United States v. Johnny Brown

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…