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Case 1:20-cr-00330-PAE Document 211 Filed 04/16/21 Page7of11 sitting in the same community where the case will be tried avoids a situation where one community charges the defendant but a different community tries her—a situation that is particularly fraught with fair cross-section concerns in an area such as New York City, where the demographic composition of communities can vary dramatically. See also Declaration of Jeffrey Martin in Support of Motion to Dismiss, U.S. v. Balde, No. 1:20-cr-00281-KPF, Dkt. No. 61-1 (filed Nov. 9, 2020), Exhibit A (“Martin Decl.”), at § 7 (“In my experience of over 50 federal jury challenges [] since 1997,” and “[u]ntil this case, I have not been involved in any jury challenge where the Grand Jury came from one division and the trial jury came from a different division.”). As noted above, courts have held consistently that the appropriate comparison “community” in a fair cross-section claim is the community where the case will be tried. Here, that is either the Manhattan Counties or the Southern District. Since the government does not dispute that when a comparison to either community is used, Black and Hispanic jurors are significantly underrepresented in the White Plains jury pool, the second Duren prong is met.” Il. The Underrepresentation Resulted from Systematic Exclusion. Contrary to the government’s contention, its decision to seek an indictment from a White Plains grand jury constitutes the “systematic exclusion . . . in the jury-selection process” required to satisfy the third Duren prong. See Duren, 439 US. at 364. “There is systematic exclusion * The government’s contention that the relevant jury pool to be measured against the comparison community is the White Plains master wheel rather than the White Plains gualified wheel, even if accepted, does not change the outcome. The government’s expert concedes that “the White Plains master jury wheel and hence its qualified jury wheel will be significantly demographically different” from the juror populations of the Manhattan Counties and the Southern District. Opp. Ex. 12 § 40 (emphasis added). See also Martin Decl. ff 19-21 (showing substantial underrepresentations in eligible juror populations of White Plains vis-a-vis Manhattan Counties and Southern District, including 13.94% underrepresentation of Hispanics when compared to Manhattan Counties and 9.29% underrepresentation for Hispanics when compared to Southern District). In any event, the White Plains qualified wheel is the appropriate jury pool, as fair-cross-section motions concern the actual “venires from which juries are selected.” Duren, 439 U.S. at 364; see also Taylor v. Louisiana, 419 U.S. 522, 538 (1975) ([T]he jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community.”). DOJ-OGR-00003770