In United States v. Johnson, No. 22-1289 (2d Cir. Sept. 6, 2024), while that panel agrees that the district court erred under Federal Rule of Criminal Procedure 23(b) by allowing the case to go to deliberation with just eleven jurors, it splits over the impact of the error. The panel majority holds that the rule violation is subject to harmless-error review, while the dissenting judge would hold that the error is structural and thus mandates a retrial. The decision creates a split with the Fourth Circuit, United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003).
The defendant was convicted after a five-day trial of making threatening interstate communications and of threatening United States officials. (He was charged with sending death threats via social media and with posting videos of himself online making threats to Senator Joe Manchin and several Fox News reporters.)
“During the five-day jury trial in February 2022, the district court dismissed three jurors: Alternate No. 2, Juror No. 7, and Juror No. 2. The district court dismissed Alternate No. 2 on the second day of the trial due to a medical emergency. It dismissed Juror No. 7 and Juror No. 2 on the final day of the trial—just hours before the jury retired to deliberate—due to a lack of childcare arrangements and a finding of bias, respectively. The three dismissals reduced the jury to eleven members.”
The “hours before . . . retir[ing] to deliberate” makes all the difference in this case. Fed. R. Crim. P. 23(b) authorizes a jury of eleven “[a]fter the jury has retired to deliberate,” but before that a jury of fewer than twelve may only be accepted by stipulation of the parties, and here the parties were never invited to so stipulate (and indeed, the defendant objected).
The eleven-member jury convicted the defendant, and he was sentenced to two years in prison.
The panel majority affirms the conviction. While agreeing that the truncated jury violated Rule 23(b), it was faced with the question of consequence that had for the verdict. The panel majority holds that such an error—a violation of a rule of criminal procedure, rather than a fundamental constitutional right—could be reviewed for harmless error.
The panel majority observes that Rule 23 incorporates the “venerable common law tradition” that a judge may reduce a jury to eleven members for good cause. The twelve-member jury itself is a product of rule and historical tradition, but under Williams v. Florida, 399 U.S. 78 (1970), and other authority, it is not guaranteed by the Sixth Amendment. “These prior precedents—holding that the right to a twelve-member jury is neither a constitutional nor even a substantial right—mean that a violation of Rule 23(b)’s twelve-member requirement cannot amount to a structural error.”
Structural error, holds the panel majority, can only arise only from a “violation of bedrock constitutional rights.” Thus, “[i]f the general rule applies to all constitutional errors beyond a select few at the constitutional ‘bedrock,’ it necessarily applies to non-constitutional errors that are even further removed from that foundation.” The panel majority acknowledges its departure from the Fourth Circuit’s prior holding that trying a felony case to an eleven-person jury without consent is a structural error.
Because the error is deemed not to be structural, the panel majority applies harmless-error review and holds that the defendant was not prejudiced. “[T]he strength of the government’s case is the most critical factor in assessing whether error was harmless,” and here the panel majority holds that the weight of the evidence of the violation was so overwhelming that the absence of a twelfth-juror could not have changed the outcome.
Dissenting, Judge Chin would hold—in agreement with the Fourth Circuit—that trying a felony case to a jury of eleven is a structural error requiring an automatic retrial. “Even assuming a defendant does not have a constitutional right to a twelve-person jury, the Federal Rules of Criminal Procedure give a defendant that right in a federal criminal case, a right that can be circumscribed only in the limited circumstances specified in Rule 23(b). The requirement of a twelve-person jury rendering a unanimous verdict is part of the fundamental framework within which a federal criminal trial operates, and has been a critical aspect of our criminal justice system for hundreds of years.” (Alternatively, the dissent would have found the error prejudicial.)
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