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United States v. Brown

United States Court of Appeals, Ninth Circuit

May 1, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHNNY BROWN, AKA Mickey, Defendant-Appellant

Argued and Submitted, Portland, Oregon March 3, 2015

Appeal from the United States District Court for the District of Oregon. D.C. No. 3:06-cr-000385-KI-1. Garr M. King, District Judge, Presiding.

SUMMARY [*]

Criminal Law

Affirming a criminal judgment, the panel held that courts have discretion under Fed. R. Crim. P. 23(b) to proceed with 11 jurors after excusing a juror for good cause during deliberations, even when alternates are available.

The panel also held that the district court did not abuse its discretion by proceeding with 11 jurors, where the jury had deliberated for more than a day and had asked and received answers to five substantive questions. The panel wrote that if the court had seated an alternate, it would, under Fed. R. Crim. P. 24(c)(3), have had to direct the jury to begin deliberations anew, adding at least a day to the proceedings and imposing on the jurors the difficult task of discarding any conclusions they had already reached.

Michael R. Levine (argued), Levine & McHenry LLC, Portland, Oregon, for Defendant-Appellant.

S. Amanda Marshall, United States Attorney, District of Oregon; Kelly A. Zusman (argued), Appellate Chief, Assistant United States Attorney, Portland, Oregon, for Plaintiff-Appellee.

Before: Raymond C. Fisher, Richard A. Paez and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Fisher.

OPINION

FISHER, Circuit Judge:

After a five-day trial, a federal jury convicted Johnny Brown of 14 counts of wire fraud, making false statements to a financial institution and tax evasion. While the jury was deliberating, one of the jurors became ill and asked to be excused. Brown requested that the district court seat an alternate juror rather than proceed with 11 jurors. The court denied Brown's request, excused the juror and directed

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the 11-person jury to continue its deliberations, citing Federal Rule of Criminal Procedure 23(b)(3). Later that day, the jury returned a guilty verdict.

Brown argues Rule 23(b)(3) does not authorize a court to proceed with 11 jurors over a defense objection when alternates are available. Alternatively, he argues the court abused its discretion by proceeding with 11 jurors rather than seating an alternate here, because the trial and deliberations had been brief.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We hold courts have discretion under Rule 23(b)(3) to proceed with 11 jurors after excusing a juror for good cause during deliberations, even when alternates are available. We also hold the court did not abuse its discretion by proceeding with 11 jurors. The jury had deliberated for more than a day and had asked and received answers to five substantive questions. If the court had seated an alternate, it would have had to direct the jury to begin deliberations anew, see Fed. R. Crim. P. 24(c)(3), adding at least a day to the proceedings and imposing on the jurors the difficult task of discarding any conclusions they had already reached.[1]

BACKGROUND

Brown was charged with seven counts of wire fraud, six counts of making false statements to a financial institution and one count of tax evasion. The charges for wire fraud and false statements to a financial institution arose from a scheme through which Brown generated roughly $5 million in fraudulent sales transactions by swiping 596 credit cards ...


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