USA v. Gendron

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
v.
PAYTON GENDRON,
Defendant.
22-CR-109-LJV
DECISION & ORDER
Before this Court are Payton Gendron’s requests for grand jury records under the
Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878 (“JSSA”). See Docket
Items 10 and 262. This Court previously granted many of Gendron’s requests. See
United States v. Gendron, 2024 WL 3439502 (W.D.N.Y. July 17, 2024); Docket Items
211 and 214. At issue now is Gendron’s letter dated December 20, 2024, with “further
JSSA requests.” See Docket Item 262 at 1.1 Having considered the parties’ earlier
briefing and oral argument on these issues, see Docket Items 10, 17, 18, and 212, this
Court grants Gendron’s requests in part and denies them in part for the following
reasons.
BACKGROUND
On July 14, 2022, a grand jury impaneled on March 25, 2022 (the “March 2022
grand jury”), returned an indictment against Gendron. Docket Item 6. A week later,
Gendron requested access to grand jury records so that he could bring a motion under
the JSSA. Docket Item 10. Gendron originally made 27 requests for records. Docket
1 Page numbers in docket citations refer to ECF pagination.
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Item 10-1 at 4-6. Since then, he has submitted written questions to the Jury
Administrator, see Docket Items 155 and 261, who has provided written responses, see
Docket Items 169, 184, and 261-1.
On October 17, 2024, after this Court granted many of Gendron’s record
requests, the Jury Administrator met with the parties and the Chief Deputy Clerk of the
Court to answer outstanding questions. See Docket Item 262 at 1. For some of
Gendron’s questions, the Jury Administrator explained that a vendor who creates the
Jury Wheel may have the answers. See Docket Item 261-1 at 2, 4; Docket Item 262 at
2-3. On November 18 and 19, 2024, defense counsel and a defense jury pool
consultant inspected juror questionnaires at the courthouse under this Court’s order.
See Docket Item 214; Docket Item 262 at 1.
In light of the October meeting and the November inspection, on December 20,
2024, Gendron wrote a letter to this Court with “additional requests for disclosure”
related to some of the original 27 requests. See Docket Item 262. On December 31,
2024, in response to questions from the Court, Gendron informally provided an update
about requests that were not addressed in the letter. Based on his letter and the
informal update, it appears that requests 9 and 22 are now resolved. See id. at 3. The
remaining requests fit into two categories: (1) follow-up questions about items that this
Court ordered to be produced and (2) requests on which this Court has not yet ruled.
DISCUSSION
Under the JSSA, a defendant may “move to dismiss the indictment or stay the
proceedings against him on the ground of substantial failure to comply with the
provisions of this title in selecting the grand . . . jury.” 28 U.S.C. § 1867(a). “The parties
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in a case shall be allowed to inspect, reproduce, and copy . . . records or papers [used
in connection with the jury selection process] at all reasonable times during the
preparation and pendency of such a motion.” Id. § 1867(f). Litigants have “essentially
an unqualified right to inspect jury lists.” Test v. United States, 420 U.S. 28, 30 (1975).
But this “unqualified right to records or papers encompasses only such data as a
defendant needs to challenge the jury selection process.” United States v. Pirk, 281 F.
Supp. 3d 342, 344 (W.D.N.Y. 2017) (alteration, citation, and internal quotation marks
omitted).
I. 	FOLLOW-UP REQUESTS
A. 	AO-12s (pertaining to original requests 6 and 7)
Gendron previously raised an issue about the census numbers in the AO-12
forms, and the Jury Administrator provided three updated AO-12 forms. See Docket
Item 262 at 1-2. But Gendron “believe[s] that [the three forms] still contain incorrect
census numbers”; more specifically, he says that the “form calls for the numbers for
United States citizens only,” but the current numbers are for the total population,
including noncitizens. Id.
Order: Gendron’s request for additional information is GRANTED. The Jury
Administrator shall address this issue and provide a response and explanation. If the
Jury Administrator determines that the census numbers are incorrect, he shall disclose
updated AO-12 forms with correct census data.
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B. 	Juror Questionnaire Information (pertaining to original requests 24
and 25)
Gendron requests 14 juror questionnaire forms that he identified as missing
when inspecting jury records at the courthouse. Id. at 4. The Jury Administrator
produced the questionnaire associated with one form that Gendron still identifies as
missing (100904194), and he explained that there were no questionnaires for some
others because, for example, two people are deceased. See Docket Item 261-3 at 1.
But it seems that there still may be some missing questionnaires. The Jury
Administrator did not immediately search for these during the inspection because the
defense consultant said that it might be unnecessary. Defense counsel now requests
them. Docket Item 262 at 4.
Gendron also asks for “questionnaire forms and associated Juror identification
numbers” for several “missing pool sequence numbers.” Id. During the inspection, the
Jury Administrator explained that each of these numbers was associated with someone
who deferred juror service, see Docket Item 261-3 at 1, and that he had no
questionnaire or juror identification number for any of them.
Order: Gendron’s request for additional information is GRANTED in part and
DENIED in part. The Jury Administrator shall attempt to locate outstanding
questionnaires, but Gendron’s request is denied to the extent that, for some requests, it
appears that no questionnaires exist. If the Jury Administrator locates outstanding
questionnaires, he shall provide copies with personal identifying information redacted.2
2 Personal identifying information includes names, addresses, and birth days and
months but not birth years. Because this order involves a small subset of records, this
Court finds that it would not be burdensome to redact personal identifying information
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Additionally, the Jury Administrator shall provide an answer to Gendron’s
questions: “Are people being deferred into the master jury wheel for the grand jury? If
so, who?” See Docket Item 262 at 4. And if there are questionnaires of “deferred
individuals[]” that were not yet disclosed and that the Jury Administrator can identify, he
shall provide them with personal identifying information redacted. See id.
If the Jury Administrator does not locate any or all outstanding records, he shall
provide a written description of the search that he completed and any other relevant
explanation.
II. 	PENDING REQUESTS
A. 	Written Instructions (pertaining to original request 11)
Gendron originally requested “[a]ny additional written instructions as provided by
the Court as described in the Jury Selection Plan section titled Method and Manner of
Random Selection.” Docket Item 10-1 at 4. The Jury Plan says that “the operator of the
computer” that provides random selection of grand jurors “shall comply” with “such
additional written instructions as provided by the [c]ourt.” U.S. District Court for the
Western District of New York Jury Plan 3-4 (Apr. 2018) (“Jury Plan”). Gendron is
seeking those “additional written instructions.” See Docket Item 10-1 at 4.
In response to specific inquiries from defense counsel, the Jury Administrator
confirmed that there may be relevant documents, some of which involve the vendor who
creates the Master Jury Wheel. See Docket Item 261-1 at 1-2. Gendron now seeks
those items. See Docket Item 262 at 2. Specifically, he requests “disclosure of
for any missing questionnaires and that redaction is more prudent than inspection at the
courthouse.
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documents, including communications and attachments between the vendor and the
Jury Administrator/Clerk that are responsive to our requests under Item 11”; written
instructions from the vendor about the process used to create the Master Jury Wheel;
and information about changes to the process of creating the jury wheel. Id.
1. 	Documents and Vendor Instructions
Because it is typical for courts to disclose information about how jury wheels are
created, and because this information is relevant and necessary to a potential JSSA
motion, the Clerk’s Office shall provide it to Gendron. See, e.g., United States v.
Warshak, 2007 WL 3406998, at *4 (S.D. Ohio Nov. 13, 2007) (“[T]he interests of justice
mandate the disclosure” of “[a]ll policies, rules, regulations, procedures, manuals, or
other written instructions created or maintained by the Clerk’s Office for selecting and
compiling jury wheels and juries.”); see also United States v. Miller, 116 F.3d 641, 657
(2d Cir. 1997) (explaining that jury administrator had testified in district court about
creation of jury wheel).
Furthermore, when outside vendors have created the jury wheel, courts have
ordered disclosure of communications with the vendors and descriptions of the work
that the vendors had completed. See, e.g., United States v. Todd, 2020 WL 5981673,
at *3 (E.D.N.Y. Oct. 8, 2020) (granting request for “[a] description of work done . . . and
communications with any vendors in the creation of the Master . . . Jury Wheel[] used to
summon grand jurors in this case” to the extent that the documents were retained for
the particular grand jury that returned the defendant’s indictment); United States v.
Corbett, 2020 WL 5803243, at *4-5 (E.D.N.Y. Aug. 21, 2020) (ordering similar
disclosure). Therefore, Gendron’s requests for documents about the creation of the
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Master Jury Wheel, including written instructions from the vendor, are granted, as
explained in detail at the end of Section II.A, infra.
2. 	Changes to the Process of Creating Jury Wheel
The Jury Administrator previously said that in making the wheel used to create
the March 2022 grand jury, there were “[n]o changes from [the] previous year,” Docket
Item 261-1 at 2. When meeting with the Jury Administrator, defense counsel asked
whether that response applied to “other years” as well, and the Jury Administrator was
unsure. See Docket Item 262 at 2. Gendron now requests an answer to his question
about whether there were changes in other years.3 Id. He also wants to know—“in
connection with” his request for a description of “any changes in the construction of the
Master Jury Wheel from previous Master Jury Wheels”—“whether [the vendor] has
information relating to the process he used to create the Master Jury Wheel.” Id.
As for historic data generally, Gendron has argued that information about other
years is relevant to the issue of whether any exclusion of groups from the jury venire
was “systematic.” Docket Item 18 at 3-4. To make a fair cross-section claim under the
JSSA, a defendant must—among other requirements—prove that a group’s
“underrepresentation [in jury venires] is due to systematic exclusion of the group in the
jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979); see also United
States v. LaChance, 788 F.2d 856, 864 (2d Cir. 1986) (“[T]he Duren test governs fair
cross[-]section challenges under both the [JSSA] and the [S]ixth [A]mendment.”).
3 Gendron’s letter does not suggest a time frame for his questions about changes
to procedures. In the meeting with the Jury Administrator, however, defense counsel
requested an answer for six years, aligning with this Court’s order that the Jury
Administrator release six years of AO-12s. See Docket Item 214.
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“[P]ersistent disparities over a significant period of time may ‘indicate that the cause of
the underrepresentation is systematic,’” although the “persistence of disparities by itself”
does not prove systematic exclusion. United States v. Slaughter, 110 F.4th 569, 583
(2d Cir. 2024) (alterations and emphasis omitted) (quoting Duren, 439 U.S. at 366).
Gendron therefore suggests that information about changes to the construction of the
Master Jury Wheel are relevant and necessary to prove any systematic exclusion.
Docket Item 18 at 3-4.
There is little relevant precedent about the disclosure of broad information about
procedural changes. The closest cases that this Court has found were limited to
particular juries and topics. For example, in United States v. Crider, 2021 WL 4226149
(S.D. Cal. Sept. 15, 2021), the district court held that a defendant was “entitled to any
and all information concerning any procedural changes provided to [one g]rand [j]ury as
a result of the [COVID-19] pandemic.” Id. at *9. Indeed, this Court already granted
Gendron’s request for records about changes to procedures “because of the Covid-19
pandemic.” See Docket Item 10-1 at 4; Gendron, 2024 WL 3439502, at *2; Docket Item
214.
Nevertheless, and despite the lack of precedent, this Court will grant Gendron’s
request. Because persistent disparities are relevant to fair cross-section claims, and
because changes over six years may help the parties interpret trends in the six AO-12s
already disclosed, those records are relevant to any argument Gendron might raise
regarding systematic exclusion.
Order: Gendron’s request for additional information is GRANTED. The Jury
Administrator shall provide all records of communications, including written
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communications such as emails and attachments, between the Clerk’s Office and the
vendor that are responsive to Gendron’s request for “[a]ny additional written instructions
as provided by the Court as described in the Jury Selection Plan section titled Method
and Manner of Random Selection.” Docket Item 10-1 at 4; see Docket Item 262 at 2.
To complete this response, Clerk’s Office staff who communicate with the vendor
about the creation of the jury wheel (1) shall review all retained written communications
with the vendor that pertain to the creation of the Master Jury Wheel used for the March
2022 grand jury, and (2) shall disclose those documents that constitute “instructions”
from the court about how that Master Jury Wheel should be created as well as
descriptions and specifications from the vendor about how the Master Jury Wheel was
created. If the instructions were to follow instructions given in earlier years, then to the
extent that the earlier instructions were retained, those records shall be produced as
well. If there are no such documents, the Jury Administrator shall provide a description
of the search that was completed.
Additionally, the Jury Administrator shall answer, to his knowledge, whether, and
if so how, the process of creating the Master Jury Wheel has changed within a six-year
period—that is, beginning four wheels before the wheel used to create the March 2022
grand jury and ending one wheel after that wheel.
Finally, the Jury Administrator shall seek a written response from the vendor that
(1) describes or specifies how the Master Jury Wheel that was used for the March 2022
grand jury was created and (2) states, to the vendor’s knowledge, whether, and if so
how, the process of creating the Master Jury Wheel has changed within the period
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beginning four wheels before the wheel used to create the March 2022 grand jury and
ending one wheel after that wheel.
B. 	Specifications for Merging Sources (pertaining to original request 19)
Gendron’s original motion requested “[a]ny specifications, description, or
statistics related to the merging of source lists and creation of the combined source list
as described in the Jury Selection Plan section titled Sources of Names of Prospective
Jurors.” Docket Item 10-1 at 5. Gendron later submitted 15 follow-up questions for the
Jury Administrator, Docket Item 261 at 2, who said that the vendor would have the
answers, Docket Item 261-1 at 2-3. Gendron now requests “disclosure of responsive
materials under this item including materials in the [vendor’s] custody.” Docket Item 262
at 3.
Order: Gendron’s request for additional information is GRANTED. The Jury
Administrator shall seek written answers from the vendor to the 15 questions about
merging sources, Docket Item 261 at 2, and “[a]ny specifications, description, or
statistics related to the merging of source lists and creation of the combined source list”
that are not otherwise covered by the responses to the 15 questions, Docket Item 10-1
at 5.
C. 	Source Data (pertaining to original request 23)
Gendron’s original motion also requested “[t]he raw source list of data in
electronic form for the Master Jury Wheel used to summon grand jurors in this case as
described in the Jury Selection Plan section titled Sources of Names of Prospective
Jurors (voter registration lists plus supplemental lists).” Docket Item 10-1 at 5-6. The
request specified that the data should not include “information that could be used to
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identify any individual such as Name or Street Address.” Id. at 6. Gendron later
provided several specific questions about each data source, including whether the
original source data was available, the “as of date of the data,” and other questions.
Docket Item 261 at 3-4. The Jury Administrator has explained that the court deletes the
source data after the wheel is created and that he is unsure whether the vendor
retained the source data. See Docket Item 184 at 2; Docket Item 262 at 3.
Now, Gendron asks for “information relating to whether [the vendor] retained any
of the source data.” Docket Item 262 at 3. If the vendor retained such data, Gendron
asks for “the opportunity to inspect it.” Id. He also asks for “communications between
the data sources” and the Jury Administrator and the vendor, “including cover letters,”
because if the vendor deleted the data, “these communications [would] assist us in
reconstructing the source data.” Id.
Several courts have ordered the release of source data with personal identifying
information redacted. See, e.g., United States v. Shader, 472 F. Supp. 3d 1, 5-6
(E.D.N.Y. 2020); United States v. Holmes, 2020 WL 5408163, at *3, *5 (N.D. Cal. Sept.
9, 2020); Crider, 2021 WL 4226149, at *7. This Court agrees that source data “qualifies
as a record used by the Clerk in connection with the jury selection process that may be
necessary for the preparation of a motion challenging the creation of the master wheel.”
See Crider, 2021 WL 4226149, at *7.
Order: Gendron’s request for additional information is GRANTED in part and
DENIED in part without prejudice. The Jury Administrator shall ask the vendor about
whether the vendor has retained source data for DMV data, tax data, voter data,
disability data, and unemployment data for the the Master Jury Wheel used for the
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March 2022 grand jury. See Docket Item 261 at 3-4. If the answer is yes for any
source, the vendor shall share the source data with the Jury Administrator, who must
redact personal identifying information and disclose the source data to the parties. If
the answer is no, the Jury Administrator shall seek written answers to the specific
questions that Gendron asked about each data source from the vendor. See id. To the
extent that Gendron requests communications, that request is denied without prejudice
because the vendor’s responses may directly provide this information and thereby make
this request moot.
D. 	Attendance Data (pertaining to original request 26)
Gendron has requested “[a]ny document or data detailing the attendance record
and reason for absence by date for each grand juror.” Docket Item 10-1 at 6. The Jury
Administrator said that the United States Attorney’s Office “retains the grand jurors[’]
weekly check in sheets”; it therefore appears that the Jury Administrator may not have
this information. Docket Item 184 at 2. But the Jury Administrator also said that he has
two monthly reports related to attendance. See id.
If there is attendance data, the government says that it “is not related to whether
the grand jury . . . was selected at random from a fair cross section of the community.”
Docket Item 17 at 12. The government then argues that unless there is a fact-based
reason for the defense to obtain such information, release of attendance information
would be “a fishing expedition into the inner workings of the grand jury.” Docket Item
212 at 26.
Gendron counters that attendance records could help reveal an internal flaw in
the selection system after the grand jury is selected. Id. at 23-26. Defense counsel
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theorizes that a “representative jury” could be selected, but then court policies, such as
COVID-19 procedures, could cause certain groups to become underrepresented. Id. at
25-26; see Docket Item 10-1 at 3. Counsel also gave an anecdotal example of
prosecutors bringing “a certain type of case” to the grand jury only when one grand juror
was absent. Docket Item 212 at 23-24. But defense counsel did not suggest that either
of these issues applied to Gendron’s case; in fact, counsel said that they were “not
suggesting that we have [any] reason to believe there’s any issue like” the practice of
selectively bringing cases based on grand jurors’ attendance. Id. at 24.
The caselaw about attendance is split. Several district courts have ordered the
release of attendance information with redactions of personal identifying information.
See, e.g., Corbett, 2020 WL 5803243, at *7; Todd, 2020 WL 5981673, at *6; United
States v. Ramirez-Ortiz, 2021 WL 1662441, at *6 (S.D. Cal. Apr. 28, 2021); Crider, 2021
WL 4226149, at *7-8. In Ramirez-Ortiz, for example, the court explained that
“attendance records that are redacted for personal identifying information—such that
[d]efense counsel can track whether a particular juror was excused and substituted but
not discern her actual identity—would not appear to run afoul of the policies underlying
the grand jury secrecy doctrine.” 2021 WL 1662441, at *6. And in Todd, the court
explained that the argument that these records would not advance a fair cross section
challenge is “better raised in opposition, should [the] defendant . . . choose to lodge a
‘fair cross section’ challenge after a review of the grand jury data.” 2020 WL 5981673,
at *2 (footnote omitted).
Other district courts have denied the release of attendance records. See, e.g.,
United States v. Braxton, 2020 WL 6083649, at *4 (E.D.N.Y. Oct. 15, 2020); United
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States v. Alshahhi, 2022 WL 2239624, at *23 (E.D.N.Y. June 22, 2022); United States v.
McClellon, 2023 WL 9002855, at *5 (W.D. Wash. Dec. 28, 2023). In Alshahhi, the court
concluded that “attendance records . . . are not relevant to the selection of the grand
jurors.” 2022 WL 2239624, at *23. In Braxton, the court cited United States v.
Jackman, 46 F.3d 1240, (2d Cir. 1995), which said that “the Sixth Amendment
guarantees the opportunity for a representative jury venire, not a representative venire
itself.” Id. at 1244. According to the Braxton court, “it should be obvious that once a
grand jury is empaneled, the attendance of grand jurors is . . . irrelevant.” 2020 WL
6083649, at *4.
After carefully considering this close issue, this Court agrees with the courts that
have ordered production. Because systematic issues after a grand jury is selected
might give rise to a fair cross-section challenge, the Jury Administrator shall produce
attendance data with personal identifying information redacted. See Ramirez-Ortiz,
2021 WL 1662441, at *6. If Gendron raises a JSSA challenge based on attendance
data, the government may raise its opposition as to whether this information proves a
fair cross-section claim at that time. See Todd, 2020 WL 5981673, at *2.
Order: Gendron’s request for additional information is GRANTED. The Jury
Administrator shall produce attendance data for the entire length of the March 2022
grand jury to the extent that the Court retains such records. The Jury Administrator
shall provide the attendance reports for the full period of the March 2022 grand jury as
well. For all attendance records, personal identifying information shall be redacted.
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E. 	Rochester Records (pertaining to original requests 8, 10, 20, and 21)
Gendron received records for the Buffalo division for four requests, but he seeks
these records for the Rochester division as well. He says that information from
Rochester is relevant because he believes that the district has a master list from which
each division’s list is created and that seeing the Rochester data could help uncover
any issues that occur “at the splitting of the two lists” such as “problems with overlap
where some jurors that should fall within the jurisdiction of one division end up in
another division.” Docket Item 212 at 10.
ORDER: Gendron’s request for additional information is CONDITIONALLY
GRANTED. The Jury Administrator shall determine whether it is correct that the
records begin from one master list and shall request information from the vendor, if
necessary, to make that determination. If it is correct that the records begin from one
master list, then the records responsive to requests 8, 10, 20, and 21 for Rochester
shall be produced without further order from the Court. If the records do not originate
from one master list, there is no apparent relevance to these records, and the request is
denied.
F. 	Public Records (pertaining to original request 27)
Request 27 is a catch-all request for additional documents. See Docket Item 10-
1 at 6. Gendron requested “[a]ny records described in the Jury Selection Plan section
titled Records to be Maintained by the Clerk and made Public upon Request that are not
included in any of the preceding items requested.” Docket Item 10-1 at 6. According to
the Jury Selection Plan, the Clerk of Court must “retain all jury records and papers
comp[il]ed and maintained by the Clerk of Court, including . . . [j]ury memos from the
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Administrative Office and internal memos.” Jury Plan, supra at 8. In response, the Jury
Administrator said he has “[e]mails with chambers about the details of Grand Jury
selection.” Docket Item 261-1 at 6. Gendron now requests six years of “emails with
chambers about the details of grand jury selection.”4 Docket Item 262 at 3.
This Court appreciates the Jury Administrator’s thorough responses to Gendron’s
questions. But the Jury Plan’s reference to “[j]ury memos from the Administrative Office
and internal memos” is not so broad as to include all emails between the Jury
Administrator and chambers about “the details of grand jury selection.” On its face, the
words “internal memos” do not include emails, nor does this Court think that the drafters
of the Jury Plan intended such an expansive reading. Gendron did not identify, nor has
this Court found, an example of a court granting disclosure like this. What is more,
considering this Court’s grant or partial grant of nearly every other request that Gendron
has made, it is hard to fathom how these emails are necessary to a JSSA motion.
Order: Gendron’s request for additional information is DENIED except to the
extent that an email includes a memo addressing the details of grand jury selection.
CONCLUSION
The record requests in Docket Item 10 and 262 are GRANTED IN PART and
DENIED IN PART for the reasons explained above.
The documents produced pursuant to this decision and order are subject to the
amended protective order governing jury records. See Docket Item 213.
4 At the meeting with the Jury Administrator, the government requested the
opportunity to brief this issue while defense counsel said that the Court should decide it
without briefing.
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The Jury Administrator shall provide this Court with the records listed above by
April 2, 2025. When it receives the records, this Court will file them under seal and give
defense counsel and the government access to them.
As soon as possible, and no later than two weeks after they receive the records,
defense counsel shall (1) notify this Court if they have any pending or follow-up JSSA
record requests and (2) confer with the government and provide this Court with joint
proposed briefing deadlines for any JSSA grand jury motion.
SO ORDERED.
Dated: 	March 12, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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