following some other course other than substitution of an alternate.
This judge has been and is presently a member of the Supreme Court Advisory Committee on the Federal Rules of Criminal Procedure. In 1982 the Advisory Committee proposed an amendment to Fed.R.Cr.P. 23(b).
As amended, effective August 1, 1983, this rule reads as follows: "Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more juror for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors. "
The underscored portion was what was added by amendment. The amendment addresses the specific problem of how to deal with the situation involving the necessity of excusing a juror after deliberations of the jury have been underway. Cases such as United States v. Phillips, supra, had projected the matter to the attention of the Advisory Committee. Thereafter, the Advisory Committee had submitted to the bench and bar alternate courses for dealing with the Phillips situation. One course was to amend Rule 24 so that, as in Phillips, alternates could be substituted for jurors who, during deliberations, were no longer able to serve. The other procedure that was advanced was permitting the judge to excuse a juror and proceed with 11 jurors.
The response of the bench and bar to these proposals resulted in the Advisory Committee adopting the second of these two procedures, resulting in the amendment to Rule 23(b).
The court is frank to say that had it been confronted with the necessity of excusing two jurors, it would have seriously considered substituting the two alternates. This is because the amendment to Rule 23(b) does not allow the court, on its own motion, to go below 11 jurors, always assuming of course that "just cause" exists for excusing one juror. Fortunately, however, the hearing that was immediately conducted demonstrated that only one juror had been exposed to Court Exhibit 22(b), and thus only he had to be excused.
Counsel for the defendants contended that, given the line of cases represented by Phillips and their unanimous agreement on substituting an alternate, the court had to follow that course. What counsel overlooked was the fact that the very reason for the 1983 amendment to Rule 23(b) was to deal with the Phillips situation. Indeed, the trial judge in Phillips had to adopt a procedure in violation of Rule 24(c) because there was no provision at that time in Rule 23(b) to permit him to proceed with a jury of 11.
Moreover, as is set forth in the extensive Advisory Committee note, there are several profound difficulties in substituting an alternate after a jury has been deliberating for many hours, here well over 20 hours. Since they are set forth in the notes, I will not repeat them here.
While recognizing that had the court been required to excuse two jurors and thus substitute two alternates, or at least one, it would have had to confront the problems referred to in the Advisory Committee note, there can be no question but that Rule 23(b) is the better solution where only one juror has to be excused; indeed, it is the only procedure now permitted by the rules, after consideration had been given by the Advisory Committee to the Phillips line of cases.
Only two more points need be addressed. First, the decision to proceed with 11 jurors rather than declare a mistrial cannot be questioned. The trial itself consumed 6 weeks; the jury deliberations had already lasted over 20 hours. Given this investment of judicial resources, a declaration of a mistrial would have been unthinkable in view of the alternative furnished by Rule 23(b). Moreover, all defense counsel, with one possible exception, stated that they did not want a mistrial. The defendant most directly affected, Mario Gambino, was vehement in his objection that a mistrial not be declared. Indeed, his counsel stated that his client had told him that he did not want to go through another trial. Parenthetically, it is noted that the jury ultimately acquitted this defendant. In any event, having found "just cause" as hereinabove discussed, the court exercised its discretion to proceed under Rule 23(b).
Finally, counsel for the defendants, in urging that this court proceed to substitute an alternate, did not attack Rule 23(b). Thus, the record is barren of any argument by defense counsel that somehow Rule 23(b) was flawed or faulted. Certainly, it cannot now be contended that there is any imperfection, constitutional or otherwise, in the procedure permitted under Rule 23(b).
For the foregoing reasons, the application made by the defendants for substitution of an alternate, rather than proceeding under Rule 23(b), was denied.