United States v. Georgina Guerrero-Peralta

Guerrero-Peralta appeals from her conviction on two counts charging violations of 21 U.S.C. § 176a. We need consider only her contention that, in submitting the case to an eleven-man jury, the court failed to comply with Rule 23(a), F.R. Crim.P. We reverse.

When the jury retired, the forelady sent a note to the court indicating that a file containing documents that were not in evidence was found in the jury room. The jury was recalled to the courtroom and the jurors were questioned by the judge as to how much of the file they had seen. As a result, the forelady was excused. Defense counsel said that he would have no objection to substituting the alternate juror. The court replied that the alternate juror “has gone home. The only thing we can do is excuse her and go on with eleven jurors.” Defense counsel asked permission to “check with the defendant for a moment.” After doing so, he said “She wants to go ahead, your honor. I would agree with that.” Defense counsel and counsel for the government then stipulated orally to a verdict by eleven jurors. No one mentioned Rule 23(b); counsel should have called it to the court’s attention but did not do so. Rule 23(b), F.R.Crim.P.,…