United States v. Johnny Brown, 784 F.3d 1301

Johnny Brown was tried on 14 counts (wire fraud, false statements to a financial institution, tax evasion); after a five-day trial a 12-person jury and two alternates were empaneled.
The jury deliberated for over a day and submitted five substantive questions to the court before one juror became ill during deliberations and asked to be excused.
The court excused the ill juror for good cause, denied Brown’s request to seat an available alternate, and directed the remaining 11 jurors to continue under Fed. R. Crim. P. 23(b)(3).
The 11-member jury returned guilty verdicts on all counts later that day; Brown appealed arguing Rule 23(b)(3) does not permit proceeding with 11 jurors when alternates are available and, alternatively, that the court abused its discretion by doing so.
The Ninth Circuit reviewed the Rules’ interpretation de novo and the district court’s exercise of discretion for abuse, affirmed, and held (1) courts may proceed with 11 jurors under Rule 23(b)(3) even if alternates are available, and (2) the district court did not abuse its discretion given the length/complexity of trial and more-than-a-day deliberations with five substantive questions.

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Brown)	Held
Whether Rule 23(b)(3) authorizes proceeding with 11 jurors after a juror is excused during deliberations when alternates remain available	Rule 23(b)(3) permits a court to proceed with 11 jurors even if alternates are available	Rule 23(b)(3) only applies when alternates have been discharged and thus a court must seat an available alternate before allowing an 11-juror verdict	The Rules’ text and advisory notes allow courts discretion to proceed with 11 jurors despite available alternates; affirmed
Whether the district court abused its discretion by declining to seat an alternate and instead proceeding with 11 jurors in this case	Proceeding with 11 jurors was reasonable because deliberations had been substantial and seating an alternate would have required restarting deliberations	Seating an alternate is feasible and not unduly burdensome given trial delays; replacing juror would better protect fairness	No abuse of discretion: jury had deliberated over a day, asked five substantive questions, and substituting an alternate would have required restarting deliberations and risked prejudice; affirmed

United States v. Hively, 437 F.3d 752 (8th Cir. 2006) (upholding proceeding with 11 jurors rather than seating an alternate after extended deliberations)
United States v. Levenite, 277 F.3d 454 (4th Cir. 2002) (affirming 11-juror verdict where juror excused after multi-day deliberations in a complex multi-count case)
United States v. Mullins, 992 F.2d 1472 (9th Cir. 1993) (discussing pre-1999 practice of discharging alternates at start of deliberations)
United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991) (finding lack of "just cause" to excuse a juror where brief absence was likely; distinguishable here)
United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975) (noting coercive effect on an alternate joining ongoing deliberations)
Weeks v. Angelone, 528 U.S. 225 (2000) (presumption that juries follow court instructions)