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Case 20-17-00335-APAC Document 859 Filed 03/26/21 Page 15 of 20

the second element under Duren.⁸ 439 U.S. at 364.

B. Systematic Exclusion

Apart from the second Duren element, Schulte’s fair cross-section challenge must also fail because he cannot meet the third element: systematic exclusion, which requires a showing that the “underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364.

In Rioux, the Second Circuit explained that there is “systematic exclusion when the underrepresentation is due to the system of jury selection itself, rather than external forces.” 97 F.3d at 658. Under the external forces principle, outside causes of underrepresentation (such as “demographic changes”) do not constitute systematic exclusion. Id.; see, e.g., Schanbarger v. Macy, 77 F.3d 1424 (2d Cir. 1996) (per curiam) (jury selection process “drawn from voter registration lists” did not constitute systematic exclusion); United States v. Little Bear, 583 F.2d 211, 414–15 (8th Cir. 1978) (“inclement weather” in North Dakota that allegedly led to the underrepresentation of rural jurors was not systematic exclusion); United States v. Jones, 2006 WL 278248, at *3 (E.D. La. Feb. 3, 2006) (Hurricane Katrina’s alleged disparate impact on potential African-American jurors was not systematic exclusion). The lion’s share of Schulte’s systematic exclusion allegations is foreclosed by this principle.

First, Schulte contends that the Government systematically excluded African American and Hispanic American jurors by seeking the Indictment in White Plains in lieu of the more racially diverse Manhattan community. (Schulte Br. at 2.) But the reason the Government

⁸ Even if, as Schulte suggests, the White Plains qualified wheel is used as the relevant jury venire, the absolute disparities would be 3.69% and 3.64%. (See Gov’t Opp. Br. at 20.) Those statistics do not reflect Constitutional infirmities under Second Circuit teachings.

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