United States v. Sakhawat Ullah, Jr., United States of America v. Mary Katherine Gosho-Kim

Sakhawat Ullah and Mary Katherine Gosho-Kim appeal their convictions on counts of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324 (a)(1)(B) and 18 U.S.C. § 2 . Among other things, Ullah and Gosho-Kim contend that the district court improperly empaneled a fourteen-person jury and permitted it to deliver a nonunanimous guilty verdict. They are correct.

During jury selection, the district court chose fourteen people — twelve jurors and two alternates — to serve as Ullah and Gosho-Kim’s jury. In the course of the two-week trial, the attention of one of the alternate jurors began to flag, and she asked to be excused. The district court believed, perhaps correctly, that the problem with the alternate juror was caused by her realization that she would be unable to deliberate with the regular jurors and otherwise participate in the outcome of the trial. See United States v. Olano, 934 F.2d 1425, 1437-39 (9th Cir.1991), cert. granted, — U.S.-, 112 S.Ct. 1935 , 118 L.Ed.2d 542 (1992) (holding that alternate jurors cannot be present during or participate in jury deliberations).

The district court, sua sponte, proposed to remedy the alternate juror…