US v. Jose Colon, No. 22-4187 (4th Cir. 2023)
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A superseding indictment charged two defendants, husband and wife, with conspiracy to distribute and possession with intent to distribute one kilogram or more of heroin and five kilograms or more of cocaine and conspiracy to commit money laundering. To address safety concerns, prior to their trial, the district court ordered Defendants to file a joint position as to whether they were vaccinated against COVID-19 or intended to be by the start of the trial. The district court further ordered the government and Defendants to inform the court as to whether they would agree to strike unvaccinated individuals from the jury. Defendants responded that they were not vaccinated and did not intend to be vaccinated. However, they agreed they would test for COVID-19 and provide the test results to the court. Defendants objected to the court’s suggestion of striking unvaccinated jurors for cause. At issue on appeal is whether a district court’s sua sponte decision to strike unvaccinated prospective jurors for cause from a properly assembled venire during the COVID-19 pandemic violates the Sixth Amendment’s fair-cross-section requirement.
The Fourth Circuit affirmed, holding that Defendants do not have a Sixth Amendment fair-cross-section challenge. The court explained that the fair-cross-section requirement applies to jury venires, not petit juries. And the district court’s decision to strike unvaccinated jurors based on their perceived inability to serve without creating unnecessary safety risks affected the composition of the petit jury for this particular case, not the individuals represented in the venire from which the petit jury is selected.
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