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section challenges under both the Act and the sixth amendment, our discussion of the statutory challenge also disposes of his constitutional claim.").
In addition to fair cross-section claims, a defendant may also assert other violations of the JSSA if those violations constitute a "substantial failure to comply with its provisions." Id. at 870 (cleaned up); Allen, 2021 WL 431458, at *4. "Mere technical violations" of the JSSA, however, are not actionable. LaChance, 788 F.2d at 864 (cleaned up). "Whether a violation is substantial or merely technical depends upon the nature and extent of its effects on the wheels and venire from which a defendant's grand jury was derived." Id. (cleaned up).
ANALYSIS
I. Fair Cross-Section Challenge
Because Schulte's fair cross-section claim arises under both the Sixth Amendment and the JSSA, he must meet the three-part test set forth under Duren. See LaChance, 788 F.2d at 870.
The parties do not dispute that the first element under Duren has been satisfied. That element asks whether "the group alleged to be excluded is a distinctive group in the community." Duren, 439 U.S. at 364. Here, Schulte alleges that African American and Hispanic American jurors were unlawfully excluded from the jury venire. (Schulte Br. at 7.) These groups have been recognized as "distinctive" by the Second Circuit. Rioux, 97 F.3d at 654 ("Rioux has satisfied the first prong of the Duren test: Blacks and Hispanics are unquestionably 'distinctive' groups for the purposes of a fair-cross-section analysis."); United States v. Barnes, 520 F. Supp.2d 510, 514 (S.D.N.Y. 2007). Schulte has therefore satisfied the first element under Duren. The Court holds, however, that Schulte cannot establish the second and third elements of the Duren test. Accordingly, his fair cross-section challenge must be rejected.
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