United States of America v. JOHNNY BROWN, AKA Mickey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY BROWN, AKA Mickey,
Defendant-Appellant.
No. 11-30379
D.C. No.
3:06-cr-000385-KI-1
OPINION
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
March 3, 2015—Portland, Oregon
Filed May 1, 2015
Before: Raymond C. Fisher, Richard A. Paez
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Fisher

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UNITED STATES V. BROWN 2
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.
COUNSEL
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.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. BROWN 3
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 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

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UNITED STATES V. BROWN 4
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
belonging to 154 people through a credit card machine
provided to his business by U.S. Bank.
Brown pled not guilty and proceeded to a jury trial. The
court seated 12 jurors and two alternates. The trial lasted five
days. The government called 26 witnesses and introduced 80
exhibits. When the 12 jurors began deliberations, the court
allowed the two alternates to leave. The court, however, did
not discharge them:
At this point you will not go into the jury
room, but you continue to be alternates until
the jury is dismissed. So in the event that
something happened to one of the jurors and
they couldn’t continue, you would be called to
step in. Now, for that reason, you must
continue to follow the instructions I’ve given
you about not making any decision in the
case, not talking to anyone about the case. . . .
Just continue to follow these instructions. We
1 We address Brown’s remaining arguments in a concurrently filed
memorandum disposition.

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UNITED STATES V. BROWN 5
will advise you immediately if you are
needed, and we will advise you when the jury
reaches a verdict. If they reach a verdict,
we’ll advise you that you can be excused. So
at this point, you’re not discharged, but you
may leave, and we’ll call you if we need you.
During deliberations, the jury posed five substantive
questions to the court. The court convened the parties’
counsel by teleconference and prepared responses. After one
day of deliberations, a juror became ill and asked to be
excused. The next morning, the court informed the parties’
counsel of the issue and asked if they would stipulate to an
11-person jury under Rule 23(b)(2).2 The government
2 Rule 23(b) states:
(1) In General. A jury consists of 12 persons unless
this rule provides otherwise.
(2) Stipulation for a Smaller Jury. At any time before
the verdict, the parties may, with the court’s approval,
stipulate in writing that:
(A) the jury may consist of fewer than 12 persons; or
(B) a jury of fewer than 12 persons may return a verdict
if the court finds it necessary to excuse a juror for good
cause after the trial begins.
(3) Court Order for a Jury of 11. After 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).

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UNITED STATES V. BROWN 6
agreed, but the defense objected. The defense requested that
the court instead seat an alternate, arguing, “[i]t’s taken years
to get . . . to trial, and to add a day to deliberations for an
alternate to be brought up to . . . speed does not seem
particularly onerous to me.” The court disagreed, saying,
“[i]f we bring [the alternate jurors] back, we’ve got to run
them down, get them back, and the jury has to start over. . . .
And we have 14 counts. And if this jury, for example, has
made decisions on any number of counts, let’s say 12 or 13
or whatever, that goes out the window and they’ve got to start
over with the alternate and have discussions and then vote on
it.”
The court then questioned the ill juror, and both parties
agreed she should be excused. The court excused the juror,
and then concluded, “based on the authority granted in Rule
23(b)(3) and based on the circumstances that we have on the
record, I will instruct the jury to continue deliberating with 11
and that all 11 members of the jury must agree on the
verdict.” Later that day, the 11-member jury returned a guilty
verdict on all 14 counts. Brown appeals.
STANDARD OF REVIEW
We review de novo a district court’s interpretation of the
Federal Rules of Criminal Procedure. See United States v.
Fort, 472 F.3d 1106, 1109 (9th Cir. 2007). We review for an
abuse of discretion a court’s decision to proceed with 11
jurors under Federal Rule of Criminal Procedure 23(b)(3).
See United States v. Egbuniwe, 969 F.2d 757, 758, 760–61
(9th Cir. 1992).

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UNITED STATES V. BROWN 7
DISCUSSION
The Sixth Amendment guarantees a criminal defendant’s
right to a jury trial. See Duncan v. Louisiana, 391 U.S. 145,
149 (1968). It does not, however, guarantee a criminal
defendant’s right to a jury of 12 persons. See Williams v.
Florida, 399 U.S. 78, 100–03 (1970). In 1946, however,
Federal Rule of Criminal Procedure 23 went into effect,
guaranteeing 12-person juries in federal criminal trials, absent
a stipulation by the parties to a jury of fewer than 12 persons.
See Fed. R. Crim. P. 23(b) (1946). Before Rule 23 was
adopted, Federal Rule of Criminal Procedure 24 required
courts to discharge alternate jurors when the jury retired to
deliberate. See Fed. R. Crim. P. 24(c) (1946); United States
v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993) (quoting 2
Charles A. Wright, Federal Practice & Procedure, § 388 at
390 (1982)). Therefore, if a juror was excused during
deliberations and the parties did not stipulate to a jury of
fewer than 12 persons, the court was required to declare a
mistrial.
In 1983, Rule 23(b) was amended to provide district
courts discretion to proceed with 11 jurors after excusing a
juror for good cause during deliberations, even without a
stipulation by the parties. See Fed. R. Crim. P. 23(b)(3). The
purpose of this amendment was to provide courts an
alternative to declaring a mistrial, particularly after long
trials, when “the remedy of mistrial would necessitate a
second expenditure of substantial prosecution, defense and
court resources.” Fed. R. Crim. P. 23(b) advisory
committee’s notes (1983 amendment).

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UNITED STATES V. BROWN 8
The 1983 advisory committee declined to amend Rule 24
to allow courts to retain alternates after deliberations have
begun, explaining:
[I]t is far better to permit the deliberations to
continue with a jury of 11 than to make a
substitution at that point. . . . Even were it
required that the jury “review” with the new
juror their prior deliberations or that the jury
upon substitution start deliberations anew, it
still seems likely that the continuing jurors
would be influenced by the earlier
deliberations and that the new juror would be
somewhat intimidated by the others by virtue
of being a newcomer to the deliberations.
Id.
Notwithstanding these concerns, Rule 24(c) was amended
in 1999 to give district courts discretion to retain alternates
after deliberations have begun. See Fed. R. Crim. P.
24(c)(3).3 This amendment was designed to provide courts an
3 Rule 24(c) states:
(c) Alternate Jurors.
(1) In General. The court may impanel up to 6 alternate
jurors to replace any jurors who are unable to perform
or who are disqualified from performing their duties.
(2) Procedure.
(A) Alternate jurors must have the same qualifications
and be selected and sworn in the same manner as any
other juror.

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UNITED STATES V. BROWN 9
additional alternative to declaring a mistrial after excusing a
juror during deliberations. The advisory committee did not
provide clear guidance for district courts when choosing
among these options. It said only:
Rule 23(b) provides that in some
circumstances a verdict may be returned by
eleven jurors. In addition, there may be cases
where it is better to retain the alternates when
the jury retires, insulate them from the
deliberation process, and have them available
should one or more vacancies occur in the
jury. That might be especially appropriate in
a long, costly, and complicated case. To that
end the Committee believed that the court
should have the discretion to decide whether
to retain or discharge the alternates at the time
the jury retires to deliberate and to use Rule
23(b) to proceed with eleven jurors or to
(B) Alternate jurors replace jurors in the same sequence
in which the alternates were selected. An alternate
juror who replaces a juror has the same authority as the
other jurors.
(3) Retaining Alternate Jurors. The court may retain
alternate jurors after the jury retires to deliberate. The
court must ensure that a retained alternate does not
discuss the case with anyone until that alternate
replaces a juror or is discharged. If an alternate
replaces a juror after deliberations have begun, the
court must instruct the jury to begin its deliberations
anew.
Fed. R. Crim. P. 24(c)(1)–(3).

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UNITED STATES V. BROWN 10
substitute a juror or jurors with alternate
jurors who have not been discharged.
Fed. R. Crim. P. 24(c) advisory committee’s notes (1999
amendment).
Thus, as currently constituted, the Rules provide courts
three options after excusing a juror for good cause during
deliberations: (1) declare a mistrial; (2) proceed with 11
jurors; or (3) seat an alternate. Brown contends Rule 23(b)
does not authorize the court to proceed with 11 jurors when
alternates are available. In the alternative, he argues even if
such authority exists, the court abused its discretion by
exercising it here. We reject both arguments.
I. District 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 reject Brown’s contention that the Rules preclude a
court from proceeding with 11 jurors when alternates are
available. First and foremost, his interpretation finds no
support in the plain language of Rule 23(b)(3). Rule 23(b)(3)
expressly authorizes a court to proceed with 11 jurors after a
juror is excused for good cause during deliberations, and
nothing in the language of Rule 23 or Rule 24 precludes a
court from exercising that authority when alternates are
available.
Second, the advisory committee’s notes to Rules 23 and
24 do not suggest otherwise. Brown relies on the 1983
advisory committee’s notes to Rule 23, which say Rule 23
was amended to allow for 11-juror verdicts to address the

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UNITED STATES V. BROWN 11
“situation . . . in which, after the jury has retired to consider
its verdict and any alternate jurors have been discharged, one
of the jurors is seriously incapacitated or otherwise found to
be unable to continue service upon the jury.” Fed. R. Crim.
P. 23(b) advisory committee’s notes (1983 amendment)
(emphasis added). Brown argues the notes show Rule 23(b)
was intended to apply only when alternate jurors have been
discharged.
When the advisory committee drafted this language in
1983, though, alternate jurors had to be discharged before
deliberations began. See Mullins, 992 F.2d at 1478. The
1983 notes, therefore, merely recognized that the amendment
to Rule 23(b) was intended to give courts an alternative to
declaring a mistrial. They did not suggest that, if a
subsequent rule change were to give courts the additional
alternative of retaining alternates during deliberations, courts
would have to seat available alternates rather than proceed
with 11 jurors. Furthermore, the 1999 advisory committee’s
notes to Rule 24(c) confirm that a court that has elected to
retain alternates “should have the discretion” to “use Rule
23(b) to proceed with eleven jurors or to substitute a juror or
jurors with alternate jurors who have not been discharged.”
Fed. R. Crim. P. 24(c)(3) advisory committee’s notes (1999
amendment) (emphasis added).
Finally, two circuits that have addressed this question
have agreed that a court retains discretion to proceed with 11
jurors even when alternates are available. See United States
v. Hively, 437 F.3d 752, 766–67 (8th Cir. 2006) (affirming
district court’s decision to proceed with 11 jurors rather than
seat an alternate); United States v. Levenite, 277 F.3d 454,
464–65 (4th Cir. 2002) (same).

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UNITED STATES V. BROWN 12
In light of the plain language of Rules 23 and 24, as well
as the advisory committee’s notes, we join these circuits and
hold a district court has discretion to proceed with 11 jurors
after excusing a juror during deliberations, even when
alternates are available.
II. The court did not abuse its discretion by proceeding
with 11 jurors
We also hold the district court permissibly exercised its
discretion by proceeding with 11 jurors after excusing a juror
for good cause, rather than seating an alternate. The jury had
deliberated for over a day following a five-day trial. The jury
had asked five substantive questions, and the court and parties
had spent significant time considering and responding to
them. The jury returned a verdict within a few hours after the
ill juror was excused. As the district court explained, the case
involved 14 counts, and after a day of deliberations the jury
might well have decided certain issues:
[I]f we call the alternates, they’ve got to start
over with whatever count they began with,
with these alternates, and go through a
process. So we’re talking about a fair amount
of time to bring – to get the alternates in and
to bring them up to date. . . . And we have 14
counts. And if this jury, for example, has
made decisions on any number of counts, let’s
say 12 or 13 or whatever, that goes out the
window and they’ve got to start over with the
alternate and have discussions and then vote
on it.

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UNITED STATES V. BROWN 13
This was a reasonable assessment of the situation. If the
court had substituted an alternate, the jury would have been
required to begin deliberations anew, discarding the
substantial work it, the parties and the court had done. See
Hively, 437 F.3d at 766–67 (affirming an 11-juror verdict
when a juror was excused after a day and a half of
deliberations, explaining “[t]he case involved multiple counts
for the jury to consider, and the district court worried that the
original twelve jurors might have already decided factual
issues”); Levenite, 277 F.3d at 464–65 (affirming an 11-juror
verdict when a juror was excused after two days of
deliberations in a complex case involving several defendants
and counts).4
The jurors also would have had to attempt to disregard
any conclusions they had reached on any of the 14 counts at
issue. To be sure, Rule 24 requires courts to instruct juries to
begin deliberations anew, see Fed. R. Crim. P. 24(c)(3), and
we generally presume that juries follow a court’s instructions.
See Weeks v. Angelone, 528 U.S. 225, 234 (2000).5
4 Brown’s reliance on United States v. Tabacca, 924 F.2d 906, 914–15
(9th Cir. 1991), is misplaced. In Tabacca, the district court had excused
a juror and allowed an 11-juror verdict. On appeal, we did not address
whether the court abused its discretion by failing to seat an available
alternate. Indeed, because the trial occurred before the 1999 amendment
to Rule 24, the court was required to discharge alternates when
deliberations began. See Mullins, 992 F.2d at 1478. Instead, we held there
was an absence of “just cause” under Rule 23(b)(3) to excuse the juror,
because he likely would have been able to return after a one-day absence.
Tabacca, 924 F.2d at 914–15. Here, Brown concedes there was good
cause to excuse the twelfth juror. Tabacca is inapposite.
5 Ninth Circuit Model Criminal Jury Instruction 7.12 recognizes at least
part of the challenge the jury faces in starting deliberations anew:
“Although starting over may seem frustrating, please do not let it

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UNITED STATES V. BROWN 14
Nonetheless, it has been widely recognized that jurors may
not be able to set aside their conclusions and that an alternate
may be intimidated, choosing to go along with other jurors’
views rather than exercise independent judgment. See, e.g.,
United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir. 1975)
(en banc) (“The inherent coercive effect upon an alternate
juror who joins a jury that has . . . already agreed that the
accused is guilty is substantial.”); Hively, 437 F.3d at 767
(“While [the court] could have instructed the jury to start its
deliberations anew after seating an alternate, the court was
concerned that thirteen jurors could potentially be involved in
deciding issues and that this would undermine the validity of
any verdict.”); Fed. R. Crim. P. 23(b) advisory committee’s
notes (1983 amendment) (recognizing, even after receiving an
instruction to begin deliberations anew, jurors may be
“influenced by the earlier deliberations,” and the alternate
may be “somewhat intimidated by the others by virtue of
being a newcomer to the deliberations”).
We are not persuaded by Brown’s argument that, “[b]y
adopting” the amendment to Rule 24(c) that allows the
substitution of alternates during deliberations, “Congress also
rejected” these concerns. The 1999 advisory committee’s
notes to Rule 24(c) do not address the concerns the prior
committee had expressed in 1983. The rules appear simply
to give courts the discretion to weigh the concerns against
other issues presented in individual cases. The extent of the
discourage you. It is important that each juror have a full and fair
opportunity to explore his or her views and respond to the views of others
so that you may come to a unanimous verdict. All the previous
instructions given to you, including the unanimity requirement for a
verdict, remain in effect.” Ninth Circuit Model Criminal Jury Instruction
7.12.

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UNITED STATES V. BROWN 15
risks associated with seating an alternate juror will vary from
case to case. When deliberations have been extended, jurors
are more likely to have reached firm conclusions on certain
issues, and alternates may be at a greater risk of intimidation.
When deliberations have been brief, those risks are likely
reduced.6
Here, the jury had deliberated for over a day in a complex
case involving 14 counts. Significantly, the jury had asked
and received answers to five substantive questions.
Substituting an alternate likely would have imposed
substantial additional work on the jury, the parties and the
court. It also would have required the jurors to attempt to
clear their minds of any conclusions they had reached. The
court weighed these considerations and concluded that
“justice would best be served by proceeding with a jury of 11
individuals.” Under these circumstances, the district court
did not abuse its discretion.7
6 In cases occupying neither extreme, a district court’s decision either to
seat an alternate juror or to proceed with 11 jurors may not be an abuse of
discretion. We do not suggest the facts of this case required the district
court to chart a particular course, merely that the decision it made was not
“illogical, implausible, or without support in inferences that may be drawn
from the record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.
2009) (en banc).
7 Brown does not argue the district court abused its discretion by opting
to proceed with 11 jurors rather than declaring a mistrial. See Fed. R.
Crim. P. 23(b) advisory committee’s notes (1983 amendment) (explaining
that when a “trial has been brief and not much would be lost by retrial, the
court might well conclude that the unusual step of allowing a jury verdict
by less than 12 jurors absent stipulation should not be taken,” and instead
declare a mistrial). We therefore do not address that issue.

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UNITED STATES V. BROWN 16
CONCLUSION
We affirm the judgment of the district court.
AFFIRMED.

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