Permissible Accent-Based Peremptory Challenges and Eleven-Member Jury Procedure Under Federal Rule 23(b)

Introduction

United States v. Oscar Sorto Romero is a published decision of the Fourth Circuit, rendered on April 9, 2025, addressing two novel and interrelated issues in criminal procedure. Appellants—Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez—were tried on RICO and violent‐crime‐in‐aid‐of‐racketeering (VICAR) charges arising from alleged MS-13 activity. During jury selection the Government used peremptory strikes against two Black venirepersons (Jurors 217 and 138), and appellants lodged Batson challenges. After a lengthy trial, one juror (Juror 9) tested positive for COVID-19 two days into deliberations. Over defense objections, the district court excused that juror and, pursuant to Federal Rule of Criminal Procedure 23(b), permitted the remaining eleven jurors to complete deliberations. On appeal, appellants claimed (1) Batson error and (2) abuse of discretion under Rule 23(b). The Fourth Circuit affirmed in all respects.

Summary of the Judgment

The Fourth Circuit, in an opinion by Judge Agee joined by Chief Judge Diaz and Judge Wynn (with a separate concurrence by Judge Wynn), held:

• Batson Challenges: The district court did not clearly err in crediting the Government’s race‐ and national‐origin–neutral explanations for its peremptory strikes. As to Juror 217, concerns about a “powerful Nigerian accent” that might impede deliberations were found facially neutral and genuinely held. As to Juror 138, the Government’s rationale rested on her questionnaire omissions, perceived lack of engagement, and childcare responsibilities. The district court’s finding of no discriminatory intent was entitled to deference.
• Eleven-Member Jury Under Rule 23(b): The district court did not abuse its discretion in excusing Juror 9 after she tested positive for COVID-19 and in proceeding with an eleven-member jury. Having considered four alternatives—waiting for her recovery, remote participation via Zoom, seating an alternate under Rule 24, or declaring a mistrial—the court reasonably found “good cause” under Rule 23(b) and weighed the need for timely, private and contiguous deliberations.

Analysis

Precedents Cited

• Batson v. Kentucky, 476 U.S. 79 (1986): Established the three‐step framework for evaluating race‐based peremptory strikes under the Equal Protection Clause.
• Hernandez v. New York, 500 U.S. 352 (1991): Clarified burden‐shifting in Batson, emphasized trial‐court credibility assessments, and recognized national origin as a protected characteristic.
• Purkett v. Elem, 514 U.S. 765 (1995): Reiterated that the ultimate burden to prove discriminatory intent remains with the opponent of the strike.
• United States v. Barnette, 211 F.3d 803 (4th Cir. 2000): Held that appellate courts owe “great deference” to trial judges’ determinations on peremptory‐challenge justifications.
• Levenite v. United States, 277 F.3d 454 (4th Cir. 2002): Approved the use of an eleven‐member jury under Rule 23(b) when a juror became ill during deliberations.
• Fed. R. Crim. P. 23(b): Allows a court, after jury retirement, to excuse one juror for “good cause” and continue deliberations with eleven jurors without party stipulation.

Legal Reasoning

The Fourth Circuit applied the Batson framework under a clear‐error standard, emphasizing deference to factual—and especially credibility—findings by the district court.

• Step 1 (Prima Facie Case): Both challenges were mooted because the Government offered race‐neutral explanations. Once such explanations are provided, courts proceed directly to steps 2 and 3.
• Step 2 (Neutral Explanation):
  • Juror 217: The Government cited difficulties with a “powerful Nigerian accent” that required repeated clarifications, fearing it would impair deliberative communication. The district court held that accent‐related communication concerns—even if tied to national origin—can be permissible non‐discriminatory grounds for a peremptory strike.
  • Juror 138: The Government pointed to her uncompleted questionnaire answers, perceived lack of engagement during voir dire, and uncertainty about childcare coverage in a nine‐week trial. These reasons were facially neutral and not inherently proxies for race.
• Step 3 (Pretext and Discriminatory Intent):
  • The district court performed the pivotal credibility inquiry and found that the Government’s justifications were genuine, not pretextual. It noted the trial judge’s direct interactions with each juror, observed the manner in which questions were repeated, and rejected defense assertions as insufficient to overthrow the Government’s reason.

On the Rule 23(b) issue, the court reviewed for abuse of discretion. It first confirmed statutory authority under Rule 23(b) to proceed with eleven jurors once “good cause” is found. Then, after obtaining input from counsel on four possible approaches, the court ruled:

1. Waiting multiple days under COVID protocols would unduly delay resolution.
2. Remote deliberations via Zoom posed unacceptable risks to privacy and equality of juror participation.
3. Seating an alternate under Rule 24 would disrupt a jury already deep in deliberations.
4. As a last resort, excusing Juror 9 and continuing with an eleven‐member jury met the “good cause” standard, preserved due process, and avoided an unwarranted mistrial.

That structured analysis and explanation demonstrated the exercise of considered, not arbitrary, discretion.

Impact

United States v. Oscar Sorto Romero clarifies two important points in federal criminal practice:

• Accent as a Peremptory‐Challenge Basis: While race‐ or origin‐based exclusions remain prohibited, a juror’s accent or language comprehension—if shown to impede effective deliberation—can constitute a permissible neutral ground for a peremptory strike. Trial judges may evaluate such matters closely and, absent evidence of discrimination, credit government counsel’s genuine concerns.
• Eleven-Member Jury During a Pandemic: In extraordinary circumstances such as COVID-19, district courts retain discretion under Rule 23(b) to excuse an incapacitated juror and proceed with eleven members without a mistrial. This decision will be upheld if the court demonstrates thoughtful consideration of alternatives, practical constraints, and the need for fair, private, and timely verdicts.

These holdings will guide future courts balancing non‐discrimination principles in jury selection with practical demands of complex trials—and will inform pandemic‐era adaptations in jury management.

Complex Concepts Simplified

• Peremptory Strike: A side’s right to excuse a prospective juror without stating cause, though not valid if exercised on the basis of race, ethnicity, gender, or other protected traits.
• Batson Framework:
  1. Plaintiff/defendant shows a pattern suggesting discrimination.
  2. Proponent of strike gives a neutral reason (e.g., accent, demeanor, childcare).
  3. The court decides if that reason is a pretext for discrimination—this is a credibility call.
• Fed. R. Crim. P. 23(b): After deliberations begin, a court may excuse one juror “for good cause” and allow the remaining eleven jurors to return a verdict, even over party objection.

Conclusion

United States v. Oscar Sorto Romero reaffirms that district courts have broad, deferential authority both in assessing the genuineness of accent-based peremptory challenges and in managing jury continuity during a public‐health emergency. Provided that counsel’s proffered neutral reasons withstand credibility review and the “good cause” standard for juror excusal is satisfied, the trial court’s decisions will be upheld. This decision not only preserves the integrity of jury selection under Batson v. Kentucky but also offers a pragmatic blueprint for sustaining fair verdicts when unforeseen disruptions—such as a juror’s COVID-19 infection—threaten to derail complex criminal trials.