Case 6:16-cr-10141-EFM Document 188 Filed 12/08/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
___________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case No. 6:16-cr-10141-EFM-01

CURTIS WAYNE ALLEN,
Defendant.

MOTION FOR ORDER TO HAVE PROSPECTIVE JURORS SUMMONED
FROM MULTIPLE JURY DIVISIONS
Mr. Curtis Allen, through undersigned counsel, and joined by Mr.
Patrick Stein and Mr. Gavin Wright, asks this Court to order the Clerk of
Court Jury Coordinator to issue summonses to prospective jurors from both
the Wichita-Hutchinson and Dodge City jury divisions, proportionate to the
size of the qualified jury wheel from each division, to report for service on the
petit jury for this trial. All of the alleged events occurred in Western Kansas
in the Dodge City jury division. Yet, the citizens who live in this jury division
are systematically excluded from serving on a federal petit jury. Issuing
summonses to prospective jurors from both jury divisions will ensure the
defendants are afforded their Sixth Amendment and statutory right to juries
that represent a fair cross-section of the community, and ensure that the

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residents of the District of Kansas are afforded the civil right to serve as
jurors.
Legal Authority and Analysis
1.

The Sixth Amendment and the Jury Act provide for a jury trial
before a fair cross section of the community.

The Sixth Amendment requires that the impartial jury must be drawn
from “the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law.”1 “[T]he
American concept of the jury trial contemplates a jury drawn from a fair
cross section of the community” as “an essential component of the Sixth
Amendment right to a jury trial.”2
The Sixth Amendment also imposes a geographic limitation on the
prosecution of crimes, and the origins of the geographic limitation are found
in English common law. For example, the right to be tried by a jury from a
particular geographical region, or vicinage, came in part from the practice
established in England by the early 1600's, and in part as a reaction to the
efforts of the English Crown during the 1760's to bring colonists to London in
order to try them for treason.3 Vicinage “means neighborhood, and ‘vicinage

1

U.S. Const. amend. VI.

2

Taylor v. Louisiana, 419 U.S. 522, 527-28 (1975).

3

Zicarelli v. Gray, 543 F.2d 466, 468 (3d Cir. 1976).
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of the jury’ meant jury of the neighborhood or, in medieval England, jury of
the county.”4 The original version of the Sixth Amendment drafted by James
Madison and introduced in the House of Representatives incorporated the
term “vicinage,” but the term does not appear in the final version of the Sixth
Amendment.5 Rather, the Founders settled on the constitutional right to be
tried in the “[s]tate and district wherein the crime shall have been
committed.”6 And “[a] jury selection system violates that right if the system
does not draw its jury members from a fair cross section of the community.”7
The modern judicial district is borne from statute. The Jury Selection
and Service Act of 1968 (“Jury Act”)8 divides federal judicial districts and
imposes the minimal requirements on judicial districts for the upholding the
rights of defendants and prospective jurors. For criminal defendants, who are
entitled to trial by jury, they “shall have the right to grand and petit juries

4

Williams v. Florida, 399 U.S. 78, 94 n. 35 (1970).

See id. at 93 (“pending and after the adoption of the Constitution, fears were
expressed that Article III's provision failed to preserve the common-law right to be
tried by a ‘jury of the vicinage.’”).
5

6

U.S. Const. amend. VI.

7

United States v. Shinault, 147 F.3d 1266, 1270 (10th Cir. 1998).

8

28 U.S.C. § 1861, et. seq.
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selected at random from a fair cross section of the community in the district
or division wherein the court convenes.”9
The Jury Act also establishes a separate right for prospective jurors,
such that “all citizens shall have the opportunity to be considered for service
on grand and petit juries in the district courts of the United States, and shall
have an obligation to serve as jurors when summoned for that purpose.”10
The Jury Act also prohibits discrimination in jury selection, by stating that
“[n]o citizen shall be excluded from service as a grand or petit juror in the
district courts of the United States or in the Court of International Trade on
account of race, color, religion, sex, national origin, or economic status.”11
2.

The current practice for federal trials in Wichita systematically
excludes prospective jurors from the Dodge City jury division from
serving on petit juries.

In the District of Kansas, Local Rule 38.112 attempts to effectuate the
statutory requirements of the Jury Act. The Rule establishes six jury
divisions, designated by county.13 The clerk of court is authorized to manage

9

28 U.S.C. § 1861.

10

Id.

11

28 U.S.C. § 1862.

12

D. Kan. Rule 38.1 (Random Selection of Grand and Petit Jurors).

Id. at para. (a). The six jury divisions are: (1) Kansas City-Leavenworth; (2)
Wichita-Hutchinson; (3) Topeka; (4) Dodge City; (5) Fort Scott; and (6) Salina.
13

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jury selection14 and selects at random the names of prospective grand and
petit jurors from the official lists of registered voters in each county in
Kansas.15 Each county must be substantially proportionately represented in
the “master jury wheel.”16 The Rule establishes the minimum number of
names that must be provided with a master jury wheel to be placed for each
division.17 The Rule does not, however, vest discretion with the jury
coordinator to purposefully exclude otherwise qualified jurors from being part
of the master jury wheel.
From the master jury wheel, the clerk must maintain a qualified jury
wheel for each division,18 which is established by a random drawing from
each master jury wheel19 and the mailing of a return of a questionnaire20

14

Id. at para. (c).

15

Id. at para (d).

16

Id. at para (e)(3); see also 28 U.S.C. § 1863.

Id. at para. (f). The minimum number of names for the master jury wheel for each
division is as follows: (1) Kansas City-Leavenworth – 7, 500 names; (2) WichitaHutchinson – 7,000 names; (3) Topeka – 5,000 names; (4) Dodge City – 1,000
names; (5) Fort Scott – 1,000 names; and (6) Salina – 1,000 names.
17

18

Id. at para. (h)(1).

19

Id. at para. (g)(1)(A).

20

Id. at para. (g)(1)(D).
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from the persons selected. Assignment of prospective jurors to petit or grand
jury panels is then made from the qualified jury wheel for each division.21
For a grand jury, the Rule provides that separate panels must be
established by grouping jury divisions at locations where court is held.22 For
grand juries held in Wichita, this is accomplished by summonsing prospective
jurors from the qualified jury wheels from Wichita-Hutchinson and Dodge
City divisions.23 The Rule does not make the same or similar grouping by
division for petit juries and is silent about combining any jury divisions for
purposes of establishing a petit jury panel.24
The jury coordinator briefly explained at a status conference held in
this case on November 16, 2017, that the clerk does not issue summonses to
prospective jurors from the Dodge City qualified jury wheel to serve on petit

21

Id. at para. (h)(6).

22

Id. at para. (h)(6)(B).

23

Id. at (h)(6)(B)(iii).

The Wichita-Hutchinson jury division is made up of the following counties:
Butler, Cowley, Harper, Harvey, Kingman, Marion, McPherson, Reno, Rice,
Sedgwick, and Sumner.
The Dodge City jury division is made up of the following counties: Barber,
Barton, Clark, Comanche, Edwards, Finney, Ford, Grant, Gray, Greeley, Hamilton,
Haskell, Hodgeman, Kearney, Kiowa, Lane, Meade, Morton, Ness, Pawnee, Pratt,
Rush, Scott, Seward, Stafford, Stanton, Stevens, and Wichita.
24

Id. at (h)(6)(A).
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juries in Wichita but only issues summons to prospective jurors from the
Wichita-Hutchinson jury division.25 In other words, citizens who live in a
county within the Dodge City jury division, who are otherwise qualified to
serve on a petit jury, are never issued a summons to do so.
3.

The systematic exclusion of prospective jurors from the Dodge City
jury division discriminates against more rural, conservative
jurors.

County voter registration lists are the total pool of persons who may
serve on a jury in the District of Kansas and thus represent the “cross
section” of the citizens residing within the District.26 Because all of the
prospective jurors in this case will be registered voters, voter registration is
the relevant data from which the defense can demonstrate the differences
between the divisions within the District of Kansas. As noted, under the
Local Rule, the grand jury panels are grouped by combining two jury
divisions by geography, or by county of residence; the same grouping is not
done for petit juries. For purposes of this motion and the relief requested, Mr.
Allen compares the two jury divisions that are combined for grand juries: the
Wichita-Hutchinson jury division and the Dodge City jury division.

25

Counsel confirmed this fact following the hearing.

26

28 U.S.C. § 1863; D. Kan. Rule 38.1(d).
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First, the Wichita-Hutchinson jury division encompasses counties with
a more urban population than the Dodge City jury division. Even passing
knowledge of the State of Kansas confirms this to be true – the counties in
western Kansas that encompass the Dodge City jury division are more rural.
Voter registration numbers likewise show that more people are registered to
vote in the Wichita-Hutchinson jury division than the Dodge City jury
division. According to the State of Kansas Secretary of State’s Office, 445,434
persons were registered to vote who live in the Wichita-Hutchinson jury
division and 113,896 persons were registered to vote who live in the Dodge
City jury division.27 By systematically excluding the Dodge City jury division
from serving on the jury for this case, the court is excluding from jury service
persons who are more likely to live in rural areas of Kansas.
Second, in modern America, the distinction between “liberals” and
“conservatives” is generally considered to be a difference between the two
major political parties – Democrats as “liberals” and Republicans as
“conservatives.” A political difference between the two parties also extends to
their respective ideologies regarding the appropriate size and power of the

This voter registration data was official as of August 1, 2015, the last date in
which official voter registration data was certified by the Secretary of State for all
counties in Kansas. See
http://www.kssos.org/elections/elections_registration_voterreg.asp (last visited
December 8, 2017).
27

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federal government and the individual rights of its citizens. This case is
uniquely political because much of the anticipated evidence will center
around, and was in reaction to, the 2016 Presidential election. Additionally,
this case will require the jury to evaluate and weigh evidence regarding
whether the alleged conduct constitutes the crimes charged or whether it was
constitutionally protected speech, assembly, and petition,28 and/or the right to
bear arms.29
According to the Kansas Secretary of State’s Office, the following charts
represent the differences in voter registration in August 2015 by political
party in the two jury divisions within the District of Kansas that make up the
same grand jury pool:30

WichitaHutchins
on
Dodge
City
TOTAL

Total # of
Democra
Registered ts
Voters
445,434
98,815
(22.18%)

Republica
ns

Libertaria
n

Unaffiliated

197,579
(44.36%)

3,381
(.76%)

145,659
(32.7%)

113,896

63,823
(56.04%)

692
(.61%)

29,709
(26.08%)

19,672
(17.27%)

559,330

28

U.S. Const. amend. I.

29

U.S. Const. amend. II.

See Office of the Kansas Secretary of State, Voter Registration and Party
Affiliation, available at:
http://www.kssos.org/elections/elections_registration_voterreg.asp (last visited,
December 8, 2017).
30

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The data shows that for every prospective juror who lives in a county
within the Wichita-Hutchinson jury division who is a registered Democrat,
there are two prospective jurors who are registered as a Republican. But for
every prospective juror who lives in a county within the Dodge City jury
division who is registered Democrat, there are 3.24 registered Republicans.
In other words, there is a far greater percentage of jurors who live in the
Dodge City jury division who affiliate with a more “conservative” political
party.
The political difference between the two jury divisions is greater when
a comparison is made as to how the voters in these Kansas counties actually
voted in the 2016 Presidential election. Again, this is particularly relevant to
this case because the alleged conspiracies occurred during the time of, and in
the context of, that election.

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According to the Kansas Secretary of State, the official results of the
2016 general election for President of the United States, by county were as
follows for the two jury divisions:31

WichitaHutchinson
Dodge City

Total # of
Voters
297,343
68,919

Clinton (D)

Trump (R)

Johnson (L)

99,849
(33.58%)
14,319
(20.78%)

182,776
(61.47%)
52,059
(75.54%)

14,718
(4.95%)
2,541
(3.69%)

In the Wichita-Hutchinson jury division, President Trump won the vote
by 27.89 percentage-points over Secretary Clinton. In the Dodge City jury
division, President Trump won by 54.76 percentage-points over Secretary
Clinton. Stated another way, a prospective juror who lives in a county within
the Dodge City jury division is twice as likely to be a Trump voter than the
prospective juror who lives in a county within the Wichita-Hutchinson jury
division.
The review of voter registration data proves that a jury pool that
systematically excludes jurors from the Dodge City jury division results in
exclusion of a disproportionate portion of residents holding certain

See Office of the Kansas Secretary of State, Election Statistics, available at:
http://www.kssos.org/elections/elections_statistics.html (last visited December 8,
2017). This chart excludes votes for candidates who belong to parties that were not
included in the Kansas Secretary of State voter registration data and for write-in
candidates. These votes were de minimus and the raw data of the votes excluded is
not significant enough to skew or impact the reliability of the statistical analysis.
31

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conservative political beliefs. The current practice thus wholly discriminates
against citizens of the twenty-eight counties who make up the Dodge City
jury division who have more conservative political views.
4.

Mr. Allen is entitled to have the citizens of the Dodge County jury
division serve on his jury.

Mr. Allen has a constitutional and statutory right to ensure the petit
jury panel selection does not systematically exclude persons who are
otherwise qualified to serve on a jury. In order to establish a prima facie
violation of the fair-cross-section requirement, Mr. Allen must show (1) that
the group alleged to be excluded is a “distinctive” group in the community; (2)
that the representation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.32
The first and third factors weigh in Mr. Allen’s favor. The group
excluded from petit jury service is an entire jury division which has, as a
matter of policy, been systematically excluded from service on a petit jury in
the District of Kansas. Thus, citizens from twenty-eight Kansas counties, who

32

Duren v. Missouri, 439 U.S. 357, 364 (1979).
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live in more rural areas and are more politically conservative, have no chance
to serve on a federal petit jury.
Regarding the second factor, the qualified jury pool for petit jury
service has no representation from the Dodge City jury vision so the selection
process is not fair and reasonable. Although courts have held that a petit jury
may be drawn constitutionally from only one division and not the whole
district,33 it does not follow that the clerk has discretion to systematically
exclude an entire jury division from petit jury service. Indeed, discrimination
through systematic exclusion of a sector of otherwise qualified venire persons
violates the Equal Protection Clause of the Fifth Amendment, the Sixth
Amendment34 and the Jury Act.35 The exclusion of an entire jury division
encompasses all identifiable or distinctive community groups within those
particular Kansas counties and results in politically conservative jurors being

United States v. Herbert, 698 F.2d 981, 984 (9th Cir. 1983) (citing Ruthenberg v.
United States, 245 U.S. 480 (1918))
33

Powers v. Ohio, 499 U.S. 400, 404 (1991) (“Although a defendant has no right to a
‘petit jury composed in whole or in part of persons of [the defendant's] own race,’ he
or she does have the right to be tried by a jury whose members are selected by
nondiscriminatory criteria.”).
34

28 U.S.C. § 1862 (“No citizen shall be excluded from service as a grand or petit
juror in the district courts of the United States or in the Court of International
Trade on account of race, color, religion, sex, national origin, or economic status.”).
35

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under-represented in the petit jury pool for federal criminal trials held in
Wichita.
The Tenth Circuit has also stated that “the partitioning of a district
into jury divisions is sanctioned by the statute,” under the Jury Act.36 But
“evidence that some cognizable group has been systematically excluded by
‘gerrymandering’ the division lines” would make the use of a jury division
unconstitutional.37
That is exactly what is occurring here. Although an entire jury division
is not a “cognizable group” based upon traditional criteria listed in the
statute (race, color, religion, sex, national origin, or economic status),38 the
current practice is clear political gerrymandering39 by drawing jury division
lines by county, grouping those jury divisions for purposes of service on grand

36

United States v. Test, 550 F.2d 577, 594 (10th Cir. 1976).

37

Id.

38

28 U.S.C. § 1862.

Shaw v. Reno, 509 U.S. 630, 650 (1993) (holding political gerrymanders to be
justiciable under the Equal Protection Clause) (citations omitted); see also Cooper v.
Harris, 137 S. Ct. 1455, 1465 (U.S. 2017) (“Rather, that district was the result of a
political gerrymander—an effort to engineer, mostly ‘without regard to race,’ a safe
Democratic seat.”).
39

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juries, and then excluding an entire jury division from petit jury service. This
results in a more politically diluted petit jury pool.40
“Competence to serve as a juror ultimately depends on an assessment
of individual qualifications and ability impartially to consider evidence
presented at a trial.”41 Competence to serve as a juror should not be based
upon which county the registered voter happens to reside in Kansas.
Finally, nothing precludes the court from drawing jurors from the
qualified jury wheels from the two jury districts when the unique
circumstances of the case and fundamental fairness require it.42 The statute43
endorses Mr. Allen’s request, as does Federal Rules of Criminal Procedure,44

9 AM. JUR. PROOF OF FACTS 2d 407 (Originally published in 1976) (“While cases in
the past often involved blatant discrimination with total or nearly total exclusion of
one or more groups, at the present time a jury discrimination case is more likely to
involve substantial underrepresentation of the group or groups, achieved by subtle
means.”).
40

41

Batson v. Kentucky, 476 U.S. 79, 87 (1991).

Although it is not the issue specifically presented in this motion, the defense
acknowledges that three Circuits have held that there is no right to a trial held in a
particular division, even the division where the crime occurred. See, e.g., Zicarelli,
543 F.2d at 479; United States v. Mase, 556 F.2d 671, 675 (2d Cir. 1977), cert.
denied, 435 U.S. 916, (1978); United States v. James, 528 F.2d 999, 1021 (5th Cir.
1976), cert. denied, 429 U.S. 959, (1976).
42

43

28 U.S.C. § 1861 (“fair cross section of the community in the district or division”).

Fed. R. Crim P. 18 contemplates several factors regarding the place of trial
(convenience of the defendant, any victim, and the witnesses), but it is otherwise
silent regarding the places from which prospective jurors may be drawn.
44

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and the District of Kansas Local Rule.45 Thus, there is no legal impediment to
prevent the Court from issuing summonses to prospective jurors just as it
does for grand juries held in Wichita, from both the Wichita-Hutchinson and
Dodge City jury divisions.
5.

Mr. Allen has standing to challenge the systematic exclusion as an
Equal Protection violation on behalf of the excluded jurors.

Mr. Allen has standing to raise the third-party equal protection claims
of jurors systematically excluded from service on a petit jury,46 and he does so
here. In determining whether to provide relief, the Court can thus consider
both Mr. Allen’s right to a jury composed of a fair cross section of the
community and the equal protection rights of prospective jurors from the
Dodge City jury division.
“The harm from discriminatory jury selection extends beyond that
inflicted on the defendant and the excluded juror to touch the entire
community.”47 In other words, discrimination through systematic exclusion of
prospective jurors impacts both Mr. Allen’s right to be tried before a fair cross

45

D. Kan. Rule 38.1(h)(6).

Powers, 499 U.S. at 415 (“We conclude that a defendant in a criminal case can
raise the third-party equal protection claims of jurors excluded by the prosecution
because of their race.”).
46

47

Batson, 476 U.S. at 87.
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section of the community and the prospective jurors from the Dodge City jury
division who never get the opportunity to serve on a petit jury.48
“The opportunity for ordinary citizens to participate in the
administration of justice has long been recognized as one of the principal
justifications for retaining the jury system.”49 As the Supreme Court said,
“[t]he jury system postulates a conscious duty of participation in the
machinery of justice . . . One of its greatest benefits is in the security it gives
the people that they, as jurors actual or possible, being part of the judicial
system of the country can prevent its arbitrary use or abuse.”50
As Alexis de Tocqueville remarked:
[T]he institution of the jury raises the people itself, or at least a
class of citizens, to the bench of judicial authority [and] invests the

The harm in systematically excluding prospective jurors particularly acute in this
case because it has generated substantial pretrial publicity. See, e.g., Press Release,
U.S. DEPARTMENT OF JUSTICE, Three Kansas Men Charged with Plotting a Bombing
Attack Targeting the Local Somali Immigrant Community (Oct. 14, 2016), available
at: https://www.justice.gov/opa/pr/three-kansas-men-charged-plotting-bombingattack-targeting-local-somali-immigrant-community; Oliver Morrison, A helpful
neighbor. A proud father. A farmer’s kid. And, the FBI says, terrorists, THE WICHITA
EAGLE, October 26, 2016, available at:
http://www.kansas.com/news/local/crime/article109081977.html; Ryan J. Reilly,
Crusader Militiaman Charged in Terror Plot Targeting Muslims Will Be Jailed
Until Trial, THE HUFFINGTON POST, October 20, 2017, available at:
https://www.huffingtonpost.com/entry/kansas-muslim-terror-plotcrusaders_us_59ea4d85e4b0a484d0632a11.
48

49

Powers, 499 U.S. at 406.

50

Balzac v. Porto Rico, 258 U.S. 298, 310 (1922).
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people, or that class of citizens, with the direction of society. … The
jury ... invests each citizen with a kind of magistracy; it makes
them all feel the duties which they are bound to discharge towards
society; and the part which they take in the Government. By
obliging men to turn their attention to affairs which are not
exclusively their own, it rubs off that individual egotism which is
the rust of society. …I do not know whether the jury is useful to
those who are in litigation; but I am certain it is highly beneficial
to those who decide the litigation; and I look upon it as one of the
most efficacious means for the education of the people which
society can employ.51
Citizens who live in counties that encompass the Dodge City jury
division are not being given the opportunity to participate in the
administration of justice by serving on a petit jury. They are being denied the
opportunity to fulfill their “conscious duty of participation in the machinery

Powers, 499 U.S. at 407 (quoting 1 DEMOCRACY IN AMERICA 334-337 (Schocken 1st
ed. 1961)).
51

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of justice,” or to be invested in “a kind of magistracy.” They are being denied
equal protection52 under the law.53
Conclusion
Mr. Allen is on trial for a conspiracy that is alleged to have been formed
and carried out in Western Kansas. Yet, due to a systematic exclusion of an
entire jury division, he will not be tried before any jurors from that part of
the State. This discriminatory practice excludes rural and conservative
jurors. This discriminatory practice violates Mr. Allen’s Sixth Amendment
right, the statutory requirements of the Jury Act, and citizens’ right to serve
on petit juries and equal protection under the law. The Court should order
the clerk issue summonses to prospective jurors from both the WichitaHutchinson and Dodge City jury divisions to serve on the petit jury for this
trial.

U.S. Const. amend. V; Bolling v. Sharpe, 347 U.S. 497, 499 (1955) (“But the
concepts of equal protection and due process, both stemming from our American
ideal of fairness, are not mutually exclusive.”).
52

Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303 (1880) (holding that State
denies a black defendant equal protection of the laws when it puts him on trial
before a jury from which members of his race have been purposefully excluded);
Batson, 476 U.S. at 89 (holding that “State's privilege to strike individual jurors
through peremptory challenges, is subject to the commands of the Equal Protection
Clause.”).
53

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Respectfully submitted,
s/Melody Brannon
Melody Brannon, #17612
Federal Public Defender for the
District of Kansas
117 SW 6th Avenue, Suite 200
Topeka, Kansas 66603-3840
Phone: 785/232-9828
Fax: 785/232-9886
melody_brannon@fd.org
s/ Rich Federico
Rich Federico, #22111
Staff Attorney (R&W)
Federal Public Defender
117 SW 6th Avenue, Suite 200
Topeka, Kansas 66603-3840
Phone: 785-232-9828
Fax: 785-232-9886
rich_federico@fd.org

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CERTIFIFCATE OF SERVICE
I hereby certify that on December 8, 2018, I electronically filed the
foregoing with the clerk of the court by using the CM/ECF system which will
send a notice of electronic filing to all interested parties.
s/ Rich Federico
Rich Federico

21