United States v. Danuario Reyes

After the twelve person jury had been impaneled and one juror was excused for a physical disability, the prosecution and counsel for appellant Reyes entered into an oral stipulation to proceed with an eleven person jury. It is rather apparent that the parties and respective counsel were not aware of the provisions of Fed.R.Crim.P. 23(b), which impose a requirement of a stipulation in writing signed by the parties and approved by the court before proceeding with a jury of less than twelve.

After discovery of the disabled juror, the following exchange occurred:

Following the guilty verdict, a hearing on defendant’s motion for a new trial was held. The court questioned defendant’s lawyer:

After denial of defendant’s motion for a new trial, the trial court at the sentencing proceeding addressed the defendant directly. The following exchange occurred:

The issue before us is whether the above exchanges were sufficient to satisfy the requirements of Fed.R.Crim.P. 23(b).

In United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971), this court stated that “an oral stipulation may, under certain circumstances, satisfy the Rule [Rule 23(b)], but it must appear from the record…