United States v. Brown

Under Federal Rule of Criminal Procedure 23(b)(3), courts have discretion to proceed with 11 jurors after excusing a juror for good cause during deliberations, even when alternates are available.

Johnny Brown was convicted of 14 counts of wire fraud, asserting fabricated statements to a financial institution, and tax evasion. During deliberations after a five-day trial, one of the 12 jurors became ill, and had to be excused. Brown requested that an alternate juror take the excused juror’s place, instead of proceeding with 11 jurors. The district court, under Federal Rule of Criminal Procedure 23(b)(3), denied Brown’s request, and proceeded with 11 jurors. On appeal, the Ninth Circuit determined whether the district court abused its discretion by proceeding with only 11 jurors after having excused one juror for a good cause during deliberations. Rule 23(b)(3) states that the court may “order for a Jury of 11 . . . if the court finds good cause to excuse a juror.” The panel held that the language of Rule 23(b)(3) gives the district court discretion to proceed with 11 jurors after having excused a juror during deliberations, even with alternates available. The panel also found that under Federal Rule of Criminal Procedure 24(c), when substituting an alternate juror, the jury must start deliberations over, which would have created an even longer deliberation in this case, since the jury had already taken over a day to deliberate before the juror became ill. Due to these circumstances, the panel concluded that the district court had not abused its discretion, as justice was better served by proceeding with 11 jurors. AFFIRMED.