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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 236 of 239 source list will be an exact statistical mirror of the community.” United States v. Guzman, 337 F. Supp. 140, 143 (S.D.N.Y. 1972); see also Taylor, 419 U.S. at 538. The mere fact that a jury selection system is imperfect does not make it invalid. Swain v. Alabama, 380 U.S. 202, 209 (1965) (overruled on other grounds). Accordingly, the Second Circuit has found that absolute disparities as high as nearly 5% fail to establish a prima facie case of underrepresentation. See, e.g., Biaggi, 909 F.2d at 677-78 (3.6% for Blacks and 4.7% for Hispanics); United States v. Ramnath, 131 F.3d 132, 132 (2d Cir. 1997) (3.45% for African-Americans and 4.87% for Hispanics); see also Barlow, 732 F. Supp. 2d at 34-35 (collecting out-of-circuit cases rejecting claims presenting similar and even higher disparities).”! Properly calculated, the “absolute disparity” in this case falls comfortably within the range deemed acceptable by the Second Circuit and other courts. As noted, the “relevant jury pool” is the White Plains Master Wheel, which is comprised of 11.20% Black or African-American persons and 12.97% Latino or Hispanic persons. (Siskin Aff. at ¢ 28). The “community population” is the jury eligible population for the five counties from which the White Plains Master Wheel is drawn, which was comprised of 12.45% Black or African-American persons and 14.12% Hispanic or Latino persons in 2018. (Ud. at § 19). This yields an “absolute disparity” of 1.25% for Black or African-American persons and 1.15% for Latino or Hispanic persons. (/d. at 28). That disparity does not rise to the level of satisfying the second prong of the Duren test. ™ Tn United States v. Jackman, the Second Circuit held that an absolute disparity of 2.5% for Black or African-American persons and 3.4% for Hispanic or Latino persons was sufficient to satisfy the second prong of the Duren test. 46 F.3d 1240 (2d Cir. 1995). The unique facts of Jackman make it readily distinguishable. The jury clerk in Jackman relied on a qualified jury wheel that was mostly drawn from a master jury wheel that completely excluded potential jurors from two cities in the Division—cities that accounted for 62.93% of the voting-age Black population and 68.09% of the voting-age Hispanic population in the division. See id. at 1242-44. This resulted in a venire comprised of no Black or African-American persons and one Hispanic or Latino person. /d. at 1244. See also id. at 1252 (Walker, J., dissenting) (stating that the majority’s decision was “at odds with every decision in every circuit applying the Duren test’). 209 DOJ-OGR-00003170