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SDNY COURTHOUSE, June 30 – On a legal call designed to give defense counsel information about White Plains grand juries in the U.S. District Court for the Southern District of New York, live tweeted by Inner City Press, it emerged that a grand jury has "met" in the SDNY in Manhattan in the last week.

Apparently, some grand jurors participated by video.

 This seems noteworthy, given for example that in March allowing a single juror in the US v. Ali Sadr Hashemi Nejad trial to deliberate by video required the defendant's consent. Why not this? Here is the blow by blow, then background on one of the underlying cases, US v. Balde (there is also US v. Schulte, and other cases) --

Judge Failla is questioning SDNY jury administrator.

Q: Can you answer for your staff? A: Yes.

Q: What does a jury administrator do? A: I oversee line staff, my jury clerks here. I create pools for cases to go forward. We create a master jury wheel with a vendor

 A: I have a staff of nine. We do petit as well as grand juries.... We have an outside vendor prepare the summons. We check: do they live in the District, are they a citizen, etc. Then we put them in the qualified wheel that I pick pools from.

 Judge Failla: What is the master jury wheel? A: We get registered vote list and pull names.  We get three to five million names in the master jury wheel. Judge Failla: How often do you update it? A: We rebuild the wheel every four years.

Judge Failla: Please turn to page 2 of the government's June __ 2020 letter. Where it says "Divisional wheel." A: NYC is Division 1 - Bronx, Manhattan. Westchester, Putnam and Rockland are in that and White Plains, Division 7, which contains more counties.

Judge Failla: What is the AO-12 form? A: It has race and other information, a statistical sampling to compare to population data, in the census data.  Judge Failla: What's the JS-12 form? A: Race, gender and ethnicity, but not compared to census.

 A: Let me add, to get 90 to 120 jurors, I have to send out 400 summonses.  Judge Failla: Those who show up go to jury assembly room? A: Yes. Grand juries, too. A Magistrate Judge presides.  Judge Failla: Is there an AUSA there? A: Yes.Judge Failla: Are you working under a jury plan now? A: Yes, dated February ... 2009. It's called "Amended Plan for the Random Selection of Grand and Petit Juries for the SDNY." Judge Failla: Any amendments? A: Only two orders signed by Chief Judge recently.

Judge Failla: Are you in compliance with Chief Judge McMahon's order? A (after a laugh) Yes. Judge Failla: When was the last grand jury in Manhattan SDNY? A: March 26. Q: So after that, all in White Plains? A: I would assume. Judge Failla: Who is the vendor? A: Michael Sutera Data Systems. Judge Failla: When were the grand jurors summoned in my case, US v. Balde?

A: November 2019. Balde's lawyer: We'll need date about this Division 7 wheel. Can I ask a question? Judge Failla: You can ask me, and I'll decide if I ask Ms. Thomas. Balde's lawyer: Are the reports A0-12 routinely produced? Where are they stored?

 Judge Failla: Is it the that an A0-12 is generated during the building of an initial wheel? A: Yes. Judge Failla: So February 2017? A: I would think so.Judge Failla: Is it the that an A0-12 is generated during the building of an initial wheel? A: Yes. Judge Failla: So February 2017? A: I would think so.

Judge Failla: I could order you to create an A0-12... Do you have any? Any other judge ordered it? A: I have been ordered by another judge. Judge Failla: Let's imagine a judge not surnamed Failla ordered an A0-12, would you keep it? A: Yes.

Judge Failla: Ms Willis [Balde's lawyer], is that enough? A: Yes. Judge Failla: I suggest defense counsel caucus and how they propose to proceed. And speak with your expert.

 Federal Defender: A few on this call have received notice that the pool their client was indicted from was from Manhattan but sitting elsewhere? AUSA McKay: There's been a new grand jury in Manhattan, in the last week. Drawn from Division 1.

McKay: "It's possible that some of the grand jurors from the northern counties were allowed to sit virtually."

Really? After the proceeding, this was filed: "Minute Entry for proceedings held before Judge Katherine Polk Failla: Telephone Conference as to Souleymane Balde held on 6/30/2020. Defendant Souleymane Balde's presence waived; Attorney Jennifer Willis representing Defendant present. AUSAs Kiersten Fletcher, Mary Christine Slavik and Thomas McKay present. Court reporter Pamela Utter present. Thomas Burnett, Nick Chiuchiolo, Peter Davis, Sid Kamaraju, Lindsey Keenan, Sarah Kushner, Tom McKay, Daniel Nessim, Josiah Pertz, Andrew Rohrbach, Thomas Wright, Annalisa Miron, Ariel Werner, Christopher Flood, David Patton, Robert Baum, Edward Zas, Jonathan Marvinny, Donna Newman, Sabrina Shroff, Bobbi Sternheim, Michael Bachrach, Ken Montgomery, Counsel in the following cases, also present: 20 Cr. 288(LJL), 20 Cr. 293(LJL), 20 Cr. 286(WHP), 17 Cr. 548(PAC), 20 Cr. 301(PKC), 20 Cr. 300(PAC), 20 Cr. 303(RMB), 20 Cr. 294(PKC), 20 Cr. 292(PKC), 20 Cr. 304(AJN). Jury Administrator Linda Thomas and Counsel to the Clerk of Court Robert Rogers present. By 7/14/20, and after consultation with the expert, other defense counsel and the government, Ms. Willis hall file a letter in the Balde case, with defendant's request for records." We will have more on this.

Souleymane Balde from the MCC prison was on a video proceeding covered by Inner City Press on May 11 with U.S. District Court for the Southern District of New York SDNY Judge Katharine Polk Failla.

It is something of a high profile legal battle, having come back from the Second Circuit Court of Appeals.

   But there is also real life: Balde coughed and Judge Failla asked if he has been tested, and if the question was OK with his defense counsel Matthew Larsen.  

   Larsen OK-ed the question then noted that the  MCC is not testing in a meaningful way. He moved on to say after US v. Rehaif, the Court may not have jurisdiction. In the alternative, that Balde's plea was ineffective.

 And on May 21, with Inner City Press again present, Judge Failla ruled. She cited the Firth and Sixth Amendments and dismissed the indictment against Balde without prejudice, and stayed her order until "the earlier of the Government filing a new complaint in this action or May 22, 2020 at 12:00 pm."

     On May 11 Assistant US Attorney Slavik told Judge Failla that while right now there is a lack of quorum for a grand jury, the US Attorney's Office expects a new or resumed grand jury quorum by "the first half of June."

On May 26, Judge Jed S. Rakoff ordered Balde released. But on June 3 the US re-indicted Balde and on June 10, after Judge Victor Marrero referred the case back to Judge Failla, Balde appeared before her to be arraigned. Inner City Press was again present and live tweeted it:

Judge Failla: Do you have the new indictment, Mr. Balde? There in your apartment?

Balde: It's on my phone, in email.

Judge Failla: Can you open it up?  How do you plead?

Balde: Not guilty.

Judge Failla: There's a motion for grand jury information. The discovery has already been produced. Let's talk about trial dates. There will be but is not yet an email protocol to schedule trials.

 Judge Failla: There will be a priority for one and two defendant trial, rather than 10 defendant trials, given social distancing. Also a priority for defendants who are detained. So some things are not in my control.

 Judge Failla: It is my understanding Mr. Balde wants a jury trial. I would be willing to do a bench trial - I was about to have one, but for a last minute settlement, on Skype. 

Balde's lawyer: He prefers a jury trial. But as you've said, there are other issues.

  These issue include a proposal to resolve some or all of Federal Defender Jennifer Willis' motion by having a conference with the grand jury clerk. Inner City Press will stay on this.

  The case is now US v. Balde, 20-cr-281 (Failla).

***

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