United States v. Rodriguez: Accent-Based Peremptory Strikes and Rule 23(b) Eleven-Member Jury Validated

Introduction

This consolidated appeal arises from the convictions of four defendants—Jose Joya Parada, Oscar Armando Sorto Romero, Milton Portillo Rodriguez, and Juan Carlos Sandoval Rodriguez—for racketeering and violent-crime-in-aid-of-racketeering (VICAR) offenses in connection with MS-13 activities. Tried in the District of Maryland before Judge James K. Bredar, the case spanned the COVID-19 pandemic and gave rise to two novel issues on appeal:

• Whether the Government’s use of peremptory strikes against two Black venirepersons—one with a heavy Nigerian accent and one who appeared inattentive—violated the Equal Protection Clause under Batson v. Kentucky;
• Whether the district court abused its discretion by excusing a juror who tested positive for COVID-19 during deliberations and proceeding with an eleven-member jury under Federal Rule of Criminal Procedure 23(b).

The Fourth Circuit, in an opinion by Judge Agee, with Chief Judge Diaz and Judge Wynn joining (and a concurrence by Judge Wynn), affirmed the district court’s rulings on both issues. This decision clarifies the permissibility of accent-based peremptory strikes and endorses the use of an eleven-member jury when a deliberating juror is excused for health reasons.

Summary of the Judgment

After a multi-week jury trial (interrupted by COVID protocols), the Government used six peremptory strikes: three against white venirepersons and three against Black venirepersons, including Juror 217 (a naturalized Nigerian-American with a heavy accent) and Juror 138 (a Black grandmother who initially left parts of her questionnaire blank and gave terse voir-dire answers). The district court heard Batson challenges, credited the Government’s neutral explanations (accent-based communication concerns for Juror 217; questionnaire performance and attentiveness for Juror 138), and denied relief.

Two days into deliberations, Juror 9 tested positive for COVID-19. Over defense objections, the district court found “good cause” under Rule 23(b) to excuse Juror 9 and proceed with the remaining eleven jurors. The jury returned guilty verdicts against all four appellants. On appeal, the Fourth Circuit:

• Held that the district court did not clearly err in rejecting the Batson challenges, since accent or questionnaire-based concerns—if genuine—are race-neutral bases for a peremptory strike.
• Held that the decision to proceed with an eleven-member jury under Rule 23(b) was a proper exercise of discretion and not an abuse of the district court’s authority.

Accordingly, the Fourth Circuit affirmed the convictions in all respects.

Analysis

Precedents Cited

• Batson v. Kentucky (476 U.S. 79, 1986): Established that peremptory strikes based solely on race violate the Equal Protection Clause and created a three-step burden-shifting framework.
• Hernandez v. New York (500 U.S. 352, 1991): Clarified that accent or national origin concerns may be race-neutral, but credibility determinations at step 3 are owed deference.
• Purkett v. Elem (514 U.S. 765, 1995): Affirmed the prosecution’s need only to articulate a neutral explanation at step 2; the ultimate burden always remains on the opponent to show purposeful discrimination.
• United States v. Levenite (277 F.3d 454, 2002): Recognized that a deliberating juror may be excused for illness and the jury may continue with eleven members under Rule 23(b) if good cause exists.
• United States v. Acker (52 F.3d 509, 1995): Held that replacing a juror with an alternate or proceeding with fewer jurors is proper under Rule 23(b) when a juror becomes unable to continue deliberations.

Legal Reasoning

1. Batson Challenges (Steps 2 & 3):

1. Step 1 (prima facie showing) was mooted because the Government offered neutral explanations.
2. Step 2 (facial neutrality)—the Government explained that Juror 217’s heavy accent risked impairment of deliberations and that Juror 138’s questionnaire omissions and demeanor suggested inattention. The district court found both reasons facially race-neutral.
3. Step 3 (pretext)—appellants bore the burden to show these bases were mere pretext for racial discrimination. The district court found the prosecution credible and denied any improper motivation. On appeal, under clear-error review, the Fourth Circuit upheld that credibility determination, noting the trial judge’s advantage in observing demeanor and the consistency of the Government’s concerns in voir dire and at the Batson hearing.

2. Eleven-Member Jury under Rule 23(b):

Federal Rule 23(b) permits a court, once deliberations have begun, to excuse a juror for good cause and allow the remaining eleven jurors to return a verdict—even without party stipulation. The district court weighed four options:

• Continue with eleven jurors under Rule 23(b).
• Excuse Juror 9 and seat an alternate under Rule 24.
• Postpone deliberations until Juror 9 recovers from COVID-19 (likely seven-plus days under local protocols).
• Enable remote deliberations via Zoom.

Finding prolonged delay impractical, remote deliberations unsecured for privacy and equal participation, and seating an alternate disruptive given two days of deliberations, the court concluded that excusing Juror 9 and continuing with eleven jurors was the least prejudicial and constitutionally permissible route. The Fourth Circuit reviewed for abuse of discretion and found no error.

Impact

This decision will guide future Fourth Circuit jurists in two key areas:

• Accent-Based Peremptory Strikes: Accent or communication concerns, if genuine and tied to a juror’s ability to deliberate and participate, are proper race-neutral reasons. Defense counsel must show actual pretext to prevail at step 3.
• Deliberation-Phase Juror Illness: District courts have clear authority under Rule 23(b) to excuse a juror for health reasons—even during a pandemic—and proceed with an eleven-member jury so long as good cause exists and alternative measures are less workable.

Complex Concepts Simplified

• Peremptory Strike vs. For-Cause Strike: A peremptory strike lets each side remove a juror without stating a cause; a for-cause strike requires a valid legal reason (e.g., bias).
• Batson Framework:
  1. Plaintiff shows a pattern suggesting racial discrimination.
  2. Prosecution offers a race-neutral reason (facial neutrality).
  3. Defendant proves that reason is pretextual (actual discriminatory intent).
• Federal Rule 23(b): After deliberations begin, a court may excuse one juror for good cause (illness, emergency) and allow the remaining eleven jurors to continue and return a verdict—no parties’ agreement needed.

Conclusion

United States v. Rodriguez reaffirms that:

• Accent or comprehension issues—if sincerely believed to impede jury deliberations—are legitimate, race-neutral reasons for peremptory strikes. Trial judges’ credibility findings at Batson’s final step are highly deferential and unlikely to be overturned absent clear error.
• Rule 23(b) provides a practical mechanism for continuing a criminal trial even when a juror falls ill during deliberations, balancing efficiency against the defendants’ rights to a fair and impartial jury.

The Fourth Circuit’s published opinion thus offers clear guidance on the interplay between juror communication abilities, equal protection principles, and jury-management tools during public-health disruptions.