United States v. Horacio Alvarado, 923 F.2d 253 (2d Cir. 1991). · Go Syfert
United States v. Horacio Alvarado, 923 F.2d 253 (2d Cir. 1991). Cases Citing This Book View Copy Cite
“we are not informed of the minority percentage of the venire in this case, but we may accept as a surrogate for that figure the minority percentage of the population of the eastern district, from which the venire was drawn.”
344 citation events (238 in the last 25 years) across 44 distinct courts.
Strongest positive: United States v. PARIS (ca2, 2010-09-17)
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discussed Cited as authority (verbatim quote) United States v. PARIS
2d Cir. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
only a rate of 15 minority challenges significantly higher than the minority 16 percentage of the venire would support a statistical inference of 17 discrimination.
examined Cited as authority (verbatim quote) James Michael Strickland v. State of Mississippi (2×) also: Cited as authority (rule)
Miss. · 2006 · quote attribution · 1 verbatim quote · confidence high
we are not informed of the minority percentage of the venire in this case, but we may accept as a surrogate for that figure the minority percentage of the population of the eastern district, from which the venire was drawn.
discussed Cited as authority (verbatim quote) Messiah v. Duncan (2×) also: Cited as authority (rule)
2d Cir. · 2006 · quote attribution · 1 verbatim quote · confidence high
he magistrate made findings that the prosecution's explanations were race-neutral as to , but made no findings as to .
discussed Cited as authority (verbatim quote) Joaquin Leso Fernandez v. Ernie Roe, Warden General of the State of California People of the State of California (2×) also: Cited "see"
9th Cir. · 2002 · signal: see · quote attribution · 1 verbatim quote · confidence high
he initial question is whether appellants presented a prima facie case sufficient to require explanations; that determination must be made before the explanations are considered.
discussed Cited as authority (verbatim quote) Central AL v. Lowder Realty Co.
11th Cir. · 2000 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.
discussed Cited as authority (verbatim quote) United States v. Santopietro (2×) also: Cited as authority (rule)
D. Conn. · 1992 · signal: see · quote attribution · 1 verbatim quote · confidence high
the prosecution's decision not to use an available challenge against minority veniremen is also a relevant circumstance to be weighed
examined Cited as authority (quoted) United States v. Diaz (3×) also: Cited as authority (rule), Cited "see"
2d Cir. · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities.
examined Cited as authority (quoted) United States v. Diaz (3×) also: Cited as authority (rule), Cited "see"
2d Cir. · 1999 · signal: see · quote attribution · 1 verbatim quote · confidence high
f the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities.
discussed Cited as authority (rule) People v. Johnson (2×)
Cal. · 2019 · confidence medium
While Hispanics constituted only about 12% of the venire, 21% (four out of nineteen) of the prospective juror challenges were made against Hispanics”]; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 813 [inference 10 PEOPLE v. JOHNSON Cuéllar, J., dissenting established when the prosecutor used 56 percent of her challenges against African Americans, who comprised only 30 percent of the pool — a relative disparity of 87 percent], overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d 677 , 685; U.S. v. Alvarado (2d Cir. 1991) 923 F.2d 253, 255-256 [inference established wh…
discussed Cited as authority (rule) Molina v. City of Elmira
2d Cir. · 2019 · confidence medium
The final step requires that the judge “make ‘an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.’” Jordan v. Lefevre, 206 F.3d 196, 200 (2000) (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991)).
discussed Cited as authority (rule) Rubin v. Lamanna
E.D.N.Y · 2019 · confidence medium
None of these arguments intent based on all the facts and provide grounds for habeas relief in the circumstances.” Jordan v. Lefevre, 206 F.3d. instant case. 196, 200 (2d Cir. 2000) (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d 1.
discussed Cited as authority (rule) Carmichael v. Chappius
2d Cir. · 2017 · confidence medium
In his reply brief submitted to the District Court, Carmichael clarified that his Batson claim was based on the State’s "exclusion rate,” not its "challenge rate.” However, even if Carmichael’s Batson claim was based on the State’s “challenge rate” — "the percentage of a party’s total strikes used against a cognizable racial group,” Jones , 555 F.3d at 98— the fact that the State’s "challenge rate” was nearly double the percentage of blacks in the venire would permit a court to find that Carmichael had made a prima facie showing of race discrimination, see United Stat…
cited Cited as authority (rule) DeVorce v. Phillips
2d Cir. · 2015 · confidence medium
United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991).
discussed Cited as authority (rule) United States v. Bontzolakes
2d Cir. · 2014 · confidence medium
We remanded to the District Court to conduct a “reconstruction hearing” as to the “the third step of the Batson inquiry, which requires a district court to make ‘an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.’ ” Id. at 43-44 (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991)).
discussed Cited as authority (rule) Harris, Roderick
Tex. Crim. App. · 2014 · signal: cf. · confidence medium
Cf. United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) (“[T]he prosecution’s challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates.
discussed Cited as authority (rule) Harris, Roderick
Tex. Crim. App. · 2014 · confidence medium
United States v. Alvarado , 923 F.2d 253, 255 (2d Cir. 1991) ("[T]he prosecution's challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates.
discussed Cited as authority (rule) United States v. Bontzolakes
2d Cir. · 2013 · confidence medium
At issue, then, is the third step of the Batson inquiry, which requires a district court to make “an ultimate determination on the issue of discriminatory intent based on all the facts and circum *44 stances.” United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991).
discussed Cited as authority (rule) Parnell v. Lape
E.D.N.Y · 2011 · confidence medium
The trial judge must make the “ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.” Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000) (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991)).
discussed Cited as authority (rule) Perez v. Smith
E.D.N.Y · 2011 · confidence medium
The trial judge must make “ ‘the ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.’ ” Jordan, 206 F.3d at 200 (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991)).
discussed Cited as authority (rule) Ekwem v. Fenty
D.D.C. · 2009 · confidence medium
Compl. ¶ 26.) Based on the facts alleged, the Court cannot reasonably infer that the Mayor “participated in any decision or approved any policy that related to the case.” Cameron v. Thornburgh, 923 F.2d 253, 257-58 (D.C.
discussed Cited as authority (rule) Butler v. Fischer
2d Cir. · 2009 · confidence medium
Although “statistical disparities are to be examined,” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), courts must also consider “any other relevant circumstances,” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir.1998).
discussed Cited as authority (rule) Butler v. Fischer
2d Cir. · 2009 · confidence medium
Although “statistical disparities are to be examined,” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), courts must also consider “any other relevant circumstances,” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir.1998).
discussed Cited as authority (rule) Woodward v. Epps
5th Cir. · 2009 · signal: cf. · confidence medium
The number of strikes used to excuse minority and male jury members is irrelevant on its own.”); cf. United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) (“[T]he prosecution’s challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates.
discussed Cited as authority (rule) Williams v. Runnels
C.D. Cal. · 2009 · confidence medium
Fernandez, 286 F.3d at 1078 ; Turner I, 63 F.3d at 812-13 ; see also Jones v. Ryan, 987 F.2d 960, 971 (3d Cir.1993) (prima facie case found where prosecutor removed three of four Black jurors and used three of his four peremptory challenges to do so); United, States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991) (prima facie case found where prosecutor struck four of seven minority jurors because “a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson.”).
discussed Cited as authority (rule) Jones v. West (2×) also: Cited "see"
2d Cir. · 2009 · confidence medium
See, e.g., Brown v. Alexander, 543 F.3d 94, 101 (2d Cir.2008); Green v. Travis, 414 F.3d 288, 299 (2d Cir.2005); Overton, 295 F.3d at 278 n. 9; United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991).
discussed Cited as authority (rule) Jones v. West (2×) also: Cited "see"
2d Cir. · 2009 · confidence medium
See, e.g., Brown v. Alexander, 19 543 F.3d 94, 101 (2d Cir. 2008); Green v. Travis, 414 F.3d 288 , 20 299 (2d Cir. 2005); Overton, 295 F.3d at 278 n.9; United States v. 21 Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991).
discussed Cited as authority (rule) Rosario v. Ercole
S.D.N.Y. · 2008 · confidence medium
To be sure, this disparity is far below the greater than 100% difference relied upon by the Second Circuit in Alvarado, id. at 256, but that case did not purport to, and should not be read to, establish a minimum threshold for prima facie claims of discrimination.
discussed Cited as authority (rule) Brown v. Alexander
2d Cir. · 2008 · confidence medium
We have made clear, however, that “[o]nly a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.” United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991) (finding that “a challenge rate nearly twice the likely minority percentage of the veni-re strongly supports a prima fade case under Batson”).
discussed Cited as authority (rule) United States v. Rodriguez (Todd)
2d Cir. · 2008 · confidence medium
We have held that 11 the third step of the Batson inquiry requires a trial judge to make “an ultimate determination on 12 the issue of discriminatory intent based on all the facts and circumstances.” United States v. 13 Alvarado, 923 F.2d 253, 256 (2d Cir. 1991).
discussed Cited as authority (rule) United States v. Thompson
2d Cir. · 2008 · confidence medium
We have held that the third step of the Batson inquiry requires a trial judge to make “an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.” United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991).
discussed Cited as authority (rule) Rosario v. BURGEE
S.D.N.Y. · 2008 · confidence medium
This information alone, however, is insufficient. “[0]nly a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991).
discussed Cited as authority (rule) Strickland v. State (2×)
Miss. · 2008 · confidence medium
See Walker v. State, 740 So.2d 873, 880 (Miss.1999); U.S. v. Alvarado, 923 F.2d 253, 255-56 (2nd Cir.1991) ("We are not informed of the minority percentage of the venire in this case, but we may accept as a surrogate for that figure the minority percentage of the population of the Eastern District, from which the venire was drawn."). ¶ 35.
examined Cited as authority (rule) Sorto v. Herbert (8×)
2d Cir. · 2007 · confidence medium
United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991).
discussed Cited as authority (rule) Sorto v. Herbert (2×)
2d Cir. · 2007 · confidence medium
Id. 8 at 279. 9 Where a litigant points to a pattern of strikes as 10 evidence of discrimination, “statistical disparities are to 11 be examined” as part of the Batson prima facie inquiry. 12 United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991). 13 The need to examine statistical disparities may commend a 14 wait-and-see approach.
discussed Cited as authority (rule) State v. Pona.
R.I. · 2007 · confidence medium
If a trial justice fails to make the requisite finding of credibility “for each challenged strike, ‘the appropriate course [usually will be] to remand for findings by the [court] as to [the challenged strikes] and an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances.’ ” Barnes, 202 F.3d at 156 (quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991)); accord Harris, 192 F.3d at 588 .
discussed Cited as authority (rule) Sims v. Berghuis
E.D. Mich. · 2007 · confidence medium
United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991); accord Lancaster v. Adams, 324 F.3d 423 , 434 n. 2 (6th Cir.2003) (stating that “the presence of one or more African-American venire members on the jury, standing alone, does nothing to preclude a valid claim under Batson”); United States v. Harris, 192 F.3d 580, 587 (6th Cir.1999) (stating that “the presence of one African-American on the jury does not preclude a Batson challenge”).
discussed Cited as authority (rule) Sorto v. Herbert (2×)
2d Cir. · 2007 · confidence medium
United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991).
discussed Cited as authority (rule) Jones v. State (2×)
Del. · 2007 · confidence medium
“Batson's citation of Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), in connection with the assessment of a prima facie case, Batson, 476 U.S. at 96 , 106 S.Ct. 1712 , indicates that statistical disparities are to be examined.” U.S. v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991). 19 .
examined Cited as authority (rule) Jones v. West (3×)
W.D.N.Y. · 2007 · confidence medium
Absent discriminatory intent, a prosecutor would be expected to exercise peremptory challenges against minority jurors in roughly the same percentage as their representation in the venire; “[o]nly a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination.” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991) (“Alvarado II”).
discussed Cited as authority (rule) Isaac v. Brown
2d Cir. · 2006 · confidence medium
Finally, the trial court must make an “ultimate determination of the issue of discriminatory intent based on all the facts and circumstances.” United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991).
discussed Cited as authority (rule) Truesdale v. Sabourin (2×)
S.D.N.Y. · 2006 · confidence medium
Although the rate of actual strikes was 36% higher than the expected rate, Judge Gorenstein observed that the disparity between the two was smaller than the disparity found by the Second Circuit to create an inference of discrimination in United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991).
discussed Cited as authority (rule) Messiah v. Duncan
2d Cir. · 2006 · confidence medium
Nor is this a situation in which the trial judge ruled on some challenged panelists without ruling on others, see Galarza, 252 F.3d at 639 -40 (quoting trial court's statement that "`[s]ince I am satisfied that at least three of [five or six Batson challenges] have certain articulable [sic] reasons, I am not going to stop the trial'") (emphasis in original); United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991) ("[T]he Magistrate made findings that the prosecution's explanations were race-neutral as to [two panelists], but made no findings as to [two other panelists]."), or in which the c…
discussed Cited as authority (rule) United States v. Fabio Ochoa-Vasquez (2×)
11th Cir. · 2005 · confidence medium
Central Ala. Fair Housing Ctr., 236 F.3d at 637 (citing United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), in which the court held that a challenge rate 172% greater than the estimated minority percentage of the venire established a prima facie case of discrimination).
discussed Cited as authority (rule) ca11 2005
11th Cir. · 2005 · confidence medium
Central Ala. Fair Housing Ctr., 236 F.3d at 637 (citing United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), in which the court held that a challenge rate 172% greater than the estimated minority percentage of the venire established a prima facie case of discrimination).
discussed Cited as authority (rule) Robinson v. United States (2×)
D.C. · 2005 · confidence medium
See, e.g., Johnson, 125 S.Ct. at 2410, 2418 , 73 USLW at 4460, 4463 (prosecutor used three of his twelve peremptory challenges to remove all three of the forty-three eligible jurors who were black); Miller-El v. Cockrell, 537 U.S. at 342 , 123 S.Ct. 1029 (where prosecutors used ten of fourteen peremptory strikes to exclude 91% of eligible African-American venire members, and only one served on the jury, “the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason”); Capitol Hill Hosp. v. Baucom, 697 A.2d 760, 765, 770-71 (D.C.1997) (counse…
examined Cited as authority (rule) Anderson v. Superintendent, Elmira Correctional Facility (4×) also: Cited "see"
E.D.N.Y · 2005 · confidence medium
Since the minority percentage of the venire was unknown, the court, on its own initiative, accepted as a surrogate for that figure, the 29 percent minority percentage of the Eastern District of New York, from which the venire was drawn, and concluded that “a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case under Batson consequently, it reached the second prong of the Batson inquiry and vacated the district court’s judgment because the magistrate presiding over jury selection failed to make findings as to whether the prosecutor ha…
discussed Cited as authority (rule) Commonwealth v. Williams (2×)
Pa. · 2004 · confidence medium
See generally Batson, 476 U.S. at 96 , 106 S.Ct. at 1723 (explaining that a criminal defendant is entitled to rely upon the fact that “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ”); id. at 97 , 106 S.Ct. at 1723 (observing that “a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination”); United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991) (concluding that “a challenge rate nearly twice the likely minority perc…
discussed Cited as authority (rule) Commonwealth v. Uderra (2×)
Pa. · 2004 · confidence medium
Accord Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir.1995) (holding that a prima facie case was established via a combination of the defendant’s race, the prosecution’s exclusion of at least one potential juror of the same race, and the circumstances surrounding the crime); see also Fernandez v. Roe, 286 F.3d 1073, 1078-79 (9th Cir.2002) (holding that, where Hispanics represented 12 percent of the venire, 21 percent of prospective juror challenges were made against Hispanics, and the prosecutor struck four of seven (57 percent) of them, the defendant established a prima facie case); United …
discussed Cited as authority (rule) Reyes v. Greiner (2×) also: Cited "see"
E.D.N.Y · 2004 · confidence medium
Because of this distinction, Judge Newman has argued persuasively that, even on direct appeal, “in those rare cases where the corrective action required to be taken by Batson during jury selection is not taken, the incremental benefit of enforcing Batson by reversing convictions obtained with fairly representative juries [is] not warranted.” United States v. Alvarado, 923 F.2d 253, 254 (2d Cir.1991) (Newman, J.).
UNITED STATES of America, Appellee,
v.
Horacio ALVARADO, Defendant-Appellant
162, Dockets 88-1303(L), 88-1420.
Court of Appeals for the Second Circuit.
Jan 16, 1991.
923 F.2d 253
Abraham L. Clott, The Legal Aid Soc., New York City, submitted a letter brief, for defendant-appellant., Frank J. Marine, Sp. Counsel, Organized Crime Section, U.S. Dept, of Justice, Washington, D.C., submitted a letter brief, for appellee.
Newman, Pratt, Mahoney.
Cited by 161 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #29,964 of 633,719
Citer courts: Second Circuit (2)
[*254] JON 0. NEWMAN, Circuit Judge:

This appeal, alleging that a prosecutor used peremptory challenges in a discriminatory manner, is before us on remand from the Supreme Court. The appeal is brought by Horacio Alvarado from a judgment of the District Court for the Eastern District of New York (John R. Bartels, Judge) convicting him, after a jury trial, of extortion and conspiracy to commit extortion, in violation of 18 U.S.C. §§ 1951, 1952 (1988). Alvarado, who is described by his counsel as half Black and half Puerto Ri-can, contests as discriminatory the Government’s use of peremptory challenges against Blacks and Hispanics. On our pri- or consideration, United States v. Alvarado, 891 F.2d 439 (2d Cir.1989) {Alvarado I), we did not rule on whether the appellant had presented in the District Court a pri-ma facie case of discriminatory use of peremptory challenges, sufficient to require the prosecutor to provide nondiscriminatory explanations, see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or whether the partial explanations volunteered by the prosecutor were sufficient. Instead, we ruled that Alvarado’s claim warranted no appellate relief because the jury ultimately empaneled adequately reflected the Black and Hispanic population of the Eastern District.

In response to Alvarado’s petition for a writ of certiorari, the Solicitor General suggested to the Supreme Court that we had erred in rejecting the Batson challenge on the basis of the ultimate composition of the jury, but nevertheless urged that certiorari should be denied because Alvarado had failed to establish a prima facie case of discrimination and because the prosecutor’s volunteered reasons were race-neutral. In a 5-4 decision, the Supreme Court granted the petition, vacated our judgment, and remanded “for further consideration in light of the position asserted by the Solicitor General.” [1] Alvarado v. United States, — U.S. -, 110 S.Ct. 2995, 2996, 111 L.Ed.2d 439 (1990).

In giving the case reconsideration, we note that the Solicitor General appears to have misunderstood our opinion. He seems to have believed that we thought that the “equal protection analysis [of Bat-son] would be inapplicable to a case in which the defendant’s jury mirrored the community.” See Brief for United States in Opposition to Petition for Writ of Certio-rari at 12, Alvarado v. United States, supra (No. 89-6985). On the contrary, we thought the Batson equal protection analysis was very much applicable and emphasized the obligation of the judicial officer supervising the jury selection to enforce its requirements. Alvarado I, 891 F.2d at 445. Our point was that in those rare cases where the corrective action required to be taken by Batson during jury selection is not taken, the incremental benefit of enforcing Batson by reversing convictions obtained with fairly representative juries was not warranted. Id. Nevertheless, we recognize that it is now prudent to focus our reconsideration upon the two issues that the Supreme Court recognized we did not reach in our prior opinion — whether appellant established a prima facie case of intentional discrimination and whether the prosecutor gave adequate race-neutral explanations for the challenges against mi[*255] nority members of the venire. See Alvarado v. United States, 110 S.Ct. at 2996. [2]

1. Prima facie showing of discrimination. Jury selection was conducted before a magistrate without objection, a practice we have approved. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.1989), ce rt. denied sub nom. Chapotean v. United States, — U.S. -, 110 S.Ct. 1927,109 L.Ed.2d 290 (1990). The jury was chosen using the “jury box” system, with peremptory challenges exercised in “rounds.” See United States v. Blouin, 666 F.2d 796 (2d Cir.1981). In round one, the prosecution challenged a Black, William Clark; in round two, a White; in round three, an Hispanic, Mario Garcia; in round four, a Black, Essie Callier; in round six, a White. In round five, the prosecution waived its challenge at a time when three minority members were seated in the jury box, available for challenge. In the selection of the three alternates, the prosecution used its one challenge against a Black, Sondra Brown.

Upon Alvarado’s assertion of a Batson claim, the Magistrate, though not requiring explanations from the prosecution, afforded an opportunity to state reasons “[i]f you wish to say anything.” The prosecution then volunteered reasons for the four minority challenges: Clark was challenged because his youth and lack of experience made him an inappropriate candidate for foreman, which the prosecution assumed he would become by virtue of his being seated as juror number one; Garcia was challenged because his lack of fluency in English caused concern that he might have difficulty understanding tape recordings; Callier was challenged because, with children the age of the defendant, she might be unduly sympathetic; Brown was challenged because she was a social worker, and might for that be reason be sympathetic. The Magistrate accepted the explanations as to Clark and Brown, but made no findings with respect to Garcia and Cal-lier. Without clarifying whether he was finding that no prima facie case of discrimination had been established or that Alvarado had not prevailed on the ultimate issue of proving discriminatory intent, the Magistrate rejected the Batson claim.

Renewing his challenge in light of the Supreme Court’s remand, appellant first contends that a prima facie case of discrimination was established. He points out that the prosecution used four of its seven challenges against minority members of the venire, with three out of six used to challenge minority members in selection of the twelve regular members of the jury. There is no indication that any of the prosecution’s “questions and statements during voir dire,” Batson, 476 U.S. at 97, 106 S.Ct. at 1723, revealed evidence of discriminatory intent. Appellant urges us to consider at this point what he regards as the inadequate explanations offered by the prosecution for its challenges. However, the initial question is whether appellants presented a prima facie case sufficient to require explanations; that determination must be made before the explanations are considered.

Batson’s citation of Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), in connection with the assessment of a prima facie case, Batson, 476 U.S. at 96, 106 S.Ct. at 1722, indicates that statistical disparities are to be examined. Here, the prosecution’s challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates. Whether this rate creates a statistical disparity would require knowing the minority percentage of the venire; for example, if the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities. Only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination. We are[*256] not informed of the minority percentage of the venire in this case, but we may accept as a surrogate for that figure the minority percentage of the population of the Eastern District, from which the venire was drawn. That percentage is 29. See Alvarado I, 891 F.2d at 444 & n. 5.

We think a challenge rate nearly twice the likely minority percentage of the venire strongly supports a 'prima facie case under Batson. The Government opposes this conclusion, pointing to the prosecution’s waiver of a challenge in the fifth round, when minority veniremen were in the jury box, subject to peremptory challenge. Though failure to exercise an available challenge against minority veniremen has been mentioned in the decisions of some courts finding no prima facie case of discrimination, see United States v. Moore, 895 F.2d 484, 486 n. 5 (8th Cir.1990); United States v. Grandison, 885 F.2d 143, 148 (4th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1990), the fifth round waiver here does not defeat a prima facie case. The discrimination condemned by Batson need not be as extensive as numerically possible. A prosecutor may not avoid the Batson obligation to provide race-neutral explanations for what appears to be a statistically significant pattern of racial peremptory challenges simply by forgoing the opportunity to use all of his challenges against minorities.

2. Adequacy of prosecutor’s explanations. The task of assessing the prosecutor’s explanations, in order to determine the ultimate issue of whether discrimination has been shown, falls primarily upon the judicial officer conducting the jury selection, whose determinations as to the credibility of the proffered explanations are entitled to “appropriate deference.” Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. In this case, the Magistrate made findings that the prosecution’s explanations were race-neutral as to Clark and Brown, but made no findings as to Garcia and Callier. We think the appropriate course is to remand for findings by the Magistrate as to Garcia and Callier and an ultimate determination on the issue of discriminatory intent based on all the facts and circumstances. See United States v. Mitchell, 877 F.2d 294, 303 (4th Cir.1989). An explanation for a particular challenge need not necessarily be pigeon-holed as wholly acceptable or wholly unacceptable. The relative plausibility or implausibility of each explanation for a particular challenge, assessed in light of the prosecution’s acceptance of jurors with similar circumstances, may strengthen or weaken the assessment of the prosecution’s explanation as to other challenges and thereby assist the fact-finder in determining overall intent. Moreover, as both sides acknowledge, the prosecution’s decision not to use an available challenge against minority veniremen is also a relevant circumstance to be weighed. [3]

We appreciate that the Magistrate might encounter some difficulty recalling the circumstances of the jury selection and might conclude that examination of the record, supplemented by such further hearing on remand as he deems appropriate, may not yield a satisfactory basis for determining the prosecution’s state of mind when the jury was selected. If he concludes that the passage of time has unduly impaired his ability to make a fair determination of the prosecution’s intent, he may so state, in which event the District Court shall order a new trial. But if appropriate findings may conveniently be made, this should be done, with the District Court authorized then either to reinstate the judgment of conviction or order a new trial, depending upon the Magistrate’s findings. See United States v. Alcantar, 897 F.2d 436 (9th Cir.1990) (disagreeing with District Court’s conclusion on remand on the Batson claim and ordering new trial).

The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

1

. Interestingly, the Supreme Court did not follow the practice it customarily used in earlier days when acting in response to a confession of error by the Solicitor General. In the past, the Supreme Court has made its own independent determination of the issue on which the Solicitor General has disagreed with a court of appeals. See Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304 n. 9, 91 L.Ed. 331 (1946); Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942); see also DeMarco v. United States, 415 U.S. 449, 451, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974) (Rehnquist, J., dissenting) ("It is well established that this Court does not, or at least should not, respond in Pavlovian fashion to confessions of error by the Solicitor General."); Petite v. United States, 361 U.S. 529, 533, 80 S.Ct. 450, 452, 4 L.Ed.2d 490 (1960) (Brennan, J., dissenting) ("Even where the Government confesses error, this Court examines the case on the merits itself...."). More recently, however, without assessing the issue for itself, the Court has remanded for reconsideration in light of the Solicitor General’s position. See Chappell v. United States, — U.S.-, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990); Biddle v. United States, 484 U.S. 1054, 108 S.Ct. 1004, 98 L.Ed.2d 971 (1988); Malone v. United States, 484 U.S. 919, 108 S.Ct. 278, 98 L.Ed .2d 239 (1987).

2

. The Supreme Court’s opinion leaves some ambiguity as to whether we may consider both the existence of a prima facie case and the adequacy of the prosecutor’s explanations, or only the latter issue. In papers submitted at our invitation after the remand, both parties have agreed that both issues are properly before us.

3

. We do not agree with the Government, however, that the fact that one of the two prosecutors is Black is a circumstance weighing against a finding of discrimination.