Opposition Brief — Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez, Petitioners v. United States

No. 25-166

In the Supreme Court of the United States

JOSE JOYA PARADA, OSCAR ARMANDO SORTO ROMERO,

MILTON PORTILLO RODRIGUEZ, AND JUAN CARLOS

SANDOVAL RODRIGUEZ, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

JENNY C. ELLICKSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether this Court should overrule Willams v. Florida, 399 U.S. 78 (1970), and hold that the Sixth Amendment precludes a district court from invoking the procedure authorized by Federal Rule of Criminal Procedure 23(b)(3), which allows an 11-person jury to return

a verdict when the court dismissed the 12th juror for

good cause during deliberations.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (D. Md.):

Martinez-Aguilar v. United States, No. 21-cv-1957

(Dec. 27, 2021)

Mendez-Soto v. United States, No. 23-cv-732 (Mar.

15, 2023)

Sibrian Garcia v. United States, No. 24-cv-2697

(Apr. 3, 2025)

Gomez-Jimenez v. United States, No. 25-cv-101

(Aug. 5, 2025)

United States Court of Appeals (4th Cir.):

United States v. Martinez-Aguilar, No. 19-4455

(Mar. 18, 2020)

United States v. Brizuela, No. 21-4134 (Jan. 13,

2022)

United States v. Gomez-Jimenez, No. 21-4254 (Dec.

29, 2022)

United States v. Castillo, No. 21-4564 (Feb. 22, 2023)

United States v. Gomez-Jimenez, No. 25-6710 (Aug.

19, 2025)

United States v. Sibrian Garcia, No. 25-6240 (Sept.

3, 2025)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Apodaca v. Oregon, 406 U.S. 404 (1972).............................. 15

Ballew v. Georgia, 435 U.S. 223 (1978) .......................... 14, 15

Burch v. Louisiana, 441 U.S. 130 (1979) ...................... 14, 15

Cunningham v. Florida, 144 S. Ct. 1287 (2024) ................... 7

Edwards v. Vannoy, 593 U.S. 255 (2021) ............................ 15

Khorrami v. Arizona, 143 S. Ct. 22 (2022) ........................... 7

Logan v. Florida, 552 U.S. 1189 (2008) ................................. 7

McDonald v. City of Chicago, 564 U.S. 742 (2010) .............. 7

Phillips v. Florida, 142 S. Ct. 721 (2021) .............................. 7

Ramos v. Louisiana, 590 U.S. 83 (2020) ............. 8, 12, 15, 16

Rassmussen v. United States, 197 U.S. 516 (1905) ............ 11

Thompson v. Utah, 170 U.S. 343 (1898) .............................. 11

Williams v. Florida, 399 U.S. 78 (1970) ........ 4, 7-9, 11-14, 16

Constitution, statutes, and rules:

U.S. Const. Amend. VI.............................. 4, 7-9, 11, 12, 14-17

18 U.S.C. 1111 ...................................................................... 1, 2

18 U.S.C. 1959(a) ..................................................................... 2

18 U.S.C. 1959(a)(1) ................................................................. 2

18 U.S.C. 1959(a)(5) ................................................................. 2

18 U.S.C. 1962(c) ...................................................................... 2

18 U.S.C. 1962(d) ................................................................. 1, 2

(III)

IV

Statute and rules—Continued:

Page

18 U.S.C. 1963 ...................................................................... 1, 2

Fed. R. Crim. P.:

Rule 23(b) ........................................................................... 6

Rule 23(b)(3) .............................................................. 4, 5, 8

Rule 23 advisory committee’s note

(1983 Amendments) ..................................................... 4

Miscellaneous:

2 Matthew Hale, Historia Placitorum Coronae:

The History of the Pleas of the Crown (1736) .................. 10

Giles Jacob, A New Law-Dictionary:

(1st ed. 1729) .............................................................. 10, 11

(10th ed. 1782) .................................................................. 10

1 Samuel Johnson, A Dictionary of the

English Language (1773)................................................... 11

1 James Bradley Thayer, A Preliminary Treatise

on Evidence at the Common Law (1896) ..................... 9, 12

In the Supreme Court of the United States

No. 25-166

JOSE JOYA PARADA, OSCAR ARMANDO SORTO ROMERO,

MILTON PORTILLO RODRIGUEZ, AND JUAN CARLOS

SANDOVAL RODRIGUEZ, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-35a)

is reported at 134 F.4th 188.

JURISDICTION

The judgment of the court of appeals was entered on

April 10, 2025. On July 2, 2025, the Chief Justice extended the time within which to file a petition for a writ

of certiorari to and including August 8, 2025, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Maryland, petitioners were

convicted of racketeering conspiracy, in violation of 18

U.S.C. 1111, 1962(d), and 1963; racketeering, in violation

(1)

2

of 18 U.S.C. 1111, 1962(c), and 1963; attempted murder

in aid of racketeering, in violation of 18 U.S.C. 1959(a);

and assault with a dangerous weapon in aid of racketeering, resulting in serious bodily injury, in violation of

18 U.S.C. 1959(a). 22-4262 C.A. App. (C.A. App.) 150151, 158-159, 168, 177-178. Petitioners Sorto Romero,

Portillo Rodriguez, and Sandoval Rodriguez were also

convicted of murder in aid of racketeering, in violation

of 18 U.S.C. 1959(a)(1); and conspiring to commit murder in aid of racketeering, in violation of 18 U.S.C.

1959(a)(5). C.A. App. 158-159, 169, 177-178. The district

court sentenced petitioner Parada to 600 months of imprisonment, to be followed by three years of supervised

release, id. at 152-153; and sentenced the other three

petitioners to life imprisonment, to be followed by three

years of supervised release, id. at 160-162, 170-171, 179180. The court of appeals affirmed. Pet. App. 1a-35a.

1. Petitioners were members of the transnational

criminal street gang La Mara Salvatrucha, commonly

referred to as MS-13. C.A. App. 1629. From 2015 to

2017, petitioners engaged in drug trafficking, extortion,

and acts of violence against members and associates of

rival gangs in an effort to increase MS-13’s power in the

Frederick County, Montgomery County, and Anne Arundel County areas of Maryland. Id. at 1629-1630.

In 2017, petitioners personally participated in four

murders of suspected associates of rival gangs. C.A.

App. 1630-1631. In March 2017, Portillo Rodriguez and

Sandoval Rodriguez lured a 17-year-old boy to a park,

where they, Parada, and other MS-13 members stabbed

the victim more than 100 times, dismembered him, and

removed his heart. Ibid. Two days later, Parada and

other MS-13 members killed a second victim with a machete, and Sorto Romero assisted with that murder by

3

driving the victim to the wooded area where he was

killed. Id. at 1631-1632. In June 2017, Portillo Rodriguez and Sandoval Rodriguez joined other MS-13 members in slashing and dismembering a 21-year-old woman

with a machete. Id. at 1632. And in August 2017, Portillo Rodriguez and Sorto Romero participated in the

murder of a fourth victim by repeatedly striking the victim with a machete. Id. at 1633.

2. Petitioners were indicted on various racketeering

charges based on their MS-13 activities, and they proceeded to trial in October 2021. Pet. App. 5a-6a. Following four days of jury selection, the district court empaneled a 12-member jury and six alternates. Id. at 6a.

The trial lasted for 34 days (excluding deliberations)

over the next three months. Id. at 14a. The length of

the trial stemmed, in part, from the COVID-19 protocols that the court was employing at the time. Id. at 14a

& n.2. The case was sent to the jury on Thursday, January 20, 2022, and the court conditionally excused the

three remaining alternate jurors the same day. Id. at

14a. The 12-member jury proceeded to deliberate for

two full days before breaking for the weekend. Ibid.

Over the course of those deliberations, the jury submitted five questions to the court. Id. at 49a.

On Sunday, January 23, 2022, Juror 9 informed the

district court that she was ill and had tested positive for

COVID-19. Pet. App. 14a, 39a. At the time, a Standing

Order prohibited anyone who had tested positive for

COVID-19 from entering the courthouse within five

days of infection. Id. at 14a n.2. Juror 9 asked whether

“Zoom would be an option to allow us to close out,” stating, “[W]e are so very close to the finish.” Id. at 14a

(quoting id. at 40a). The next day, the court sought the

4

parties’ input regarding the appropriate path forward.

Id. at 15a, 41a-42a.

The district court gave the parties the following options: (1) proceed with 11 jurors under Federal Rule of

Criminal Procedure 23(b)(3); (2) replace Juror 9 with an

alternate juror; (3) postpone the continuation of deliberations until Juror 9 recovered from COVID-19; or (4)

allow Juror 9 to participate in deliberations via Zoom.

Pet. App. 15a. Rule 23(b)(3) provides that, “[a]fter the

jury has retired to deliberate, the court may permit a

jury of 11 persons to return a verdict, even without a

stipulation by the parties, if the court finds good cause

to excuse a juror.” Fed. R. Crim. P. 23(b)(3). If the

court instead decides to replace a juror with an alternate after deliberations have begun, “the court must instruct the jury to begin its deliberations anew.” Fed. R.

Crim. P. 24(c)(3).

The Advisory Committee’s notes to Rule 23(b) observe that its procedure is “constitutionally permissible” under this Court’s decision in Williams v. Florida,

399 U.S. 78 (1970), which held that a 12-member verdict

is “is not a necessary ingredient of ‘trial by jury’ ” under

the Sixth Amendment. Id. at 86; Fed. R. Crim. P. 23

advisory committee’s note (1983 Amendments). And

the notes also reflect the Advisory Committee’s “judgment,” after reviewing cases in which jurors had developed health problems following a lengthy trial, that “it

is essential that there be available a course of action

other than a mistrial” when “a juror is lost during deliberations.” Fed. R. Crim. P. 23 advisory committee’s

note (1983 Amendments) (citing cases involving a heart

attack and a psychiatrist’s recommendation that a juror

be removed).

5

The government argued in favor of proceeding with

an 11-member jury, pursuant to Rule 23(b)(3), to avoid

additional delay. Pet. App. 15a, 42a-44a. Petitioners

disagreed, arguing that the district court should either

pause deliberations to give Juror 9 time to recover or

replace Juror 9 with an alternate. Id. at 15a, 44a-51a.

Petitioners acknowledged, however, that the court had

discretion to excuse Juror 9 and proceed with the 11 remaining jurors. Id. at 15a-16a, 47a-49a. Following

those discussions, the court determined that good cause

existed to excuse Juror 9 and proceed with deliberations

with the remaining 11 jurors pursuant to Rule 23(b)(3),

and that doing so was the best course of action. Pet.

App. 15a-16a, 52a-58a.

The district court found that waiting for Juror 9 to

recover was “ ‘not a practical option’ ” because of the

“ ‘great uncertainty’ ” about when Juror 9 would be able

to return to the courthouse and resume deliberations.

Pet. App. 16a (quoting id. at 53a). With respect to proceeding over Zoom, the court expressed concern about

whether “ ‘the deliberations would remain private’ ” and

whether “all jurors ‘would be on equal footing and have

an equal opportunity to be heard and contribute’

through such a medium.” Ibid. (quoting id. at 53a). And

the court found that seating an alternate juror was “a

‘less attractive option,’ in view of the extensive deliberative process already undertaken by the current jury.”

Ibid. (quoting id. at 54a); see id. at 16a-17a.

When the jurors returned to the courtroom, the district court informed them that Juror 9 had been excused

and that the remaining 11 jurors should continue their

deliberations. Pet. App. 17a. The court also told the

jury to “take the time that [it] need[s] to fairly consider

the evidence that has been presented” and to “take the

6

time necessary to render fair and accurate verdicts.”

Ibid. (citation omitted; brackets in original). The jury

resumed deliberations and returned a verdict later that

day. Ibid. The jury found petitioners Parada, Portillo

Rodriguez, and Sandoval Romero guilty on all charges

and found petitioner Sorto Romero guilty on most

charges, but not guilty on charges relating to one of the

murders. Ibid. The court later sentenced Portillo Rodriguez, Sandoval Rodriguez, and Sorto Romero to life

imprisonment, and Parada to 600 months of imprisonment. Ibid.

3. The court of appeals affirmed. Pet. App. 1a-35a.

Among other things, the court of appeals rejected petitioners’ contention that the district court abused its discretion in dismissing Juror 9 and proceeding with an 11member jury. Id. at 31a-33a. The court observed that

Rule 23(b) and circuit precedent “explicitly permit the

course of action taken by the district court” in this case.

Id. at 32a. The court of appeals also determined that

the district court had “sufficiently considered and explained its decision” because it dismissed Juror 9 and

proceeded with an 11-person jury only after soliciting

the opinions of counsel and thoroughly considering all

possible alternatives. Ibid. Because the court of appeals found nothing “arbitrary or capricious” about the

district court’s process or explanation, the court of appeals affirmed the district court’s decision to permit an

11-person jury to continue deliberations. Id. at 33a.

The court did not address petitioners’ contention that

Williams “rests on constitutionally infirm reasoning.”

Pets. Opening C.A. Br. 50; see Pet. App. 31a-33a.

ARGUMENT

Petitioners contend (Pet. 14-35) that this Court

should overrule its decision in Williams v. Florida, 399

7

U.S. 78 (1970), and hold that the Sixth Amendment right

to a trial by “jury” necessarily requires a 12-person

jury. Petitioners fail to provide a sound reason to reexamine Williams in this case. This Court has recently

and repeatedly denied petitions for writs of certiorari

pressing similar requests to overrule Williams. See

Cunningham v. Florida, 144 S. Ct. 1287 (2024) (No. 235171); Khorrami v. Arizona, 143 S. Ct. 22 (2022) (No.

21-1553); Phillips v. Florida, 142 S. Ct. 721 (2021) (No.

21-6059); Logan v. Florida, 552 U.S. 1189 (2008) (No.

07-7264) (cited by McDonald v. City of Chicago, 561

U.S. 742, 868 n.12 (2010) (Stevens, J., dissenting)). The

Court should follow the same course in this case, which

involves a much narrower issue—namely, whether the

Sixth Amendment precludes a trial court from allowing

an 11-person jury to return a verdict where, as here, the

court dismissed the twelfth juror for good cause after

the 12-person jury had already engaged in extended deliberations—on which petitioners have demonstrated

no entitlement to relief.

1. The Sixth Amendment provides criminal defendants with “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. Fifty-five years ago, this Court held in Williams

that “the constitutional guarantee of a trial by ‘jury’ ”

does not “necessarily require[] trial by exactly 12 persons, rather than some lesser number.” 399 U.S. at 86.

Petitioners do not dispute that, under Williams, the

Sixth Amendment allowed an 11-person jury to return

the verdict at their trial. Petitioners contend (Pet. 14),

however, that Williams “is egregiously wrong” and inconsistent with historical practice and this Court’s precedents. See Pet. 14-21. But at least to the extent that

8

Williams might be necessary to support the particular

procedure here—under which a 12-member jury was

empaneled, but a juror was excused for cause under

Federal Rule of Criminal Procedure 23(b)(3)—petitioner’s contention lacks merit.

a. This Court’s analysis in Williams refutes petitioners’ claim that Williams “failed to ‘grappl[e] with

the historical meaning of the Sixth Amendment’s jury

trial right [or] this Court’s long-repeated statements

that it demands [a jury of 12 members].’ ” Pet. 24-25

(quoting Ramos v. Louisiana, 590 U.S. 83, 106 (2020)).

Williams in fact devoted extensive attention to the “history of the development of trial by jury in criminal

cases,” 399 U.S. at 86-87; to “[t]his Court’s earlier decisions,” id. at 90; and to “the relevant constitutional history,” id. at 92.

In reviewing the common-law history, the Court

noted that “sometime in the 14th century the size of the

jury at common law came to be fixed generally at 12,”

Williams, 399 U.S. at 89. But it found that “that particular feature of the jury system appears to have been a

historical accident, unrelated to the great purposes

which gave rise to the jury in the first place.” Id. at 8990. And it subsequently noted, inter alia, that during

the colonial period, Pennsylvania “employed juries of

six or seven,” and that the South Carolina Constitution’s “provision for trial by ‘jury’ ” was not understood

to incorporate a “12-man requirement.” Id. at 98 n.45.

Turning to an examination of “whether this accidental feature of the jury has been immutably codified

into our Constitution,” the Court acknowledged that

“[t]his Court’s earlier decisions ha[d] assumed” that the

Sixth Amendment requires a 12-person jury. Williams,

399 U.S. at 90. But it explained that “the relevant

9

constitutional history casts considerable doubt on the

easy assumption in [this Court’s] past decisions that if a

given feature existed in a jury at common law in 1789,

then it was necessarily preserved in the Constitution.”

Id. at 92-93.

Then, after reviewing the history of the Sixth

Amendment’s drafting and passage, Williams, 399 U.S.

at 93-97, the Court found “absolutely no indication in

‘the intent of the Framers’ of an explicit decision to

equate the constitutional and common-law characteristics of the jury,” id. at 99. The Court accordingly determined that “[n]othing in this history suggests” that the

Court would “do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system,

as it existed at common law, were preserved in the Constitution.” Ibid.

b. Petitioners assert (Pet. 15-18) that common-law

sources support their theory that the Framers intended

the Sixth Amendment to invariably require 12-member

jury, but this Court in Williams already considered

most of petitioners’ cited Founding Era authorities.

Compare 399 U.S. at 87-88 & n.22, 90 n.25, 91 n.27, 93

n.35 (addressing Magna Carta, Blackstone, and Coke,

as well as 1 James Bradley Thayer, A Preliminary

Treatise on Evidence at the Common Law (1896)

(Thayer)), with Pet. 15-16 (same). Those authorities,

however, showed only that “at common law the jury did

indeed consist of 12”—not why that would be an invariant requirement or whether the Sixth Amendment itself

incorporated such a requirement. Williams, 399 U.S. at

91; see id. at 87-103. Much less do they show that a 12person jury is disabled from returning a valid verdict

when one member is excused for good cause.

10

As for sources not explicitly consulted in Williams,

petitioners are mistaken in invoking Matthew Hale’s

Historia Placitorum Coronae: The History of the Pleas

of the Crown (1736), for the proposition that, at common

law, an 11-person jury had “no power to act,” Pet. 16.

Hale did indicate that 12 jurors “[we]re sworn ” at the

beginning of trial, 2 Hale 293 (emphasis added), and

that if one of those jurors “wil[l]fully goes out of town,”

the 11 remaining jurors “cannot give any verdict without the twelfth,” id. at 295. But Hale also recognized

that “[t]he justices at common law may upon a just

cause remove a juror after he is sworn.” Id. at 296. Unlike in the case of the absconding juror, Hale does not

specify a remedy under which the “jury may be discharged, and a new jury sworn, and new evidence given,

and the verdict taken of the new jury,” id. at 295-296,

when a good-cause dismissal occurs, suggesting that the

jury could continue without its full complement.

Petitioners additionally contend (Pet. 21-22) that

Williams misconstrued “the drafting history of the

Sixth Amendment,” asserting that Founding Era dictionaries “use[d] the term ‘twelve men’ synonymously

with the term ‘jury.’ ” Petitioners cite only one dictionary in support of that assertion, see Pet. 21-22 (discussing Giles Jacob, A New Law-Dictionary (10th ed.

1782)), and even that dictionary does not state that the

word “jury” necessarily referred to a 12-person panel.

Instead, that dictionary defines “jury” to mean “a certain Number of Men sworn to inquire of and try the

Matter of Fact, and declare the Truth upon such Evidence as shall be delivered them.” Giles Jacob, A New

Law-Dictionary 407 (1st ed. 1729) (emphasis added).

The definition then goes on to explain that “[t]he Grand

Jury generally consists of Twenty-four Men * * * and

11

the Petit Jury consisteth of twelve Men,” id. at 408, but

that observation merely reflects “the fact that the

common-law jury consisted of 12,” Williams, 399 U.S.

at 92; see 1 Samuel Johnson, A Dictionary of the English Language (1773) (defining “jury” as “a company of

men, as twenty-four or twelve, sworn to deliver a truth

upon such evidence as shall be delivered them touching

the matter in question”). It does not speak to, much less

undermine, the proposition that a unanimous 11-member

verdict is valid when one juror is excused for good cause

during deliberations.

c. As petitioners observe (Pet. 19-21), some of this

Court’s cases before Williams “assumed” that the Constitution had “immutably codified” a 12-person-jury requirement because 12-person juries existed at common

law in 1789. Williams, 399 U.S. at 90. But this Court in

Williams reviewed those earlier cases and explained

that they did not require “read[ing] the Sixth Amendment as forever codifying” a 12-person-jury requirement. Id. at 102-103; see id. at 90-92.

For example, Williams recognized that in Thompson v. Utah, 170 U.S. 343 (1898), the Court had included

a statement—“[a]rguably unnecessary for the result”—

that the jury referenced in the Sixth Amendment “was

a jury ‘constituted, as it was at common law, of twelve

persons, neither more nor less.’ ” Williams, 399 U.S. at

90 (quoting Thompson, 170 U.S. at 349). Williams observed, however, that Thompson did not discuss

whether “every feature of the jury as it existed at common law—whether incidental or essential to that institution—was necessarily included in the Constitution

wherever that document referred to a ‘jury.’ ” Id. at 91.

Williams also observed that when later cases, including Rassmussen v. United States, 197 U.S. 516

12

(1905), had “reaffirmed the announcement in Thompson,” they “often” did so “in dictum,” and “usually by

relying—where there was any discussion of the issue at

all—solely on the fact that the common-law jury consisted of 12.” 399 U.S. 91-92 (footnotes omitted). Thus,

although the Court appropriately paid attention to the

role, or lack thereof, that such statements played in the

ratio decidendi of the relevant decision, petitioners are

incorrect to suggest (Pet. 19) that the Court simply dismissed them as dictum without also otherwise considering what weight they might have in the overall analysis.

Petitioners have thus failed to show that Williams either misconstrued this Court’s prior precedents or gave

them insufficient respect.

Moreover, petitioners fail to identify any prior decision of this Court holding that either the common law or

the Sixth Amendment would preclude a trial court from

allowing an 11-person jury to return a verdict in a case

where, as here, a 12-person jury was sworn and the

court had good cause to dismiss one of the jurors after

the jury had retired to deliberate. Petitioners repeatedly quote (Pet. 3, 15, 32) the statement in Ramos, supra, that at common law, “[a] verdict, taken from

eleven, was no verdict at all.” Ramos, 590 U.S. at 90

(quoting Thayer at 89 n.4 (1896) (Thayer)). But that

quotation, like Ramos itself, concerned a situation of

failure to achieve jury unanimity—there, the taking of

a verdict from 11 of the 12 sworn jurors (accompanied

by the imprisonment of the holdout). See Thayer at 89

n.4. It does not undermine Hale’s indication that a 12member jury could return a valid verdict even after a

juror was dismissed for good cause. See p. 10, supra.

d. This Court’s analysis in Williams also refutes petitioners’ suggestion (Pet. 22-25) that Williams’s

13

holding rested principally on the “few experiments” referenced in that opinion, 399 U.S. at 101. To determine

“which features of the jury system, as it existed at common law, were preserved in the Constitution,” the Court

in Williams examined “the function that the particular

feature performs and its relation to the purposes of the

jury trial.” Id. at 99-100. “The purpose of the jury

trial,” Williams explained, “is to prevent oppression by

the Government,” and in light of that purpose, “the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the

community participation and shared responsibility that

results from that group’s determination of guilt or innocence.” Id. at 100. And Williams then determined that

“[t]he performance of this role is not a function of the

particular number of the body that makes up the jury.”

Ibid.

In reaching that determination, Williams observed

that “[i]t might be suggested that the 12-man jury gives

a defendant a greater advantage” than a six-man jury

because “he has more ‘chances’ of finding a juror who

will insist on acquittal and thus prevent conviction.” 399

U.S. at 101. But Williams rejected that suggestion on

two grounds. See id. at 101-102. First, Williams recognized that “the advantage” of the larger jury “might

just as easily belong to the State, which also needs only

one juror out of twelve insisting on guilt to prevent acquittal.” Id. at 101. Second, Williams found that “[w]hat

few experiments have occurred—usually in the civil

area—indicate that there is no discernible difference

between the results reached by the two different-sized

juries.” Ibid. The Court did not otherwise reference

“experiments” in Williams, nor did the Court suggest

14

that those experiments played a significant role in its

Sixth Amendment analysis. To the contrary, the Court’s

one-sentence reference to a “few experiments * * * in

the civil area” indicates that the Court in Williams recognized the limited probative value of those experiments. Ibid.

Accordingly, the newer “[e]mpirical evidence” that

petitioners identify (Pet. 24, 27-28) does not undercut

Williams’s reasoning. Nor, for that matter, does empirical evidence necessarily support the proposition

that 12-person bodies make better decisions than 11person ones. See Br. in Opp. at 14-16, Cunningham,

supra (No. 23-5171) (citing studies and statistics). And

in circumstances like those here, where the deliberations included 12 jurors for nearly the entirety of their

duration, with the excused juror indicating that the jury

had comparatively little left to do, any possible practical

benefit of 12 jurors until the very end of deliberations

was quite likely to be negligible.

2. Petitioners additionally err in contending (Pet.

25-27) that legal developments since Williams have

eroded the decision’s underpinnings in any relevant respect.

a. To begin, no conflict exists between Williams,

which held that the Sixth Amendment permits trial by

a six-person jury, 399 U.S. at 86, and Ballew v. Georgia,

435 U.S. 223 (1978) (plurality opinion), which held (in

separate opinions) that the Sixth Amendment prohibits

a five-person jury in non-petty criminal cases. See

Burch v. Louisiana, 441 U.S. 130, 133, 136-137 (1979)

(describing Ballew’s holding). No opinion in Ballew

garnered a majority, but “at least five Members of the

Court believed that reducing a jury to five persons in

nonpetty cases raised sufficiently substantial doubts as

15

to the fairness of the proceeding and proper functioning

of the jury to warrant drawing the line at six.” Id. at

137. As this Court subsequently made clear, Williams

and Ballew collectively hold that “the Constitution permits juries of less than 12 members” but “requires at

least 6.” Ibid.

Petitioners suggest (Pet. 25) that Ballew has “undermined” Williams’s reasoning because, in Ballew, Justice Blackmun found that “scholarly work on jury size”

since Williams had “raise[d] significant questions about

the wisdom and constitutionality of a reduction below

six.” 435 U.S. at 231-232; see id. at 232-239 (describing

various studies). But only Justice Stevens joined Justice Blackmun’s opinion in Ballew, see id. at 224, and

Justice Powell, in a concurring opinion joined by two other

Justices, expressed “reservations as to the wisdom—as

well as the necessity—of Mr. Justice Blackmun’s heavy

reliance on numerology derived from statistical studies,” id. at 246. And even Justice Blackmun did not address the specific circumstance of a juror who is dismissed from a 12-person jury for good cause.

b. This Court’s more recent decision in Ramos likewise does not undermine Williams’s reasoning or vitality. In Ramos, the Court held that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious crime. 590 U.S. at 92-93. In so doing,

“Ramos repudiated this Court’s 1972 decision in Apodaca v. Oregon, 406 U.S. 404, which had allowed nonunanimous juries in state criminal trials.” Edwards v.

Vannoy, 593 U.S. 255, 258 (2021). Ramos criticized the

four-Justice plurality in Apodaca for “spen[ding] almost no time grappling with the historical meaning of

the Sixth Amendment’s jury trial right, [or] this Court’s

long-repeated statements that it demands unanimity”

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and for relying instead on “an incomplete functionalist

analysis of its own creation for which it spared one paragraph.” 590 U.S. at 106; see also id. at 98-100.

But for reasons previously explained (see pp. 7-10,

supra), those criticisms do not apply to the decision in

Williams. The Court there examined the common law

and history of the Sixth Amendment in detail before determining that “the fact that the jury at common law

was composed of precisely 12 is a historical accident”

that the Sixth Amendment had not codified. 399 U.S. at

102-103; see id. at 86-99. And one of the key reasons

why Ramos refused to accord stare decisis effect to

Apodaca—Apodaca’s unusual fracture, in which even

the five Justices who agreed with the result were opposed on the rationale, id. at 102—is not present in Williams.

3. Even if the Court were inclined to reconsider Williams, this case would be an unsuitable vehicle for doing

so. As discussed, this case does not involve a jury into

which fewer than 12 jurors were sworn, but instead a

12-person jury from which one juror was excused for

good cause during deliberations. In petitioners’ case, a

12-person jury was sworn, heard all of the evidence at

trial, and engaged in two full days of deliberations before Juror 9 became ill with COVID-19. See Pet. App.

14a. In their petition to this Court, petitioners do not

dispute that the district court had good cause to remove

Juror 9 from the 12-person panel or that the 12-person

jury had already undertaken an “extensive deliberative

process” (id. at 16a) when the court made that decision.

Petitioners’ case thus presents only a narrow question: whether the Sixth Amendment precludes a trial

court from allowing an 11-person jury to return a verdict, where the court dismissed the twelfth juror for

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good cause after the 12-person jury has already engaged in extended deliberations. While that procedure

is clearly constitutional under Williams, it would not

necessarily be unconstitutional if Williams were overruled. This case is not directly about whether the Sixth

Amendment requires 12-person juries, but instead

about the procedures to be applied to such juries when

an emergency arises toward the end of deliberations.

As previously discussed (see p. 10, supra), one of petitioners’ principal authorities suggests that, in that circumstance, the common law would allow a verdict from

an 11-person jury. 2 Hale 296 (“The justices at common

law may upon a just cause remove a juror after he is

sworn.”). And petitioners have not shown that other

common-law sources, this Court’s precedents, or empirical evidence would support an interpretation of the

Sixth Amendment that precludes that practice.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

JENNY C. ELLICKSON

Attorney

DECEMBER 2025