PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4187

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

JOSE CRUZ COLON, 

 Defendant – Appellant.

No. 22-4192

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

NASTASSJA LOPEZ-ALVARADO, 

 Defendant – Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at 

Newport News. David J. Novak, District Judge. (4:20-cr-00069-DJN-LRL-1; 4:20-cr00069-DJN-LRL-2).

Argued: January 27, 2023 Decided: April 11, 2023

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Before AGEE, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge 

Agee and Judge Rushing joined. 

ARGUED: Sicilia Englert, LAW OFFICE OF SICILIA C. ENGLERT, LLC, Alexandria, 

Virginia; Fernando Groene, FERNANDO GROENE, PC, Williamsburg, Virginia, for 

Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, 

Richmond, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, 

Richmond, Virginia, Julie D. Podlesni, Assistant United States Attorney, Eric M. Hurt, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Newport News, Virginia, for Appellee.

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QUATTLEBAUM, Circuit Judge:

As we all remember, the COVID-19 pandemic disrupted many of our national 

activities. It certainly disrupted the operation of federal and state judicial systems. Even so, 

trial judges around the country sought to adopt procedures that balanced the need to keep 

the wheels of justice moving with concerns about the safety of the parties, the witnesses, 

the jurors and court personnel. This consolidated appeal involves one such procedure.

The question presented here 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. It 

does not. 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.

1 So, we affirm. 

1 Our cases, as well other circuits, have used the terms “jury pool,” “jury venire,” 

“jury panel” and “petit jury” interchangeably. In this opinion, we refer to prospective jurors 

chosen for jury selection as the jury venire and the jurors empaneled as the petit jury. See 

Black’s Law Dictionary, Venire (11th ed. 2019) (“A panel of persons selected for jury duty 

and from among whom the jurors are to be chosen.”); id., Petit Jury (“A jury summoned 

and empaneled in the trial of a specific case.”).

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I.

A superseding indictment charged Jose Cruz Colon and Natassja Lopez-Alvarado, 

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, in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(A) and 846, and conspiracy to commit money laundering, in violation 

of 18 U.S.C. § 1956(h). J.A. 25. Their trial was scheduled for September 2021, when the 

Delta variant of COVID-19 had emerged as a safety risk. 

To address safety concerns, prior to their trial, the district court ordered the 

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. J.A. 57. The district court further ordered the 

government and the defendants to inform the court as to whether they would agree to strike 

unvaccinated individuals from the jury. J.A. 57. The defendants responded that they were 

not vaccinated and did not intend to be vaccinated by the start of the trial due to “sincerely 

held beliefs.” J.A. 58. However, they agreed that prior to and during trial, they would test 

for COVID-19 and provide the test results to the court. J.A. 57. The defendants objected to 

the court’s suggestion of striking unvaccinated jurors for cause. J.A. 59. The government 

took no position on striking unvaccinated jurors. J.A. 61.

The district court directed the clerk of court to send a jury questionnaire to a venire

of 110 prospective jurors that the parties and the court would use to strike jurors for cause

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without their physical presence.

2 J.A. 10, ECF No. 59. The district court’s order provided 

that “[d]ue to the COVID-19 Delta variant causing a clear upward trend in COVID-19 

cases, hospitalizations, and percent positivity across Virginia and the Eastern District of 

Virginia, the Court will again utilize a juror questionnaire to reduce the likelihood of 

requiring in-person visit to our Courthouse for a juror whose service may be deferred to a 

later date based on current circumstances.” Id. In addition to background and case specific 

questions, the questionnaire included eight questions regarding COVID-19, including the 

prospective jurors’ vaccination status, potential exposure to COVID-19 through travel or 

work and any risk factors for serious complications from COVID-19. J.A. 46–56. Cruz

Colon did not object to any of the questions in the proposed questionnaire. J.A. 36. LopezAlvarado objected to two questions unrelated to the juror’s vaccination status. J.A. 39–40. 

2 Pursuant to the Jury Service and Selection Act of 1968, as amended, 28 

U.S.C. § 1861, et seq., the Eastern District of Virginia has developed a plan for the random 

selection of grand and petit jurors. Plan for the Random Selection of Grand and Petit Jurors

(E.D. Va. Feb. 6, 2003). Under that plan, prospective jurors are to be drawn at random from 

the list of registered voters in the district. Id. at 3. The clerk is then directed to maintain a 

“master jury wheel” of the names of those individuals randomly selected. Id. At that point, 

the clerk sends a “juror qualification questionnaire” to every person whose name is 

selected. Id. Individuals not disqualified, exempted, excused or excluded under 28 

U.S.C. §§ 1865, 1866, are then placed into a “qualified jury wheel.” Id. at 6. When ordered 

by the court, “the clerk shall draw from the qualified jury wheel the names of as many 

persons as may be required for assignment to grand and petit jury panels for each division.” 

Id. at 7. It is not clear from the record before us if the 110 prospective jurors represent the 

first list of names drawn from the registered voters or if, from an initial list, the number of 

prospective jurors was reduced to 110. Either way, for purposes of this appeal, we will 

refer to the list of 110 potential jurors—which included unvaccinated individuals, as the 

venire.

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The district court’s order directed the parties to meet and confer before the final 

pretrial conference “to determine whether the parties can agree on which prospective jurors 

should be struck for cause based solely upon the responses to the questionnaires.” J.A.10, 

ECF No. 59. Any prospective juror struck for cause at that time would not be required to 

appear in person for jury selection. Id.

During the pretrial conference, the district court struck jurors for cause based on a 

number of reasons. For example, it struck jurors for typical reasons such as the burden of 

serving on a single parent with children. J.A. 85, 86. But the court also struck all potential 

jurors who indicated that they were not vaccinated. Four of the unvaccinated individuals 

had alternate reasons that justified their being stricken: two unvaccinated jurors had travel 

plans close to the time of trial which, the court felt, carried a greater risk of exposure to 

COVID-19, J.A. 86–87, J.A. 92; one unvaccinated juror had been diagnosed with COVID19 approximately four weeks before the start of the trial, J.A. 90; and one unvaccinated 

juror had diabetes and claimed that he would be unable to stay awake during trial, J.A. 90–

91. The defendants requested that the two jurors with travel plans be stricken and did not 

object to the other two being stricken. After addressing the reasons for striking those 

prospective jurors, the district court noted that there was “only one person [] left in the 

panel who’s not vaccinated.” J.A. 92–93. Recognizing that the defendants had previously 

objected to striking jurors solely based on their vaccination status, the district court gave 

them an opportunity to address the court on that issue. J.A. 93.

Defense counsel explained that “[t]he thought process is that it may [not] include a 

representative sample of the jury. For instance, in this case, our clients are not vaccinated.” 

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Id. The district court responded that the jury would not know whether the defendants were 

vaccinated. Id. Counsel then asserted that the issue was not whether the jurors were aware 

of their vaccination status, but “whether there is a jury of their peers.” J.A. 93. Construing 

the defendants’ argument as raising a Batson3 challenge, the court found that “being 

vaccinated is not a protected class.” Id. In explaining his reasoning for striking 

unvaccinated jurors, the district court also noted the risk of contracting COVID-19 with 

the rise of the Delta variant and with jurors removing masks while eating lunch. J.A. 94.

Counsel clarified that the defendants were not raising a Batson challenge. Instead, 

he argued that striking unvaccinated individuals excluded a section of potential jurors. J.A. 

96. “I’m saying it excludes a section of the potential jurors. Furthermore, you know, 

COVID – you’re going to make – you’ve made your ruling, but COVID attacks both the 

vaccinated and the unvaccinated. Furthermore, we have 105 plus a few people that didn’t 

submit – 100 questionnaires, more or less. We don’t know whether any of those people 

who are vaccinated are living with people or having interaction or working with or eating 

with or driving to work with people that are not vaccinated.” J.A. 96. The district court 

responded by citing statistics showing that someone who is not vaccinated is 11 times more 

likely to die from COVID than someone who has been vaccinated. J.A. 97. Ultimately, the 

3 Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the discriminatory use of 

peremptory challenges to exclude potential jurors on the basis of race is unconstitutional); 

see also Rivera v. Illinois, 556 U.S. 148, 153 (2009) (“[P]arties are constitutionally 

prohibited from exercising peremptory challenges to exclude jurors on the basis of race, 

ethnicity, or sex.”).

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district court overruled the objection and issued an order striking jurors for cause as 

determined at the pretrial conference. J.A. 140. 

The district court then ordered the clerk of court to randomly divide the remaining 

47 prospective jurors into three panels of 14 and one panel of 5, to appear for jury selection. 

J.A. 140. During the in-person voir dire, the court discovered another juror who was 

unvaccinated. J.A. 200–01. Over defense objection, the court struck the juror for cause, 

citing a health risk to the juror and to everyone in court. Id. The case then proceeded to 

trial. Ultimately, the jury convicted Cruz Colon of conspiracy to possess with intent to 

distribute one kilogram or more of heroin and five kilograms or more of cocaine and of 

conspiracy to commit money laundering, the two charges in the superseding indictment. It 

convicted Lopez-Alvarado of conspiracy to distribute and possession with intent to 

distribute five kilograms or more of cocaine and conspiracy to commit money laundering.4

The defendants timely appealed arguing that the district court violated the Sixth 

Amendment’s fair-cross-section guarantee by excluding unvaccinated jurors.5 We have 

jurisdiction under 28 U.S.C. § 1291.

4 At the conclusion of the government’s evidence, Cruz Colon and Lopez-Alvarado 

moved for judgment of acquittal on both counts. The district court denied those motions. 

However, as to Lopez-Alvarado, the court concluded that the government had not proven 

that Lopez-Alvarado was involved in a conspiracy to traffic heroin and dismissed that 

portion of count one against her. J.A. 587–92, J.A. 661.

5 In addition, Lopez-Alvarado contends that the evidence was insufficient to support 

a jury finding that five kilograms or more of cocaine was reasonably foreseeable “as a 

necessary or natural consequence of the unlawful agreement.” United States v. Denton, 944 

F.3d, 170, 179 (4th Cir. 2019) (cleaned up). We review challenges to the sufficiency of the 

evidence de novo. United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007). In doing so, 

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II.

“Because a constitutional question is a legal issue, we review the district court’s 

ruling de novo.” United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th 

Cir. 2018). The Sixth Amendment provides, in relevant part, that “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial 

jury of the State and district wherein the crime shall have been committed . . . .” U.S. Const. 

amend. VI. This amendment has been interpreted as requiring a jury venire composed of a 

“fair cross section of the community . . . .” Taylor v. Louisiana, 419 U.S. 522, 526 (1975); 

id. at 530 (“Restricting jury service to only special groups or excluding identifiable 

segments playing major roles in the community cannot be squared with the constitutional 

concept of jury trial.”).

“our role is limited to considering whether there is substantial evidence, taking the view 

most favorable to the Government, to support” the conviction. United States v. Beidler, 

110 F.3d 1064, 1067 (4th Cir. 1997) (internal citation and quotation marks omitted). There 

is no dispute that the conspiracy involved “roughly” ten kilograms of cocaine provided by 

the defendants. J.A. 434–35. In addition, the evidence included testimony from a coconspirator that he went to the defendants’ home and paid $66,000 for two kilograms of 

cocaine. J.A. 387, 392–94. Lopez-Alvarado was present and counted the money to ensure 

that it was the correct amount. J.A. 395. The co-conspirator also testified when he owed 

the defendants $22,000 for cocaine they had previously provided to him, Lopez-Alvarado 

answered the door when he went to deliver it and accepted the payment. J.A. 405, 413. He 

also testified that during discussions with Cruz Colon and Lopez-Alvarado about the 

quality and price of the cocaine, Lopez-Alvarado was an active participant in these 

conversations and “told [them] the correct number.” J.A. 419–21. He further explained that 

there was no effort on the part of Cruz Colon to hide any of the drug activity from LopezAlvarado. J.A. 437. Finally, during the investigation, agents observed Lopez-Alvarado 

mail packages with falsified names and fictitious return addresses. J.A. 501, 526–29. This 

is sufficient evidence from which a jury could find that it was reasonably foreseeable to 

Lopez-Alvarado that the conspiracy would involve at least five kilograms of cocaine.

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The defendants argue that the district court’s use of for cause strikes excluded 

unvaccinated jurors in violation of their Sixth Amendment right to have their case heard 

before a “fair cross section of the community.” Op. Br. 19. And they contend that they 

established a prima facie case of a Sixth Amendment violation in the proceedings below. 

Op. Br. 21.

“In order to establish a prima facie violation of the fair-cross-section requirement, 

the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group 

in the community; (2) that the representation of this group in venires from which juries are 

selected is not fair and reasonable in relation to the number of such persons in the 

community; and (3) that this underrepresentation is due to systematic exclusion of the 

group in the jury-selection process.” Duren v. Mississippi, 439 U.S. 357, 364 (1979).

But before we get to the elements of a prima facie case, we must address a threshold 

issue—does the Sixth Amendment’s fair-cross-section requirement even apply to the 

district court’s decision to strike the unvaccinated potential jurors for cause related to 

COVID-19 safety risks? We hold that it does not. 

First, the district court’s strikes took place after the venire was assembled. Notably, 

the Supreme Court “ha[s] never invoked the fair-cross-section principle to invalidate the 

use of either for-cause or peremptory challenges to prospective jurors, or to require petit 

juries, as opposed to jury panels or venires, to reflect the composition of the community at 

large.” Lockhart v. McCree, 476 U.S, 162, 173 (1986) (citations omitted). Lockhart

explained that “any . . . group defined solely in terms of shared attitudes that render 

members of the group unable to serve as jurors in a particular case, may be excluded from 

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jury service without contravening any of the basic objectives of the fair-cross-section 

requirement.” 476 U.S. at 176–77. And even prior to Lockhart, the Court had rejected the 

reasoning behind the defendants’ argument. See Taylor, 419 U.S. at 538 (The Court 

“emphasized that in holding that petit juries must be drawn from a source fairly 

representative of the community we impose no requirement that petit juries actually chosen 

must mirror the community and reflect the various distinctive groups in the population. 

Defendants are not entitled to a jury of any particular composition, but the jury wheels, 

pools of names, panels, or venires from which juries are drawn must not systematically 

exclude distinctive groups in the community . . . .”) (internal citations omitted); Duren, 439 

U.S. at 364 n.20 (“[T]his requirement does not mean that petit juries actually chosen must 

mirror the community.”). But if there was any lingering question on whether the fair-crosssection requirement might apply to petit juries, Holland v. Illinois, 493 U.S. 474 (1990)

answered it. There, the Supreme Court rejected the petitioner’s attempt to extend “the faircross-section requirement from the venire to the petit jury.” Id. at 477–88.

Here, the venire was chosen from voter registration lists, a practice we expressly 

approved of in United States v. Cecil, 836 F.2d 1431 (4th Cir. 1988). The voter registration 

list used to create the master jury wheel included the unvaccinated individuals, as did the 

qualified jury wheel and the list of prospective jurors used to assemble the jury venire.

But in fairness, based on the ongoing pandemic, the district court’s categorical 

strikes of unvaccinated jurors took place in a somewhat unusual process. In order to limit 

the number of individuals in the courtroom, the district court struck the jurors at a pre-trial 

conference after the venire was assembled but before the clerk of court assembled panels 

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from which the parties conducted voir dire. That, however, does not mean the “limited 

scope” of the fair-cross-section requirement applies to the use of strikes for cause based on 

vaccination status. Lockhart, 476 U.S. at 174. Lockhart—where the Supreme Court held 

that categorically striking anti-death penalty jurors for cause in a capital case did not violate 

the Sixth Amendment—teaches that the fair-cross-section requirement applies only where 

groups are excluded “for reasons completely unrelated to the ability of members of the 

group to serve as jurors in a particular case.” Lockhart, 476 U.S at 175.

6 The Court 

explained that the categorical exclusion of such jurors based on their views on the death 

penalty did not raise the possibility of skewing the jury to the detriment of the defendant, 

did not exclude the group based on immutable characteristics like race, gender or ethnic 

background as opposed to their ability to serve and did not deprive historically 

disadvantaged groups of their right to serve. Id.

The same is true here. While the district court’s strikes of unvaccinated jurors were 

based on COVID-19 safety risks rather than strongly held views about the subject matter 

of the case, those safety reasons related to the potential jurors’ ability to serve in this

particular case.7 More specifically, the court felt that seating unvaccinated jurors in the 

6 Lockhart cited to the Supreme Court’s prior cases in Peters v. Kiff, 407 U.S. 493

(1972) (African Americans); Duren, 439 U.S. 357 (women); Taylor, 419 U.S. 522 (same); 

and Castaneda v. Partida, 430 U.S. 482 (1977) (Mexican Americans) as examples of 

“distinctive groups” that had been unconstitutionally excluded from jury service. 476 U.S. 

at 175.

7 While not addressed by the parties before the district court, the Jury Service and 

Selection Act expressly authorizes district courts to exclude potential jurors on grounds 

that their service “would be likely to disrupt the proceedings,” 28 U.S.C. § 1866(c)(2), or 

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midst of a global pandemic unnecessarily jeopardized the safety of the parties, the 

witnesses, the jurors and court personnel. Consistent with that, it also struck potential jurors 

for cause for reasons unrelated to COVID. Those strikes were based on the ability of the 

potential jurors to serve in this particular case. As a result, the for-cause strikes affected 

the petit jury, not the venire. Thus, the Sixth Amendment’s fair-cross-section requirement 

does not apply.

To be clear, our holding does not mean that the defendants have no recourse to 

challenge for cause strikes in circumstances like those presented here. Claims of 

discriminatory strikes are evaluated under Batson,

8 and the defendants may argue that the 

district court’s efforts to manage the trial proceedings, including from risks posed by 

COVID, abused its discretion. But, under these circumstances, the defendants do not have 

a Sixth Amendment fair-cross-section challenge. Thus, we need not address whether the 

defendants met the prima facia requirements for such a claim.

that it “would be likely to . . . adversely affect the integrity of jury deliberations.” Id.

§ 1866(c)(5). Further, the Supreme Court has recognized the inherent power of the courts 

“to manage their own affairs so as to achieve the orderly and expeditious disposition of 

cases,” so long as the exercise of that power represents “a reasonable response to the 

problems and needs confronting the court’s fair administration of justice.” Dietz v. Bouldin, 

579 U.S. 40, 45 (2016).

8 The defendants disclaimed a Batson challenge in advancing their argument below. 

J.A. 96.

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III.

For these reasons, the judgment of the district court is

AFFIRMED.

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