Metropolitan News-Enterprise


Monday, May 4, 2015


Page 1


Panel Upholds Use of 11-Member Jury in Criminal Case


By a MetNews Staff Writer


A U.S. district judge did not violate the Federal Rules of Criminal Procedure by allowing a jury to deliberate to a verdict with 11 members after one of the jurors was excused with good cause, even though alternates were available, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Senior Judge Raymond Fisher said that U.S. District Judge Garr M. King of the District of Oregon had discretion to proceed with 11 jurors under Rule 23, and that he had good cause to allow the remaining 11 jurors to finish the trial.

The defendant, Johnny “Mickey” Brown, of Beaverton was sentenced to 130 months in prison in 2011. The 11 jurors found him guilty of all 14 counts in an indictment charging him with wire fraud, false statement to a financial institution, and tax evasion. He also was sentenced to five years on supervised release.

Jurors heard evidence that Brown obtained credit card numbers from nearly 600 people by persuading them that the money would be used to purchase an interest in his vacuum cleaner business. He then ran the numbers through his credit card terminal, falsely identifying the transactions as sales of merchandise, obtaining $5 million.

According to a Justice Department press release issued at time of sentencing, the money went to, among other things, “an elegant home and wardrobe, private education for his children, high-end vehicles, and large donations to the Living Water Christian Assembly in Albany, Oregon.”

The bank wound up taking a loss of over $4 million as a result of the scheme, the government said.

The jury was reduced to 11 members when the 12th juror became ill after one day of deliberations.

In rejecting the defense request that one of the two alternates be summoned to replace the excused juror, King commented:

“If we bring [the alternate jurors] back, we’ve got to run them down, get them back, and the jury has to start over. . . .And we have 14 counts. And if this jury, for example, has made decisions on any number of counts, let’s say 12 or 13 or whatever, that goes out the window and they’ve got to start over with the alternate and have discussions and then vote on it.”

It took the remaining jurors less than a day to reach a verdict on all counts.

In concluding that the district judge took an acceptable course, Fisher wrote:

“This was a reasonable assessment of the situation. If the court had substituted an alternate, the jury would have been required to begin deliberations anew, discarding the substantial work it, the parties and the court had done…

“The jurors also would have had to attempt to disregard any conclusions they had reached on any of the 14 counts at issue. To be sure, Rule 24 requires courts to instruct juries to begin deliberations anew…and we generally presume that juries follow a court’s instructions…. Nonetheless, it has been widely recognized that jurors may not be able to set aside their conclusions and that an alternate may be intimidated, choosing to go along with other jurors’ views rather than exercise independent judgment.”

Fisher was joined by Judges Richard A. Paez and Sandra S. Ikuta.

The case is United States v. Brown, 11-30379.


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