United States v. Paitsel
This text of United States v. Paitsel (United States v. Paitsel) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 19-156 (CKK) BRIAN WINSTON BAILEY & DAVID PAITSEL, Defendants.
MEMORANDUM OPINION & ORDER (August 20, 2021)
For the reasons set forth herein, the Court will ORDER that during the selection of regular
jurors, Mr. Brian Bailey and Mr. David Paitsel may exercise one peremptory challenge each and
ten peremptory challenges jointly, for a total of twelve peremptory challenges, while the
government may exercise six peremptory challenges. The Court will also ORDER that the
government and the defense shall each have one additional peremptory challenge to use during the
selection of alternate jurors in this case.
I. BACKGROUND
On May 14, 2019, a grand jury returned a five-count indictment against Mr. Brian Bailey
and Mr. David Paitsel. Count I charges Mr. Bailey with a criminal conspiracy, in violation of 18
U.S.C. § 371. Count II charges Mr. Bailey with bribery, in violation of 18 U.S.C. § 201(b)(1)(C).
Count III charges Mr. Bailey and Mr. Paitsel together with a criminal conspiracy, in violation of
18 U.S.C. § 371. Count IV charges Mr. Bailey with bribery, in violation of 18 U.S.C. §
201(b)(1)(C). And Count V charges Mr. Paitsel with bribery, in violation of 18 U.S.C. §
201(b)(2)(C). Mr. Bailey and Mr. Paitsel are scheduled to begin a co-defendant trial on these
charges on September 7, 2021.
1 On August 16, 2021, the Court held a status hearing with Mr. Bailey, Mr. Paitsel, and their
respective counsel to discuss pretrial procedures. During that hearing, the Court addressed the
topic of peremptory challenges. Defense counsel for Mr. Bailey requested that the Court grant
each co-defendant a total of ten peremptory challenges during the selection of regular jurors.
Following the status hearing, the Court took this request under advisement. The Court now
addresses the question of peremptory challenges in this Memorandum Opinion & Order.
II. DISCUSSION
“[T]he obligation to impanel an impartial jury lies in the first instance with the trial judge.”
United States v. West, 458 F.3d 1, 6 (D.C. Cir. 2006) (quoting Rosales–Lopez v. United States, 451
U.S. 182, 188 (1981)). Consequently, “federal judges have been accorded ample discretion in
determining how best to conduct the voir dire.” Id. One component of voir dire is the ability of
the government and the defense to exercise peremptory challenges to potential jurors. But “[w]hile
‘the peremptory challenge is part of our common-law heritage,’ it is ‘not of federal constitutional
dimension.’” Id. at 9 (quoting United States v. Martinez–Salazar, 528 U.S. 304, 311 (2000)).
Instead, in federal cases the right to a peremptory challenge is “a creature of Rule 24(b), which
specifies the number of peremptories to which each side is entitled.” Id.
Federal Rule of Criminal Procedure 24(b)(2) provides that in a non-capital, felony case,
“[t]he government has 6 peremptory challenges and the defendant or defendants jointly have 10
peremptory challenges.” Additionally, Rule 24(b) states that “[t]he court may allow additional
peremptory challenges to multiple defendants, and may allow the defendants to exercise those
challenges separately or jointly.” Fed. R. Crim. P. 24(b) (emphasis added). This precatory
language within Rule 24(b) means that “[i]n multiple defendant cases, the award of additional
challenges is permissive rather than mandatory, and rests in the trial judge’s sound discretion.”
2 United States v. Haldeman, 559 F.2d 31, 79 (D.C. Cir. 1976). Correspondingly, “[a] defendant
may not demand, as a matter of right, additional peremptory challenges once his original allotment
has been expended.” United States v. Smith, 891 F.2d 935, 938 (D.C. Cir. 1989); see also United
States v. Pineda Castro, 795 F. App’x 635, 648 (11th Cir. 2019) (“[T]he district court is not
required to give the defense side any extra peremptory challenges in multiple defendant trials.”);
United States v. Delgado, 350 F.3d 520, 523 n.2 (6th Cir. 2003) (“Rule 24(b)(2) affords the
government six peremptory challenges and the defendant or defendants 10 peremptory challenges
in felony cases. District courts may allow additional peremptory challenges to multiple
defendants, but the court did not do so in this case.”).
In United States v. Mitchell, for example, Judge John Sirica considered the application of
Rule 24(b) to a felony case involving five co-defendants. 384 F. Supp. 564, 565–66 (D.D.C. 1974).
There, the co-defendants requested five peremptory challenges each, for a total of twenty-five
peremptory challenges overall. But in response, Judge Sirica determined that it would be more
equitable to afford the defense a total of only fifteen peremptory challenges, so as not to
disproportionately outweigh the six peremptory challenges given to the government under Rule
24(b). Specifically, Judge Sirica provided the five co-defendants with one peremptory challenge
each and ten peremptory challenges to exercise jointly. On appeal, the D.C. Circuit upheld Judge
Sirica’s allocation of peremptory strikes under Rule 24(b). The D.C. Circuit confirmed that “[i]n
multiple defendant cases the award of additional challenges is permissive rather than mandatory,
and rests in the trial judge’s sound discretion,” and found Judge Sirica’s formulation to be
eminently reasonable under Rule 24(b). Haldeman, 559 F.2d at 79–80.
In the present case, the Court will follow Judge Sirica’s application of Rule 24(b) in
Mitchell, a formulation which bears the imprimatur of the D.C. Circuit. Accordingly, the Court
3 will afford Mr. Bailey and Mr. Paitsel one peremptory challenge each, in addition to ten
peremptory challenges which they shall exercise jointly. This provides the defense with a total of
twelve peremptory challenges, more than they are otherwise guaranteed by statute. See Fed. R.
Crim. P. 24(b)(2). In turn, the government may exercise up to six peremptory challenges, in
accordance with the plain language of Rule 24(b)(2). Altogether, the Court finds that this
allocation of peremptory challenges comports with Rule 24(b) and provides a fair and reasonable
number of peremptory challenges to the defense, given the charges in their indictment.
As a final matter, the Court anticipates impaneling two alternate jurors during Mr. Bailey
and Mr. Paitsel’s trial. See Fed. R. Crim. P. 24(c)(1). Therefore, in accordance with Rule
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