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the Government had engaged in "prosecutorial gamesmanship" and forum shopping by seeking the Indictment from White Plains. Commonsense compels a contrary conclusion.
Finally, Schulte cites United States v. Johnson, 21 F. Supp. 2d 329 (S.D.N.Y. 1998), for the proposition that the relevant community is "widely understood to mean the 'district or division where the trial will be held.'" Id. at 334-35. The differing facts in Johnson, however, make that case distinguishable from the case at bar.
In Johnson, the defendants moved to dismiss an indictment obtained from White Plains on the ground that the fair cross-section requirement had been violated. Id. at 333. In assessing that claim, the Johnson court defined the relevant community as White Plains because that was "where the trial [was] to be held." Id. at 335. The key fact there, however, was that the defendants' grand and petit juries were both drawn from White Plains, see id., which made it only logical to conclude that the White Plains counties represented the relevant community. See id. at 334-35. But the circumstances here are quite different; Schulte's grand and petit juries derive from different courthouses in the District. Accordingly, this factual distinction precludes application of Johnson's conclusion that the relevant community is "the district or division where the trial is to be held."7 See 21 F. Supp.2d at 334-35. Schulte's reliance on Johnson is misplaced.
iii. Underrepresentation Analysis
Having determined the relevant jury venire and community, the underrepresentation analysis itself is clear-cut. The "primary approach used in this Circuit" is the absolute disparity method. Barnes, 520 F. Supp. 2d at 514 (examining case law); see Allen, 2021 WL 431458, at
7 Alternatively, even if Johnson is undistinguishable, the Court is bound to apply Bahna, which bears directly on this case and is a holding of the Second Circuit.
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