United States v. Georgina Guerrero-Peralta

Summary

The Ninth Circuit considered whether a defendant's conviction was valid after the case was submitted to an eleven-member jury. The court held that Rule 23(b), Federal Rules of Criminal Procedure, requires a written stipulation or an on-the-record showing that the defendant personally gave express, intelligent, and knowing consent to the reduced jury size. Because that showing was absent, the court reversed the conviction.

Holdings

1. An oral stipulation may satisfy Rule 23(b) only if the record shows that the defendant personally gave express consent in open court, intelligently and knowingly, to proceeding with fewer than twelve jurors.
2. Defense counsel's assertion that the defendant consented, even coupled with the defendant's presence and failure to protest, is insufficient to establish the required knowing and intelligent consent.

Questions Presented

1. Whether an oral stipulation to proceed with an eleven-member jury satisfies Federal Rule of Criminal Procedure 23(b) when the defendant does not personally give express consent in open court.
2. Whether defense counsel's assertion that the defendant agreed to proceed, combined with her presence and silence, establishes the knowing and intelligent consent required to waive a twelve-member jury.

Disposition

reversed