Permissibility of Accent-Based Peremptory Strikes and Eleven-Member Jury under Fed. R. Crim. P. 23(b)

Introduction

In United States v. Milton Portillo Rodriguez, 4th Cir. (Apr. 10, 2025), four defendants—Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez—were convicted in the District of Maryland on racketeering and violent‐crime‐in‐aid‐of‐racketeering charges for their alleged roles in MS-13. During jury selection, the Government struck two Black venirepersons (Jurors 217 and 138) and the defendants objected under Batson v. Kentucky. After a three-month trial, a juror tested positive for COVID-19 while deliberating. The district court excused that juror and, under Federal Rule of Criminal Procedure 23(b), permitted an eleven-member jury to return a verdict.

On appeal, defendants argued (1) that the district court clearly erred in denying their Batson challenges to the strikes of Jurors 217 and 138 and (2) that the court abused its discretion in proceeding with an eleven‐person jury. The Fourth Circuit affirmed both rulings.

Summary of the Judgment

The Fourth Circuit held that:

Batson Challenges: The Government’s stated reasons for striking Juror 217 (a strong accent raising concerns about ability to deliberate) and Juror 138 (apparent inattention to the questionnaire and childcare concerns) were race‐ and national-origin-neutral and genuinely held. The district court’s credibility determinations on these points were not clearly erroneous.
Eleven-Member Jury under Rule 23(b): After Juror 9 tested positive for COVID-19 during deliberations, the district court weighed alternatives—waiting for recovery, Zoom deliberations, substituting an alternate, or mistrial—and found good cause to excuse Juror 9 and proceed with eleven jurors. That decision was a proper exercise of discretion.

Analysis

Precedents Cited

Batson v. Kentucky, 476 U.S. 79 (1986): Peremptory strikes may not be exercised on the basis of race.
Hernandez v. New York, 500 U.S. 352 (1991): Three‐step Batson framework; deference to trial judges on credibility.
Purkett v. Elem, 514 U.S. 765 (1995): Proffered neutral reasons need not be persuasive—only genuine.
United States v. Barnette, 211 F.3d 803 (4th Cir. 2000): Clear‐error review of trial court’s finding on neutral explanation.
United States v. Levenite, 277 F.3d 454 (4th Cir. 2002): Approval of eleven-member jury under Rule 23(b) when a juror falls ill.
United States v. Acker, 52 F.3d 509 (4th Cir. 1995): Eleven-person jury proper when a juror is excused for incapacity.
Charboneau, 914 F.3d 906 (4th Cir. 2019): Clear‐error standard for Batson rulings.
Vidacak, 553 F.3d 344 (4th Cir. 2009): Abuse‐of‐discretion standard for Rule 23 decisions.

Legal Reasoning

Batson Step 2 (Neutral Explanation): The Government stated that Juror 217’s “thick accent” made him hard to understand and therefore posed a risk to effective deliberations. Juror 138’s apparent failure to complete and engage with the voir-dire questionnaire raised concerns about her attention and reliability. Both reasons were facially neutral and permissible even if tied to national origin or personal background.

Batson Step 3 (Credibility/Pretext): Because credibility determinations “peculiarly lie within the trial judge’s province,” the Fourth Circuit reviews only for clear error. The district court observed first‐hand the difficulties in understanding Juror 217 and the tepid responses of Juror 138. It reasonably credited the Government’s genuine concerns and found no evidence of racial or national‐origin bias.

Rule 23(b) Eleven-Member Jury: After Juror 9’s COVID-19 diagnosis, the court considered in turn:

Postponing deliberations until recovery (would impose at least a week’s delay under COVID protocols).
Allowing remote participation via Zoom (concerns about juror privacy and equality of participation).
Replacing juror with an alternate (less appealing given two full days of deliberations already completed).
Proceeding under Rule 23(b) with eleven jurors (least disruptive and well within the court’s discretion).

Having weighed these options, the district court found good cause to excuse a single juror and continue with eleven. The Fourth Circuit concluded that this decision was neither arbitrary nor capricious.

Impact

This decision clarifies two key points for federal criminal practice:

Accent‐based communication concerns can constitute a race-neutral basis for peremptory strikes, so long as the court finds the prosecutor’s motivation genuine and not pretextual.
In situations where a juror becomes incapacitated during deliberations—particularly under public‐health constraints—a district court may, under Rule 23(b), excuse that juror for good cause and proceed with an eleven-member jury.

Complex Concepts Simplified

Peremptory Strike: A limited removal of a potential juror without stating cause, subject to Batson’s prohibition on race or national-origin discrimination.
Batson Framework: Three steps—(1) prima facie showing of discrimination, (2) prosecutor’s neutral explanation, (3) court’s determination of discriminatory intent.
Clear-Error Review: Appellate courts defer to the trial judge’s factual and credibility findings unless left with a “definite and firm conviction” of mistake.
Fed. R. Crim. P. 23(b): Authorizes excusal of a juror after deliberations begin and continuation with eleven jurors upon a finding of good cause.

Conclusion

United States v. Milton Portillo Rodriguez establishes that neutral, genuinely held concerns—such as a juror’s accent or questionnaire engagement—survive Batson scrutiny when the trial court credit’s the prosecutor’s explanation. It also reinforces the trial court’s broad discretion under Rule 23(b) to manage juror health and public-health protocols by proceeding with an eleven-member jury once good cause for excusal is found. Both holdings underscore the deference afforded to trial judges on juror suitability and deliberation management—particularly under extraordinary circumstances like the COVID-19 pandemic.