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SDNY COURTHOUSE, Jan 7 – 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? Below 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).

 On August 27, in the lead Balde case, "Defendant did not receive the expected production from the Jury Administrator."

  On September 14, another proceeding in Balde which Inner City Press covered. Robert Rogers, Counsel to the Clerk of Court and Gilbert Cardona, Assistant Jury Administrator, were present - and it was explained that Excel spread sheets are limited to just over one million records, and these Manhattan and White Plains "wheels" had more.

That's now fixed, and the process was described as filling and empty buckets, based on who votes in Presidential elections.

On November 9, this: "Souleymane Balde, will move this Court, before the Honorable Katherine Polk Failla, United States District Judge for the Southern District of New York, at a time to be set by the Court, for an Order dismissing the indictment as it was obtained in violation of the Fifth and Sixth Amendments to the United States Constitution and in violation of the Jury Selection and Service Act." They did.

And on December 7, the US Attorney's Office fired back, arguing that Balde "was properly indicted by a grand jury sitting in White Plains" and "has not established that Blacks or Hispanics are unfairly underrepresented." Really? The White Plains wheel? The US has a report by Bernard R. Siskin Ph.D., BLDS, LLC.

 On December 23 Balde's lawyers filed, quoting Siskin that "The Manhattan and Southern District communities are significantly more African American and Hispanic than the White Plains community." They point out that a Manhattan grand jury was unavailable in this case for only one month, from May 22 to June 24....

 On January 7 Judge Failla held oral arguments. She told the Federal Defender that arguments that the US Attorney's Office should have known the lack of a Manhattan division grand jury would last only one month, and had some nefarious reason for re-indicting Balde in White Plains were not persuasive.

Likewise she told the AUSA that to blur the divisions was not the right approach. All this was said before the arguments, so that they could be focus.

Does a defendant have a right to a trial not only in his or her District, but also Division? There are now 20 cases in SDNY in which grand jury wheel information has been sought. All eyes are on Balde. The matter is pending.

Inner City Press will continue to follow this case.

  Counsel for Josh Schulte was on the September 14 call. This grand jury issue spread to a case before Judge Rakoff, and US v. Matthews before Judge Vyskocil; Inner City Press asked Acting US Attorney Strauss about it on "dirty doctor" Robert Hadden.  Watch this site.

Previously, Judge Failla questioned 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.

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

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