United States v. Oscar Sorto Romero

 The court also acknowledged that while it “had some difficulty

        understanding [Juror 217],” “with some patience and clarification, I think it’s all come

        through.” Id.; see also

 (“I think that [his accent] is what it is, and I don’t find that to be

        disqualifying.”).

               Following this exchange, the Government opted not to make a formal motion to

        strike Juror 217 for cause, but later exercised a peremptory strike to excuse him. The

        defense challenged that move under Batson based on race and national origin, noting that

        the Government had used “three of their six strikes . . . to exclude . . . black Americans.

        There’s a Nigerian and then two African Americans, and we believe that’s a prima facie

        case of a Batson violation.” J.A. 1411. The court “reserve[d] on the question of whether

        there’s a prima facie case,” and asked the government to “nonetheless proceed” and discuss

        the rationale for its peremptory strike.

               The Government began by explaining that Juror 217 “had a very thick accent [that]

        was very difficult to understand.” J.A. 1415. In its view, this accent would make it “very

        difficult for him to deliberate,” prompting it to exercise a peremptory strike.

 This

        rationale was consistent with the concerns initially raised by the Government during the

        individual voir dire conducted two days prior. See J.A. 560. (“He’s certainly a little bit hard

        to understand . . . and I have . . . concern about his ability to deliberate in light of how tough

                                                        8
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        it is to understand him.”). Defense counsel responded that Juror 217 had “a lovely accent

        as a Nigerian, now an American, and I had zero difficulty understanding him.” J.A. 1415.

        He then accused the Government of “prod[ding] the [c]ourt to ask a bunch of questions to

        see if [it] could trip him for his English language impairments,” despite the fact that in

        Nigeria, “he would have grown up being an English speaker.”

 Defense counsel

        continued by arguing, without elaboration, that the Government’s proffered reason for its

        strike was “pretextual.”


               The court then stated: “I’m not so concerned about race . . . as I am about national

        origin. How one speaks the English language is often very much tied up with their national

        origin. And we make a strong practice in our system of not discriminating against people

        as a function of their national origin.” J.A. 1415–16. The court then stated that the

        Government’s strike seemed “perilously close” to being “national origin” discrimination.

        J.A. 1416. The court nevertheless acknowledged that “if someone’s facility with English

        is so strained or difficult that it truly would impair their capacity to deliberate, then even

        though that [accent] might be a product of national origin, it would still be a legitimate

        neutral, . . . justification or reason for excusing them,” but that “you’re going to have to

        persuade me that [your concerns] solely [relate to Juror 217’s] accent, because I didn’t

        detect a hint of a problem with his [] use of the language once I could penetrate and

        understand it.”


               At that point, the Government expounded on its basis for the peremptory challenge:

        “I think the interaction with this gentleman . . . was difficult. . . . [T]here were repeated

        instances where the [c]ourt had to ask him to repeat things, to clarify things that were

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        unclear. And that is why we moved to strike him.” J.A. 1416–17. The Government

        continued by emphasizing that its strike had “nothing to do with whether [Juror 217 was]

        from Nigeria or any other country.” J.A. 1417. Instead, the strike stemmed from its concern

        that he “would have trouble deliberating.” Id.; see

(stating that Juror 217 “was . . . very

difficult to understand and had . . . a lot of trouble communicating what he was trying to

say, which required things to be repeated several times”).

Before the court issued its ruling, defense counsel provided a final summary of the

additional information learned about Juror 217 during voir dire: that he was a naturalized

United States citizen; that he had received a college education in Nigeria; that he had

worked at Jackson Hewitt doing tax returns; and that he had previously lived in New York,

New York, and Randallstown, Maryland.

Ultimately, the district court held that there was no Batson violation. It first stated

that it “disagree[d] with the [G]overnment in terms of [Juror 217’s] suitability for jury

service,” before going on to find as follows:

The question that I have to decide here is what’s the [G]overnment’s
motivation in . . . exercising their peremptory challenge. And my conclusion
is that, mistaken as I believe [the Government is], I believe that genuinely is
their motivation here, that they do believe that his accent would be so
substantial and so problematic as to interfere with his capacity to
appropriately deliberate and confer with his colleagues on the jury and that
it would impair their work.

J.A. 1418–19. The court continued, “I don’t agree with that. But I don’t think it’s

ridiculous. And I do not suspect that this is a proxy for a decision that [is] actually rooted

in race or a desire to exclude [Juror 217] from serving on the jury because he has black

skin or because he is a particular national origin.” J.A. 1419. Having concluded that the

10
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Government’s “objection, as articulated here, [was] genuine,” the court declined to find a

Batson violation. Id.

2. Juror 138

Juror 138 was a Black woman who lived with her husband, daughter, and two

grandchildren. In reviewing Juror 138’s voir dire answer sheet, the court observed that she

failed to answer several questions. See J.A. 435 (informing Juror 138 that “with respect to

some of the questions you have not provided an answer”). It then read each of the

unanswered questions out loud. Each time, Juror 138 provided a short response, and the

district judge marked (and initialed) corresponding answers on the voir dire sheet. [See J.A.

435–45 (exchange between the court and Juror 138).]

The court then discussed several answers in an individualized voir dire with Juror

138, who indicated that she was not employed, and spent her time babysitting her two

grandchildren at home “five days a week while their mother works.” J.A. 441. Juror 138

also stated that she had a spouse who was retired and “help[s] with the [grandchildren],”

but did not elaborate any further. J.A. 443–44.

After the court was finished reviewing Juror 138’s answer sheet with her, it spoke

to all counsel privately. During this exchange, defense counsel asked that the court query

whether Juror 138 had any familiarity with MS-13 and also confirm that she would be

available for the entirety of the nine-week trial. The court did so, with Juror 138 confirming

that she had not heard of MS-13 and that she would have childcare covered if she was

empaneled. See J.A. 445 (“THE COURT: If you’re selected to serve on this jury of this

11
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trial, it’s probably going to last about nine weeks. Is that okay? PROSPECTIVE JUROR:

Yes. THE COURT: Somebody going to watch the kids? PROSPECTIVE JUROR: Yes.”).

At the end of jury selection, the Government used a peremptory challenge to excuse

Juror 138, to which Appellants raised a Batson objection. As it did with Juror 217, the

district court reserved the question of whether Appellants established a prima facie case

and instead inquired into the rationale underlying the Government’s strike.

The Government explained that Juror 138 “actually missed responding to a number

of questions,” and that when the court went through each of the missed questions with her,

“[h]er demeanor during the inquiry, she did not seem particularly interested.” J.A. 1412. It

further explained that “in terms of her addressing the questions, I think in the written

questionnaire she had not answered several questions and required the [c]ourt to walk her

through those.” J.A. 1413. In the Government’s view, Juror 138’s “approach to those

questions and/or her failure to respond to them just . . . displayed a general lack of interest

in the process.” Id. It continued by noting that “we have a 17-page verdict questionnaire

that’s going to require someone to pay pretty close attention to it, so we thought that was

certainly a concern for her.” Id. The Government also flagged Juror 138’s role as a

caretaker as a secondary issue as it related to her availability for the lengthy trial.

The court asked if defense counsel wanted to be heard in response. Sandoval

Rodriguez’s counsel responded only by noting that Juror 138’s husband would be able to

babysit in the event she was unavailable. But none of Appellants’ counsel said anything

further in support of their Batson motion. They did not, for instance, argue that the

Government’s explanations were pretextual. Nor did they say anything to counter its

12
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arguments concerning Juror 138’s demeanor or failure to respond to several questions on

the questionnaire.

After hearing the Government’s explanations and inviting Appellants’ counsel to

respond, the district court rejected the Batson challenge: “I accept the [G]overnment’s

explanation for why they struck the juror, less on the child care. . . . But I accept the

[G]overnment’s representations as to their reasons for excusing her based on

her . . . performance on the questionnaire, . . . [and capacity] to follow[] along with

somewhat complex issues and so forth.” J.A. 1414. The court continued by noting that it

was “[c]ertainly . . . not finding that [Juror 138] lacked the acuity or the ability to serve as

a juror.” Id. Rather, it was simply “prepared to accredit the [G]overnment’s assessment to

that effect, and that that is their justification for why they disfavored her [as a] juror and

that their decision with respect to her was not rooted in race.” J.A. 1414–15.

With a jury empaneled, the trial began and lasted for roughly thirty-four days

(excluding deliberations) over the next three months. This length stemmed, in part, from

the COVID-19 protocols employed at that time by the court. 2 The case was sent to the jury

on Thursday, January 20, 2022. The three remaining alternate jurors were conditionally

excused that same day, with the district court advising them that, “[if] during the course of

2
For instance, one juror and two defendants tested positive for the virus in
December. And at the time, there was a Standing Order prohibiting anyone who had tested
positive for COVID-19 from entering the courthouse within five days of their infection.
These positive tests therefore necessitated an extension of the already-scheduled holiday
break. The trial later resumed without incident.
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deliberations a juror were to become ill . . . or . . . otherwise unable to serve until the

conclusion of deliberations . . . , then the [c]ourt would reach out and contact the next

alternate in line and summon that person back to the courthouse to join the

jury . . . to . . . resolve this case.” J.A. 1454. The twelve-member jury proceeded to

deliberate for two full days before breaking for the weekend.

On Sunday, January 23, 2022, Juror 9 contacted the Clerk of Court to report that she

had tested positive for COVID-19. She reported that she started to feel poorly on Friday

after the jurors were sent home, and that her “condition continued to deteriorate Saturday

into Sunday, when she felt appreciably worse.” J.A. 1496. Juror 9 nevertheless inquired

whether “Zoom would be an option to allow us to close out,” reporting that “we are so very

close to the finish.” J.A. 1497. 3 In response, the district court instructed the clerk to advise

Juror 9 that her property at the courthouse would be secured and that the clerk would “be

back in touch after the jury is excused in this case.” J.A. 1497–98. The court also directed

that all three alternate jurors return to the courthouse on Monday in case there were

“additional positives . . . in light of No. 9 going positive.” J.A. 1499. The eleven remaining

jurors each took a COVID-19 test on Monday morning and all tested negative.

After confirming that there were no further COVID infections, the court sought

input from the parties regarding the appropriate path forward. The various options given

were: (1) “proceed under [Federal] Rule [of Criminal Procedure] 23[(b)] now with just

3
Pursuant to the district court’s Standing Order on COVID-19, Juror 9 was
instructed not to come to the courthouse. Assuming that she was symptom-free by then,
she would have been permitted to return the following Saturday at the earliest—i.e., a week
later.
14
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eleven jurors”; (2) “proceed under Rule 24” by replacing Juror 9 with an alternate juror;

(3) “postpone the continuation of deliberations until juror No. 9 is restored to health”; or

(4) allow Juror 9 to participate via Zoom. J.A. 1516.

The Government argued in favor of proceeding with an eleven-member jury to

avoid additional delay, highlighting the “significant deliberations and . . . work already

done by the existing jury.” J.A. 1501; see id. (noting that “the latest communication from

juror No. 9 [indicated] that the jury has done significant work and made significant progress

already in this case”). Appellants disagreed, arguing that Juror 9 should be given time to

get well and resume in-person deliberations, or otherwise be replaced by an alternate. They

did, however, acknowledge that the district court had discretion to excuse Juror 9 and

proceed with the eleven remaining jurors.

The district court weighed its options, and ruled that good cause existed to excuse

Juror 9 and proceed under Rule 23 with the remaining eleven jurors. The court first

observed that there was “great uncertainty” about when Juror 9 would test negative and be

symptom-free for at least twenty-four hours, such that she could return to the courthouse

to resume deliberations. It therefore concluded that “waiting for juror No. 9 to recover is

not a practical option.” J.A. 1514; see J.A. 1515 (noting that waiting for Juror 9 to recover

would essentially “require the suspension of this deliberation for at least seven days,” given

COVID protocols). The court next rejected the possibility of deliberating via Zoom,

concluding that it did not have “sufficient assurances that the deliberations would remain

private,” nor was it sufficiently assured that all jurors “would be on equal footing and have

an equal opportunity to be heard and contribute” through such a medium. J.A. 1513. The

15
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court found that seating an alternate juror to replace Juror 9 was a “less attractive option,”

in view of the extensive deliberative process already undertaken by the current jury. J.A.

1514. And the court rejected the possibility of declaring a mistrial since there were “options

available to it, short of that Draconian response, that are fully consistent with law and due

process.” J.A. 1515–16.

Having rejected all other options, the court concluded that proceeding under Rule

23 with an eleven-person jury was the best course of action. In reaching this conclusion, it

leaned in part on the fact that the jury was already “well along in the deliberative process

by virtue of the fact that they have spent essentially two full days deliberating . . . and [that]

the nature of their questions suggests that they are deep into the process.” Id.

When the jurors returned to the courtroom, the district court informed them that

Juror 9 had been excused from the jury and that the remaining jurors were to continue their

deliberations subject to the court’s previous instructions. It also reiterated that the jury

should “take the time that [it] need[s] to fairly consider the evidence that has been

presented . . . , and to take the time necessary to render fair and accurate verdicts.” J.A.

1524–1525. The jury then resumed deliberations.

Later that day, the jury notified the clerk that they had reached a verdict. It found

Parada, Portillo Rodriguez, and Sandoval Rodriguez guilty of all charged offenses. It found

Sorto Romero guilty of most offenses, but acquitted him of charges related to one of the

predicate murders.

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The court later sentenced Portillo Rodriguez, Sandoval Rodriguez, and Sorto

Romero to life imprisonment, and Parada to fifty years’ imprisonment. All four timely

appealed, and this Court has jurisdiction pursuant to

28 U.S.C. § 1291

.



                                                      II.

               Appellants raise two main arguments on appeal. First, they argue that the district

        court clearly erred when it rejected their Batson challenges to the Government’s

        peremptory strikes of Jurors 217 and 138. And second, they contend that the district court

        abused its discretion when it opted to proceed with an eleven-member jury. Before turning

        to the substance of these arguments, we set out the applicable standards of review.

                                                      A.

               A district court’s Batson finding—i.e., its determination of whether a peremptory

        strike was exercised for a prohibited reason—is reviewed only for clear error. United States

        v. Green,

599 F.3d 360, 377

 (4th Cir. 2010). Such ample deference is due because a district

        court’s finding on discrimination turns largely on credibility determinations. See

        Hernandez v. New York,

500 U.S. 352

, 364–65 (1991) (plurality opinion); Snyder v.

        Louisiana,

552 U.S. 472, 477

 (2008) (noting that trial courts play “a pivotal role in

        evaluating Batson claims,” particularly because the “best evidence” of discriminatory

        intent “often will be the demeanor” and “credibility” of the attorney striking the juror).

               A court reviewing for clear error may not reverse a lower court’s findings simply

        because it would have reached a different outcome. United States v. Charboneau,

914 F.3d 906, 912

 (4th Cir. 2019) (citation omitted). Instead, reversible clear error only exists where,

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        after considering all evidence, the reviewing court “is left with the definite and firm

        conviction that a mistake has been committed.”

 (cleaned up).

                                                     B.

               We review a district court’s decision to proceed with an eleven-person jury under

        Federal Rule of Criminal Procedure 23 for abuse of discretion. United States v. Levenite,

277 F.3d 454, 464

 (4th Cir. 2002); United States v. Acker,

52 F.3d 509, 515

 (4th Cir. 1995).

        “Under the abuse of discretion standard, this Court may not substitute its judgment for that

        of the district court.” United States v. Vidacak,

553 F.3d 344, 348

 (4th Cir. 2009) (quoting

        United States v. Mason,

52 F.3d 1286, 1289

 (4th Cir. 1995)). Rather, we must determine

        “whether the [district] court’s exercise of discretion, considering the law and the facts, was

        arbitrary or capricious.”

 (quoting Mason,

52 F.3d at 1289

).



                                                     III.

               Armed with the applicable standards of review, we now turn to Appellants’ first

        argument: that the district court committed clear error when it rejected their Batson

        challenges to the Government’s peremptory strikes of Jurors 217 and 138. The Government

        disagrees, contending that the district court did not clearly err in crediting as neutral and

        legitimate its proffered reasons for these strikes. Cognizant of our limited role at this

        juncture, we agree with the Government as we do not discern any clear error on the record

        before us.

               In Batson v. Kentucky,

476 U.S. 79, 89

 (1986), the Supreme Court held that “the

        Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on

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        account of their race.” When announcing this rule, the Supreme Court also outlined a three-

        step burden-shifting framework for use in determining whether that rule had been violated.

        See

 at 93–98.

               First, the party alleging discrimination in the exercise of a peremptory challenge

        must establish a prima facie case of intentional discrimination. Hernandez,

500 U.S. at 358

 (“[T]he defendant must [first] make a prima facie showing that the prosecutor has

        exercised peremptory challenges on” a prohibited basis). Relevant circumstances may

        include a pattern of excluding jurors of a particular racial group, and the prosecutor’s

        questions during voir dire. See Batson,

476 U.S. at 89

.

               Second, if the requisite showing has been made, the burden shifts to the prosecutor

        to articulate a race- and/or national origin-neutral explanation for striking the jurors in

        question. 4 See Hernandez, 500 U.S. at 358–59 (citing Batson, 476 U.S. at 97–98). This

        explanation need not be persuasive or plausible—just neutral. United States v. Barnette,

211 F.3d 803, 812

 (4th Cir. 2000). An explanation will be “deemed . . . neutral” so long as

        “a discriminatory intent” is not “inherent in the prosecutor’s explanation.” Hernandez, 500


               4
                  While this Court has yet to explicitly extend Batson to prohibit peremptory
        challenges made on the basis of national origin, we have little issue finding that it does.
        Batson draws upon the Equal Protection Clause, which, in turn, has been held to prohibit
        national origin-based discrimination. See Batson,

476 U.S. at 89

 (holding that the “State’s
        privilege to strike individual jurors through peremptory challenges[] is subject to the
        commands of the Equal Protection Clause”); see, e.g., United States v. Stephens,

514 F.3d 703, 709

 (7th Cir. 2008) (“The Constitution prohibits the use of peremptory challenges to
        intentionally discriminate against jurors on the basis of protected characteristics such as
        race, national origin, and gender.”); Hayden v. Cnty. of Nassau,

180 F.3d 42, 48

 (2d Cir.
        1999) (“To state a claim for an equal protection violation, appellants must allege that a
        government actor intentionally discriminated against them on the basis of race, national
        origin, or gender.”).
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        U.S. at 360. And like the other steps of the Batson inquiry, this Court affords “great

        deference to the trial judge in making the determination as to whether the proffered reason

        for the challenge is . . . neutral.” Barnette,

; see United States v. Blotcher,

142 F.3d 728, 731

 (4th Cir. 1998) (“The district court’s determination of whether the

        proffered explanation for the use of a peremptory challenge is pretextual and whether there

        has been purposeful racial discrimination largely turn[s] on credibility” and is therefore

        owed “great deference”).

               And third, if the prosecutor offers a race- or national origin-neutral basis for the

        exercise of the peremptory challenges, the “trial court then has the duty of deciding whether

        the defendant has carried his burden [of] prov[ing] purposeful discrimination.” Barnette,

; see Hernandez,

500 U.S. at 362

. This step often boils down to whether

        the district court is persuaded that the Government’s proffered neutral reason for its strike

        is its actual motivation. See United States v. Wiley,

93 F.4th 619, 629

 (4th Cir. 2024)

        (noting that at Batson’s third step, the defendant “had to show that [the government’s

        legitimate] explanation was ‘merely pretextual’ and that the government’s ‘real reason’ for

        striking the jurors was because of their race”); United States v. Taylor,

92 F.3d 1313, 1326


        (2d Cir. 1996) (“In the typical peremptory challenge inquiry, the decisive question will be

        whether counsel’s race-neutral explanation for a peremptory challenge should be

        believed.”). Given the fact-intensive nature of this inquiry, the district court’s decision on

        this issue is again accorded substantial deference. See Hernandez,

500 U.S. at 364


        (reiterating that “the trial court’s decision on the ultimate question of discriminatory intent

        represents a finding of fact” subject only to clear error review); Blotcher,

142 F.3d at 731


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        (emphasizing the “great deference” owed to district courts’ determinations of “whether

        there has been purposeful racial discrimination”).

               One final point: once a prosecutor has offered a race- or national origin-neutral

        explanation for the peremptory challenges and the trial court has ruled on the ultimate

        question of intentional discrimination, “the preliminary issue of whether the defendant had

        made a prima facie showing becomes moot.” Hernandez,

. In other words,

        in cases where the prosecutor offers a neutral explanation for its peremptory strikes, the

        Batson analysis proceeds directly to steps two and three. See Wiley,

93 F.4th at 629


        (“Because the government offered a race-neutral explanation in the district court, we

        assume, without deciding, that [the defendant] established a prima facie showing of

        discrimination at step one.”).

               With this framework in mind, we turn now to consider the district court’s rejection

        of Appellants’ Batson challenges.

                                                     A.

               Beginning with Juror 217, the district court explicitly “reserve[d] on the question of

        whether [Appellants established] a prima facie case” of intentional discrimination. J.A.

        1412. It instead “ask[ed] the [G]overnment . . . to nonetheless proceed” to the second step

        of the Batson inquiry—proffering a neutral reason for the strike.

 This decision by the




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        district court rendered moot “the preliminary issue of whether [Appellants] had made a

        prima facie showing.” Hernandez,

. 5

               Moving to the second step, the Government articulated the following reasoning for

        its strike of Juror 217: “He had a very thick accent, was very difficult to understand. As we

        said [before], we thought that it would be very difficult for him to deliberate. And as a

        result . . . we thought he should be stricken.” J.A. 1415. After initially expressing some

        concern with this rationale, the district court went on to recognize that “if someone’s

        facility with English is so strained or difficult that it would truly impair their capacity to

        deliberate, then even though that language situation might be a product of national origin,

        it would still be a legitimate neutral . . . justification . . . for excusing them.” J.A. 1416.

        This exchange satisfied the Government’s burden on step two of the Batson inquiry.

               As previously noted, the explanation itself need not be persuasive or plausible—just

        facially neutral. Barnette,

. And here, the district court deemed facially

        neutral the Government’s concern that Juror 217’s accent could impact his ability to

        effectively deliberate. Its decision to do so was not clearly erroneous. To be sure, there is

        nuance to the question of whether accent-based peremptory strikes are permissible. And

        the answer to that question will necessarily vary based on the specifics of any given case.

        Hernandez, 500 U.S. at 364–65 (emphasizing the fact- and credibility-intensive nature of



               5
                 The Government spills much ink arguing otherwise. See Resp. Br. 31–33. But it
        cannot avoid the plain, contrary language of Hernandez.

; see also United
        States v. Lane,

866 F.2d 103, 105

 (4th Cir. 1989) (“[T]his Court will not address the
        question of whether the defendant established a prima facie showing to satisfy Batson
        where the prosecutor articulated reasons for his strikes.”)
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        the Batson inquiry). But where, as here, the accent-based peremptory strike stems from

        otherwise legitimate concerns—i.e., a juror’s ability to effectively deliberate and interact

        with the other jurors—we are satisfied that it facially qualifies as race- and national origin-

        neutral. Other circuit courts to address this issue have recognized the same. See United

        States v. Changco,

1 F.3d 837, 840

 (9th Cir. 1993) (“If the prosecutor had doubts about the

        [juror’s] ability . . . to . . . deliberate effectively with the other jurors, she had ample grounds

        for striking them.”); cf. Iyoha v. Architect of the Capitol,

927 F.3d 561, 567

 (D.C. Cir.

        2019) (noting that, while “a foreign accent and national origin are often intertwined,” an

        employee’s accent might nevertheless “be a legitimate basis for an employment action” if

        it “interfere[s] with their ability to do their job”); Carino v. Univ. of Okla. Bd. of Regents,

750 F.2d 815, 819

 (10th Cir. 1984) (suggesting that accent or “language difficulties that

        interfere with performance of [an employee’s] duties may be legitimately considered in

        employment decisions”).

               Turning to Batson’s final step, the district court was required to decide the ultimate

        question of “whether the defendant . . . carried his burden [of] prov[ing] purposeful

        discrimination.” Barnette,

; see Purkett v. Elem,

514 U.S. 765, 768

 (1995)

        (“[T]he ultimate burden of persuasion regarding racial motivation rests with, and never

        shifts from, the opponent of the strike.”). As previously noted, this step frequently centers

        on whether the district court finds that the Government’s proffered neutral reason for its

        strike is its actual motivation. See Wiley,

93 F.4th at 629

; United States v. Taylor,

92 F.3d 1313, 1326

(2d Cir. 1996) (“In the typical peremptory challenge inquiry, the decisive

question will be whether counsel’s race-neutral explanation for a peremptory challenge

23
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should be believed.”). After grappling with the issue, the district court credited the

Government’s race-neutral explanation. See J.A. 1419 (“I do not ascribe [an improper]

motivation to [the Government’s attorneys] in these circumstances.”). A review of the

record establishes that this decision was not clearly erroneous.

To begin, the district court—on numerous occasions—had to repeat Juror 217’s

answers back to him to ensure it understood him correctly. [See, e.g., J.A. 551–59.] The

transcript also reflects various instances in which the district court had to ask Juror 217 to

repeat his answers. [See, e.g., J.A. 554–55, 558–59.] But perhaps most tellingly, the district

court expressly acknowledged that “[t]here’s no doubt that [Juror 217] has what we would

describe as a powerful Nigerian accent . . . . I have had some difficulty understanding him

as he spoke with his accent, but with some patience and clarification, I think it’s all come

through.” J.A. 560 (emphases added). The court then reiterated this point on multiple

occasions. See J.A. 1416 (“I didn’t detect a hint of a problem with his actual use of the

language once I could penetrate the accent and understand it.” (emphasis added)); J.A.

1418 (“I didn’t find his accent so strong and so powerful as to interfere with my ability to

understand him, particularly if I was prepared to make an effort to really try hard to listen

to him.” (emphases added)). 6 These exchanges lend support to the Government’s purported

rationale for its strike—that Juror 217’s accent could have impeded his ability to

thoroughly participate in deliberations. And it is a dubious proposition to suggest that Juror

6
Also notable is that the Government’s concerns with Juror 217 remained
consistent. Indeed, it flagged the potential accent/communication concern immediately, see
J.A. 560, and provided the same as the rationale for its peremptory strike, see J.A. 1415.
24
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217’s co-jurors would have the district court’s “patience” or willingness to “make an effort

to really try hard to” “penetrate [his] accent and understand [him].” J.A. 1416.

Ultimately, this case is no exception from the general rule that there is seldom much

evidence on the “decisive question” of the Batson inquiry—i.e., whether counsel’s “neutral

explanation for [its] peremptory challenge should be believed.” Hernandez,

500 U.S. at 365

. This rule holds particularly true on appeal, as “the best evidence often will be the

        demeanor [and credibility] of the attorney who exercises the challenge.”

 For that reason,

        courts have repeatedly emphasized that evaluation of “the prosecutor’s state of mind based

        on demeanor and credibility lies peculiarly within the trial judge’s province.”

 (cleaned

        up). Here, the district court thoughtfully weighed such considerations before issuing its

        ruling: “I believe that genuinely . . . is their motivation here, that [Juror 217’s] accent would

        be so substantial . . . as to interfere with his capacity to appropriately deliberate and confer

        with his colleagues on the jury and that it would impair their work.” J.A. 1419. This finding

        largely ends this Court’s inquiry on appeal. See Hernandez,

500 U.S. at 364

 (explaining

        that “the trial court’s decision on the ultimate question of discriminatory intent represents

        a finding of fact of the sort accorded great deference on appeal”). 7


               7
                 Contrary to Appellants’ argument, it is immaterial that the district court personally
        disagreed with the Government’s assessment of Juror 217’s accent. In fact, the district court
        explicitly acknowledged as much: “I disagree with the [G]overnment in terms of his
        suitability for jury service. . . . But that doesn’t determine the issue. The question that I
        have to decide here is what’s the [G]overnment’s motivation.” J.A. 1418; Hernandez,

500 U.S. at 364

(noting that Batson’s third step involves determining whether the proponent of
a strike “intended to discriminate”). The critical point is instead that, even though the
district court disagreed with the Government, it found that the Government lacked the
requisite discriminatory intent. See J.A. 1419 (“I don’t agree with [the Government’s
(Continued)
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And in any event, we find unpersuasive Appellants’ bases for arguing that the

Government’s strike of Juror 217 was pretextual.

First, Appellants press aspects of Juror 217’s personal background demonstrating

that Juror 217 was proficient in English. But whether Juror 217 was proficient in English

doesn’t impact other jurors’ ability to understand him.

Second, Appellants observe that the transcript of the proceedings below lacks

notations from the court reporter indicating that Juror 217 was “incomprehensible.” Yet,

we wouldn’t expect such notations when the presiding judge frequently repeated Juror

217’s statements. Appellants also note that one of their lawyers asserted that he had no

difficulty understanding Juror 217, but this self-serving statement doesn’t persuade us that

there weren’t issues understanding Juror 217 given other statements in the record.

Third, Appellants insist that the strike was pretextual since Defendants and Juror

217 are all foreign-born and members of racial or ethnic minority groups. But Appellants

paint with too wide a brush. There is no evidence that the Government thought that Juror

217 would be biased toward Appellants simply because he was from Nigeria and they were

from El Salvador.

Fourth, Appellants point to the Government asking the district court to conduct

additional voir dire into Juror 217’s language abilities. We view this fact not as signaling

the Government’s discriminatory intent, but as indicating the Government’s desire to

rationale]. But I don’t think it’s ridiculous. And I don’t suspect that this is a proxy for a
decision that is actually rooted in race or a desire to exclude [Juror 217] . . . [on the basis
of his] national origin. I do not ascribe that motivation to [the Government].”).

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understand better Juror 217’s ability to participate effectively in jury deliberations. We

similarly don’t see discrimination in the Government’s erroneous passing assertion that it

made a for-cause strike. The assertion came after several days of jury selection

proceedings, and the prosecutor appears to have been speaking from memory.

Lastly, Appellants suggest that Black venirepersons were struck at a rate two-and-

a-half times greater than that of white venirepersons. This statistic is “both selective and

uninformative.” Allen v. Lee,

366 F.3d 319, 330

 (4th Cir. 2004) (en banc). Seventy-eight

        people participated in voir dire, and 27% of those venirepersons were nonwhite. After for-

        cause challenges, there were 27.5% nonwhite venirepersons. The government struck 27%

        of qualified nonwhite venirepersons. And the empaneled jury had 41.7% Black jurors. The

        stable percentage of nonwhite representation at each stage of the jury selection process cuts

        against Defendants’ statistical argument. See United States v. Runyon,

994 F.3d 192, 212


        (4th Cir. 2021); United States v. Mitchell,

877 F.2d 294, 303

 (4th Cir. 1989).

               Even considered holistically, the indicia of discrimination Appellants ascribe to the

        Government don’t convince us that the district court erred. Therefore, because the record

        simply does not leave us “with [a] definite and firm conviction that a mistake has been

        committed,” Charboneau,

914 F.3d at 912

, we affirm the district court’s rejection of

        Appellants’ Batson challenge as to the Government’s peremptory strike of Juror 217.

                                                     B.

               We turn now to consider Appellants’ Batson challenge to the strike of Juror 138.

        Just as it did with Juror 217, the district court “reserve[d] on the question of whether

        [Appellants established] a prima facie case” of intentional discrimination, J.A. 1412, and

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        instead directed “the [G]overnment . . . to nonetheless proceed” to the second step of the

        Batson inquiry.

 In doing so, it again mooted “the preliminary issue of whether

        [Appellants] had made a prima facie showing” of discrimination. Hernandez,

; see Lane,

866 F.2d at 105

.

               At step two, the Government indicated that it struck Juror 138 out of concerns over

        (1) her interest level in the proceedings and (2) her ability to find alternate childcare

        arrangements, particularly given that she was the primary caregiver for her grandchildren

        on weekdays. 8 [See J.A. 1412.] And at step three, the district court “accept[ed] the

        government’s explanation for why they struck [Juror 138].” J.A. 1414. It did so “less on

        the childcare,” and instead “accept[ed] the government’s representations . . . based on

        [Juror 138’s] . . . performance on the questionnaire, her capacity to answer the questions,

        follow along with somewhat complex issues and so forth.”

 The court then clarified that

        it was not “finding that [Juror 138] lacked the . . . ability to serve as a juror,” rather, that it

        was simply “accrediting the government’s assessment to that effect,” and “that that is their

        justification for why they disfavored her.” J.A. 1414–15.

               On the limited record before us, we once again discern no clear error in the district

        court’s conclusion. Certainly, the transcript does reflect that Juror 138 gave many curt

        answers during voir dire. The transcript likewise reflects that she failed to properly fill out


               8
                 Appellants largely declined to challenge either rationale as pretextual, noting only
        that Juror 138 seemed to have coverage for her childcare responsibilities should she be
        empaneled as a juror. We conclude that Appellants forfeited their ability to argue that the
        Government’s motives as to Juror 128 were pretextual and decline to exercise our
        discretion to revive this forfeited issue. United States v. Laffitte,

121 F.4th 472, 484

 (4th
        Cir. 2024).
                                                        28
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        the juror questionnaire. Beyond that, however, we are largely left with the district court’s

        assessment of whether counsel’s “race-neutral explanation for [its] peremptory challenge

        should be believed.” 9 Hernandez,

500 U.S. at 365

. As already noted, this assessment is

        primarily based on factors that are not easily reviewable on appeal. See

 And for reasons

        like those stated with respect to Juror 217, we simply have no reason to doubt the district

        court’s findings on this matter, particularly given its crucial role in making credibility-

        related determinations. See

Accordingly, we find no clear error and thus affirm the

district court’s rejection of Appellants’ Batson challenge to the Government’s peremptory

strike of Juror 138.

***

On appeal, we are tasked with the limited role of deciding whether the district court

clearly erred in its Batson analysis. And here, it avoided any such error by carefully

considering the issues and providing thoughtful reasons for rejecting Appellants’ Batson

challenges. So, while a venireperson’s accent could potentially be wielded as an

impermissible proxy for race or national origin, we find no clear error in the district court’s

contrary finding on this record. We thus affirm the district court’s rejection of Appellants’

Batson challenge to the Government’s peremptory strikes of Jurors 217 and 138.

On this point, it is also worth reiterating the actual racial composition of the jury:
9

seven white jurors and five Black jurors. This—and the other statistical evidence provided
by the Government—lend further support to the district court’s findings that the
Government did not discriminate in its use of peremptory strikes.
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IV.

The second issue on appeal relates to the district court’s decision to dismiss Juror 9

and proceed with an eleven-member jury. Appellants argue that this decision was an abuse

of discretion. The Government disagrees, emphasizing that the district court thoroughly

considered all alternative options and reasonably concluded that proceeding with an

eleven-member jury was the best approach. Having reviewed the record, we agree with the

Government and therefore affirm the district court’s decision.

Federal Rule of Criminal Procedure 23 governs this issue. It provides, in relevant

part, 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). We have applied Rule 23 on various occasions

to affirm the excusal of a single juror during deliberations. See, e.g., Levenite, 277 F.3d at

464–65 (permitting an eleven-person jury under Rule 23 where a juror fell ill with the flu

during deliberations); Acker, 52 F.3d at 515–16 (permitting an eleven-person jury under

Rule 23 where a juror was excused for an injury and it was unclear when she would be able

to return); United States v. Green,

260 F. App’x 550, 551

 (4th Cir. 2007) (permitting an

        eleven-person jury where a juror was excused for the death of her grandmother). We see

        no reason to stray from that precedent here.

               To begin, Rule 23(b)—and our case law—explicitly permit the course of action

        taken by the district court. See Fed. R. Crim. P. 23(b); see, e.g., Levenite, 277 F.3d at 464–

        65. The more relevant question, then, concerns whether the district court sufficiently

        considered and explained its decision. See Vidacak,

553 F.3d at 348

 (noting that the

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        determinative question on abuse of discretion review is “whether the [district] court’s

        exercise of discretion . . . was arbitrary or capricious”). A review of the record confirms

        that it did. To that end, the district court found good cause to dismiss Juror 9 and proceed

        with an eleven-person jury only after soliciting the opinions of counsel and thoroughly

        considering all possible alternatives. See J.A. 1499 (“I’ll take counsel’s views on the

        appropriate way forward and then . . . we’ll make a decision about which way we’re going

        to go.”); see also J.A. 1499–1511 (discussion with counsel regarding potential paths

        forward).

               Specifically, the court considered: (1) “proceed[ing] under Rule 23 with just

        [eleven] jurors,” J.A. 1516; (2) “proceed[ing] under Rule 24” by replacing Juror 9 with an

        alternate juror, id.; (3) “postpon[ing] the continuation of deliberations until [Juror 9] is

        restored to health,” id.; and (4) allowing Juror 9 to participate via Zoom. The court then

        ranked these in terms of desirability, noting the pros and cons of each. See J.A. 1514–16.

        After considering all these avenues, it concluded that “[t]he best option [was] to proceed

        with [eleven] jurors” under Rule 23. J.A. 1516; see J.A. 1518 (“Taking the circumstances

        of our case and our situation into specific account, I conclude that not only do I have the

        discretion to proceed [under Rule 23(b)], but that this is the correct way forward among

        the various options that are available.”). Nothing about the process the district court

        undertook, or its explanation, strikes us as “arbitrary or capricious.” Vidacak,

553 F.3d at 348

. We therefore affirm its decision to excuse Juror 9 and permit an eleven-member jury

        to continue deliberations.



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                                                   V.

              For the foregoing reasons, the district court’s judgment is



                                                                                 AFFIRMED.




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        WYNN, Circuit Judge, concurring:

               I concur in the majority opinion but write separately to point out that our circuit

        stands alone by employing deferential review at Batson’s step two.

               At step two of Batson, the trial court determines whether the proffered reason for a

        peremptory strike is facially race- and national-origin-neutral. As a Supreme Court

        plurality put it, this question is “a matter of law,” Hernandez v. New York,

500 U.S. 352

,

        359–60 (1991) (plurality opinion), which suggests that appellate courts should review

        Batson’s second step de novo. Accordingly, all of the other federal courts of appeals that

        have addressed this question review step two de novo. See United States v. Williams,

264 F.3d 561, 571

 (5th Cir. 2001) (“We analyze the Government’s proffered racially neutral

        explanation as a legal issue de novo.”); Paulino v. Harrison,

542 F.3d 692, 699

 (9th Cir.

        2008) (“At Batson’s second step, the question whether the state has offered a race-neutral

        reason is a question of law that we review de novo.” (quotation marks omitted)); United

        States v. Sneed,

34 F.3d 1570, 1580

 (10th Cir. 1994) (“We review de novo whether the

        prosecutor’s explanation is facially race neutral.”).

               Our outlier stance arises from our decision in United States v. Barnette where we

        said that we should grant “great deference to the trial judge in making the determination as

        to whether the proffered reason for the challenge is race neutral” at step two.

211 F.3d 803, 812

 (4th Cir. 2000). But in so holding, we relied on a step three case. See