”). Evidentiary Hr’g Tr. at 8–10 (ECF No. 231); Jury
3 	The District’s Jury Plan was provided to the parties prior to the June 24, 2022, evidentiary
hearing. See Ct. Ex. List (ECF No. 228).
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Plan at 2.4 The BMV excludes individuals who are deceased, who no longer reside in
Maine, whose cards are expired, or who are under 18. Jury Plan at 2. Blue Grass then
merges these source lists and removes duplicate names (that is, names found on more
than one list), and provides the District with the master jury wheel. Evidentiary Hr’g
Tr. at 8–9; Jury Plan at 2.
To build the qualified jury wheels, the Clerk uses the Jury Management
System (“JMS”), an electronic data processing system, to randomly draw names from
the master jury wheel to meet the needs of the Court for assignment to grand and
petit jury panels in Bangor and Portland. Jury Plan at 4. JMS is programmed to
ensure that every county in the state is proportionally represented. Jury Plan at 3.
For 	the 	Bangor 	qualified 	wheel, 	names 	are 	drawn 	from 	Aroostook, 	Franklin,
Hancock, Kennebec, Penobscot, Piscataquis, Somerset, Waldo, and Washington
counties. Jury Plan at 3.
A juror qualification questionnaire (the “Qualification Questionnaire”) is
then sent to each person whose name is drawn, along with a letter from the Clerk of
the Court instructing the prospective juror in the process. Jury Plan at 4; see also
Sample Juror Qualification Questionnaire, United States District Court for the
District of Maine, available at https://www.med.uscourts.gov/sites/med/files/Sample
Juror Qualification Questionnaire.pdf. The Qualification Questionnaire contains a
4 	The prior master jury wheel drew names from only the voter rolls and drivers’ license rolls.
For juries selected after July 2022, a new master wheel drawing names from three source lists—voter
rolls, drivers’ license rolls, and state identification card holder rolls—was used.
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number of questions corresponding to the exclusions contained in the JSSA.5 The
Qualification Questionnaire also ask questions regarding race in order to allow the
collection of data that can ensure that jurors are being randomly selected from a fair
cross-section of the community and that no citizen is being discriminated against
under 	28 	U.S.C. 	§ 	1862.6 	The 	Clerk 	of 	the 	Court 	sends 	out 	Qualification
Questionnaires 	on 	a 	rolling 	basis, 	and those 	Qualification Questionnaires 	are
5 	Section 1865 provides that an individual is deemed qualified “unless he—
(1) is not a citizen of the United States eighteen years old who has resided for a period
of one year within the judicial district;
(2) is unable to read, write, and understand the English language with a degree of
proficiency sufficient to fill out satisfactorily the juror qualification form;
(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury
service; or
(5) has a charge pending against him for the commission of, or has been convicted in a
State or Federal court of record of, a crime punishable by imprisonment for more than
one year and his civil rights have not been restored.”
28 U.S.C. § 1865(b).
6 	A remark provided in explanation to the question on race on the Qualification Questionnaire
states:
Question 10 – RACE. Federal law requires you as a prospective juror to indicate your
race. This answer is required solely to avoid discrimination in juror selection and has
absolutely no bearing on qualifications for jury service. By answering this question you
help the federal court check and observe the juror selection process so that
discrimination cannot occur. In this way, the federal court can fulfill the policy of the
United States, which is to provide jurors who are randomly selected from a fair cross
section of the community.
Sample Juror Qualification Questionnaire, United States District Court for the District of Maine,
available 	at 	https://www.med.uscourts.gov/sites/med/files/Sample_Juror_Qualification_
Questionnaire.pdf. Under 28 U.S.C. § 1862, “[n]o 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.
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continuously being received by the Clerk’s office.7 The Jury Administrator is required
to utilize the data contained in the Qualification Questionnaires, as well as census
data for the jurisdiction, to create Form AO-12. Evidentiary Hr’g Tr. at 20; see also
Ct. Ex. List (ECF No. 228) (the Jury Administrator provided the parties with the most
recent AO-12 in advance of the June 24, 2022 evidentiary hearing).
The Clerk processes the Qualified Questionnaires by removing any individuals
who are excludable under 28 U.S.C. § 1866(c). Jury Plan at 6–7.8 The Clerk then
randomly draws from the qualified jury wheel “such numbers of names of persons as
may be required for assignment to grand or petit jury pools.” Jury Plan at 5.
Each person drawn for service is issued a summons to appear for jury selection.
Plan at 5–6. In addition, jurors who receive a summons receive an additional
questionnaire, inquiring into the prospective juror’s age, place of residence, place of
birth, length of residence in Maine, marital status, number of children, prior jury
service, prior involvement in any court matter, connection to law enforcement,
occupation, spouse’s occupation, education, criminal history, fluency with English,
and physical or mental conditions requiring accommodation (the “Supplemental
Questionnaire”). 	These 	Supplemental Questionnaires 	are provided to 	counsel
shortly before jury selection to help them determine their challenges for cause. The
7 	The Clerk must follow the processes described in the Plan for dealing with Qualifying
Questionnaires that are returned as undeliverable or not returned at all. Jury Plan at 4–5.
8 	In addition to the exclusions noted at 28 U.S.C. § 1866(c), individuals in certain occupational
classes are exempt from service, see Jury Plan at 7; 28 U.S.C. § 1863(b)(5), and individuals over the
age of 75 can request to be excluded, Jury Plan at 7.
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Supplemental Questionnaires contain no information regarding race. See, e.g., Juror
Questionnaires (ECF Nos. 176 & 258).
II. 	Fair Cross-Section Challenge9
Under the Sixth Amendment of the United States Constitution, criminal
defendants are guaranteed a trial “by an impartial jury of the State and district
wherein the crime shall have been committed.” U.S Const. am. VI. “The amendment
has been interpreted to guarantee a criminal defendant a jury ‘drawn from a source
fairly representative of the community.’ ” Anaya v. Hansen, 781 F.2d 1, 3 (1st Cir.
1986) (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)). The JSSA similarly
guarantees “juries selected at random from a fair cross section of the community,” 28
U.S.C. § 1861, and “[t]he constitutional and the statutory requirement have been
construed as functional equivalents.” United States v. Hafen, 726 F.2d 21, 23 n.1 (1st
Cir. 1984).
To establish a prima facie violation of the fair cross-section requirement, a
petitioner 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
9 	As the Government points out, the Defendants have failed to file a sworn statement of facts in
support of the instant motion—a “strict prerequisite[ ] that Congress established for challenging juries
alleged to have been selected in violation of the [Jury Selection and Service] Act.” United States v.
Foxworth, 599 F.2d 1, 3–4 (1st Cir. 1979); see also 28 U.S.C. § 1867(d). Despite the Defendants’ failure
to comply with the prerequisites of the Act, I will address the merits of the Defendants’ argument.
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exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357,
364 (1979); United States v. Royal, 100 F.3d 1019, 1024 (1st Cir. 1996).
There is no question that the Defendants satisfy the first prong of the Duren
test, as Black people are a “distinctive group” for the purpose of a jury composition
challenge. See Peters v. Kiff, 407 U.S. 493, 498–99 (1972); Anaya, 781 F. 2d at 6.
Where the Defendants run into trouble is at the second prong, which asks
whether the “representation of [the distinctive] group in venires from which juries
are selected is . . . fair and reasonable in relation to the number of such persons in
the community.” Duren, 439 U.S. at 364. The Defendants’ own data shows that the
population of Division 1—the division from which the Bangor jury pool is drawn—is
0.7% Black. Jury Challenge Mot. 9. The First Circuit has held that, in cases where,
as here, a very small portion of the population is Black, underrepresentation should
be measured using the “absolute disparity” method. See Hafen, 726 F.2d at 24 (“[T]he
comparative disparity calculation is ordinarily inappropriate where a very small
proportion of the population is [B]lack and . . . in such a circumstance[ ] it distorts
reality.” (internal quotation marks omitted)).
“Absolute disparity in the jury selection context is defined as the difference
between the percentage of a certain population group eligible for jury duty and the
percentage of that group who actually appear in the venire.” Ramseur v. Beyer, 983
F.2d 1215, 1231 (3d Cir. 1992). Here, to calculate absolute disparity, the percentage
of individuals who identified themselves as Black on the Qualification Questionnaire
(0.38%) is subtracted from the percentage of the population of Division 1 that is Black
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(0.7%). See Jury Challenge Mot. 8. This calculation results in an absolute disparity of
0.32%, which, under Hafen, 	is 	insufficient 	to 	establish 	that Black 	people are
underrepresented in the venires from which jurors are selected in Division 1. See
Hafen, 726 F.2d at 23 (finding that an absolute disparity of 2.02% was not sufficient
to show underrepresentation). In sum, the absolute disparity analysis does not
support a finding that Black people are underrepresented in the jury selection
process.
The Defendants’ argument on the second Duren prong also fails because it is
undeveloped 	and 	unsupported. 	The 	Defendants 	assert 	two 	bases 	for 	their
underrepresentation argument. First, they state that “to the best of the defense’s
information and belief in analyzing the potential jury pool when this matter was set
down for jury selection on April 5, 2022, there was not a single Black [person] in the
venire.” Jury Challenge Mot. 7. To support that claim, the Defendants cite only to
their earlier motions to continue filed on April 2, 2022, where they made the same
unsupported claim. Mot. for Continuance (“[T]he defense learned, on March 30, 2022,
that not a single member of the jury venire is Black.”); Def. Holland’s Mot. to Join
Def. Muller’s Mot. to Continue Filed at ECF # 185. As I explained earlier, the
Supplemental Questionnaires were published on the Electronic Court Filing system
prior to trial, but they did not contain any data as to race or ethnicity, nor had other
pertinent data been made available to counsel. See Juror Questionnaires (ECF No.
176). I questioned defense counsel Zelin about the basis for the claim, and he could
provide no coherent explanation. To this day, despite being granted all the discovery
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they sought, the defense has not provided the Court with any factual basis for this
claim.
Second, 	the 	Defendants 	offer 	data 	purporting 	to 	demonstrate
underrepresentation. Jury Challenge Mot. at 7–9. While the Defendants do offer
numbers that are relevant to this determination, they provide no analysis. Jury
Challenge Mot. at 7–9. When called out on this fact in the Government’s Opposition,
the Defendants conceded in their Reply that they did not perform either an absolute
disparity or comparative disparity analysis. Def. Andre Muller’s Reply to the Gov’t’s
Resp. 	to 	Jury 	Challenge 	Mot. 	(“Defs.’ 	Reply”) 	1 	(ECF 	No. 	243). 	As 	for 	the
comparative disparity test, the defense states:
The defense chose not to offer up a comparative disparity analysis, as it
was surely to be met with the government’s protestation that this test
can be misleading, particularly where the distinctive group makes up a
small percentage of the jury eligible population.
Defs.’ Reply at 2. Essentially, the Defendants appear to have offered no analysis or
argument because they understood that they lose under the absolute disparity test
and that the comparative disparity test would distort the outcome. Because the
Defendants do not bother to run the comparative disparity analysis, make no
argument as to how the comparative disparity could be used here, and offer nothing
to suggest that Hafen should not control here, I consider their argument on the second
prong waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”)
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For a jury challenge, each prong of the Duren test must be met. Since the
Defendants’ fair-cross-section challenge fails at the second prong, I need not reach
the third prong. See Hafen, 726 F.2d at 24 (deciding case under Duren’s second prong
and not reaching third prong).
III. 	Equal Protection
The Defendant also alleges that underrepresentation of Black people from
Division 1’s venire violates his equal protection rights under the Fifth Amendment.
See Jury Challenge Mot. 1, 5–6. To show an equal protection violation in the context
of jury selection, a defendant must (1) “establish that the group . . . is a recognizable,
distinct class, singled out for different treatment under the laws, as written or as
applied,” (2) prove “the degree of underrepresentation . . . by comparing the
proportion of the group in the total population to the proportion called to serve as . . .
jurors, over a significant period of time,” and (3) show discriminatory intent.
Castaneda v. Partida, 430 U.S. 482, 494 (1977); see also United States v. Hernandez-
Estrada, 749 F.3d 1154, 1166 (9th Cir. 2014).
Here, again, the Defendants provide raw data from recent history and claim
consistent underrepresentation of Black people without analysis as to the degree of
underrepresentation. Even if I assume, however, that the Defendants can meet the
second 	prong—proving 	historical 	underrepresentation—there 	is 	no 	evidence 	of
discriminatory intent. Indeed, the Defendants seem to concede that they do not
believe the alleged underrepresentation of Black people from the jury selection
process was intentional. See Jury Challenge Mot. 12 n.8 (“The defense is not
suggesting 	that 	the 	underrepresentation 	of 	Blacks 	was 	intentional.”). 	As 	the
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Government points out, the District of Maine’s Jury Plan is “designed to ensure a
random selection of a fair-cross-section of the citizens residing in every county within
the District of Maine,” and states that the “selection of names for the master jury
wheel shall ensure that every county within each jury subset is substantially
proportionally representative.” Gov’t’s Opp’n to Defs.’ Mot. to Dismiss the Indictment
or, Alternatively, for a Change of Venue of the Trial to the S. Dist. of New York
(“Gov’t’s Opp’n”) 8 (ECF No. 240). Further, the District draws names, not just from
voter records, but also from drivers’ license and state identification card rolls, in an
effort to reach more Maine residents. The Defendants make no contention that the
Jury Administrator has failed to follow the District’s Jury Plan, nor do they present
any other evidence of discriminatory intent. Thus, the equal protection challenge is
denied.
IV. 	Change of Venue
Finally, I turn to the Defendants’ request that venue be transferred to the
Southern District of New York pursuant to Federal Rule of Criminal Procedure 21(a).
Jury Challenge Mot. 13–15. “Venue change on grounds of prejudice will be deemed
appropriate 	where 	there 	is 	an 	ever-prevalent 	risk 	that 	the 	level 	of 	prejudice
permeating the trial setting is so dense that a defendant cannot possibly receive an
impartial trial.” United States v. Quiles-Olivo, 684 F.3d 177, 182 (1st Cir. 2012). “This
prejudicial fog clouding a trial’s fairness may be established where the facts show
‘that jury prejudice should be presumed, and if prejudice should not be presumed,
that the jury was actually prejudiced against the defendant.’ ” Id. (quoting United
States v. Rodríguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991)).
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In general, “[a] presumption of prejudice is reserved for those extreme cases
where publicity is ‘both extensive and sensational in nature.’ ” United States v. Misla–
Aldarondo, 478 F.3d 52, 58 (1st Cir. 2007) (quoting United States v. Angiulo, 897 F.2d
1169, 1181 (1st Cir.1990)). This applies “in cases in which pervasive pretrial publicity
has inflamed passions in the host community past the breaking point.” United States
v. Walker, 665 F.3d 212, 223 (1st Cir .2011). In this case, the Defendants do not allege
that there has been any extensive pretrial publicity about this case in particular;
rather, the Defendants argue that racist comments made by former Maine Governor
Paul LePage will make the jury racially biased toward the Defendants, who are
Black. See Jury Challenge Mot. 13.
This very same argument was already soundly rejected by this Court in United
States v. Crosby, 1:17-cr-00123-JAW-1, 2018 WL 3431926 (D. Me. July 16, 2018). In
that case, the defendant also claimed that racist comments by Governor LePage about
out-of-state Black men supported his assertion of prejudice under Rule 21(a). See id.
at *6. Despite those comments, the Court rejected the defendant’s request for a venue
change because it was “unconvinced that the past race-based prejudicial comments
attributed to the Governor of Maine render Mr. Crosby unable to obtain a fair trial.”
Id. at *7.
For the same reasons, I reject the Defendants’ instant motion to change venue
under Rule 21(a). As in Crosby, the Defendants have made no effort to substantiate
their claims that these remarks “have any current impact, let alone the drastic one
required for transfer of venue—that [they] ‘cannot possibly receive an impartial
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trial.’ ” Id. at *7 (quoting Quiles-Olivo, 684 F.3d at 182). Though the Defendants do
state that former Governor LePage’s comments “were widely reported” and “are still
readily available on the internet,” they do not provide any evidence—aside from the
fact 	that 	former Governor LePage 	is again 	running 	for Governor—that 	those
comments would have more of a prejudicial impact today than they would have in
2018, when Crosby was decided. Jury Challenge Mot. 13 n.9. As Judge Woodcock
wrote in Crosby, “[v]oir dire is a cardinal pillar of our jury selection process designed
to select petit jurors who are open-minded and unbiased.” Crosby, 2018 WL 3431926,
at *7. Counsel will be given ample opportunity in voir dire to select a fair-minded
jury. The motion to change venue is denied.
CONCLUSION
For the reasons stated above, the Court DENIES the Defendants’ motion to
dismiss the indictment or change the venue of the trial.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 26th day of July, 2022.
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