District court erred in allowing eleven-person jury to convict the defendant, but the error is (1) not structural and (2) harmless under harmless-error analysis.

Judge Menashi’s opinion for the majority in United States v. Ricky Johnson, 2d Cir. No. 22-1289 (Sep. 6, 2024) (Menashi, joined by Englemayer, D.J.) affirms Johnson’s conviction for making threats, but creates a circuit split –and provokes a strong dissent from Judge Chin – in the process. Johnson (represented by this Office) challenged his conviction on several grounds, but the focus is his Rule 23 argument.

Specifically, Johnson argued that the district court erred when, before the jury retired to deliberate, it (1) dismissed a juror for cause over defense objection; and then (2) allowed the remaining eleven-person jury to proceed and then to deliberate (and convict) without a written stipulation from the parties. Johnson contends that his conviction by the eleven-person jury is structural error, warranting a new trial without consideration of harmlessness.

Everyone agrees with Johnson that the district court erred: Under Rule 23, a district court has discretion to permit an eleven-person jury “only [1] upon the parties’ written stipulation or [2] for good cause ‘[a]fter the jury has retired to deliberate.” Dissent at 1 (quoting Fed. R. Crim. P. 23(b)(3)) (emphases in opinion). Here, the court allowed the case to go to an eleven-person jury before deliberation and without a written stipulation. That violated Rule 23.

But the majority concludes that this error is harmless and affirms.

Judge Menashi first rejects Johnson’s argument that the error is structural and not amenable to harmlessness analysis. Op. 12-18. This creates a circuit split – the Fourth, Sixth, Ninth, and D.C. Circuits apparently hold otherwise. Id. 15-16 n.4. Judge Menashi then applies harmlessness analysis to the error and finds it harmless. Id. 19-21.

As noted, Judge Chin dissents – and has the better of the argument. First, a new trial is required because the error is structural. Diss. 9-20. Second, even if harmlessness review governed, a new trial is required because the Government cannot meet its burden of showing harmlessness. Id. 21-26.