Olano

dissenting:

As the majority explains, we now consider for the first time one of the errors that occurred during the trial of this case — the error of the absent juror. Previously, we considered a different and less egregious error but were reversed by the Supreme Court after it found that, while the error occurred, it did not constitute plain error. In reaching this conclusion, the Court “clarified” the requirements of Rule 52(b), the plain error rule. The majority now applies those clarified requirements; however, in doing so, it errs. It fails to examine the kind of error involved, and confuses the question of the reliability of the verdict with the question of the existence of a structural defect in the proceedings. Had the majority performed the proper analysis for determining structural error, it would be required to conclude, as I do, that the absence of one or more jurors during a portion of the taking of trial testimony constitutes a structural defect. In my opinion, we not only have the authority to correct the fundamental error we now consider, but the nature of that error compels the exercise of our discretion. Accordingly, I dissent.

* * *

To briefly summarize the…

Opinion by Judge O’SCANNLAIN; Dissent by Judge REINHARDT.

The Supreme Court having decided that the presence of alternate jurors during deliberations was not erroneous, we now decide, among myriad remaining issues, whether a juror’s stipulated absence from a half-day of trial testimony is permissible.

I

Olano and Gray participated in a complicated kickback scheme in which individuals abused their control of various financial institutions to grant unauthorized loans and extensions of credit to each other. The government brought various bank fraud charges against the two men in a multi-count indictment. A jury found Olano guilty of six counts of the indictment, and Gray guilty of eight.

On appeal, we reversed Olano’s convictions under two of these counts, and Gray’s convictions under three, for lack of sufficient evidence. United States v. Olano, 934 F.2d 1425, 1428 (9th Cir.1991) (Olano I). We also vacated both Olano’s and Gray’s convictions under all remaining counts for plain error because alternate jurors were present with the jury during deliberations. Id. The Supreme Court granted certiorari and reversed this portion of our decision, holding that permitting the presence of…